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Per Curiam:
This is a direct appeal in a criminal action in which the defendant-appellant, Warren Smith, was tried by a jury and convicted of aggravated robbery. (K.S.A. 21-3427.)
At the outset we are asked to determine whether appellant has perfected his appeal within the statutory time giving this court jurisdiction to hear the case. It is the position of the state that the appellant has waived his right to appeal. The'record discloses that defendant Smith was convicted of aggravated robbery on March 22,1974. Sentence was imposed on April 11,1974. No appeal was taken by defendant from the order of April 11, 1974.
On September 5, 1974, some 147 days after the original sentencing, the Court entered an order stating in part, “The Court . . . vacates the sentence of April 11, 1974. . . .” This order of the trial court was based largely on a report from the Kansas Reception and Diagnostic Center finding that the defendant was in need of psychiatric care and treatment.
K.S.A. 22-3608 provides:
“. . . (1) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court’s power to modify the sentence. . . .”
The district court has 120 days to modify the sentence as provided by K.S.A. 1976 Supp. 21-4603(2). Therefore, under the typical statutory scheme the defendant has a maximum of 130 days from time of sentencing to file his notice of appeal.
The order of September 5, 1974, purporting to vacate the sentence of April 11, 1974, also referred the defendant to Larned State Security Hospital pursuant to K.S.A. 22-3430 for a mental evaluation and treatment. On December 12,1975, the court found the defendant was no longer in need of psychiatric care and treatment and again sentenced the defendant to the custody of the Secretary of Corrections, pursuant to K.S.A. 22-3431. The defendant then filed his notice of appeal on December 30, 1975. This notice was well within 130 days from the second sentencing but over 20 months from the time of original sentencing.
The right of appeal is entirely a statutory right; no appellate review is required by the federal constitution, Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, or the Kansas Constitution. (State v. Hanes, 187 Kan. 382, 357 P.2d 819; Nall v. State, 204 Kan. 636, 465 P.2d 957.) It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. (State v. Sims, 184 Kan. 587, 337 P.2d 704; State v. Shores, 185 Kan. 586, 345 P.2d 686; and State v. Thompson and Pennington, 221 Kan. 165, 558 P.2d 1079.) The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal. (State v. Shehi, 185 Kan. 551, Syl. 1, 345 P.2d 684; State v. Mitchell, 210 Kan. 470, 502 P.2d 850; and State v. Thompson and Pennington, supra.)
No appeal having been taken within the statutory time from the order of April 11, 1974, this court is without jurisdiction.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is a direct appeal by defendant, Brian J. Nixon, from convictions in a trial to the court of one count of rape (K.S.A. 21-3502) and one count of aggravated sodomy (K.S.A. 21-3506[o]). Defendant was found not guilty of aggravated kidnapping (K.S.A. 21-3421).
In view of the limited issues considered on appeal we do not deem it necessary to go to great lengths in setting forth the facts and will limit them to those pertinent to the issues considered.
Defendant, a resident of Great Bend, and Karen Dikeman, a resident of Wichita, became acquainted at a Wichita tavern in the early fall of 1975. On the night of October 10, 1975, defendant telephoned Miss Dikeman from Great Bend, asked if he could come to Wichita, stay at Miss Dikeman’s grandfather’s house where she lived and take her out on a date the next night. Miss Dikeman said it would be all right. Defendant arrived at her grandfather’s around 3:00 a.m. October 11, 1975. He and Miss Dikeman had a soft drink, left the house to smoke some marijuana, then returned and spent the rest of the night in separate bedrooms. They were together most of Saturday and in the evening departed from the house to go on a date. They rode around, stopped at a couple of taverns to buy six-packs of beer, smoked some more marijuana and eventually drove to a secluded spot in a pasture in eastern Sedgwick County where defendant parked the car.
At this point a sharp divergence in the testimony develops. Miss Dikeman contends she was taken into the country against her will, that she feared for her life, that she tried to escape several times, that defendant, over a period of two to three hours, forcibly raped her three or four times and forced her to commit an act of sodomy. She further contends that while both parties were still completely in the nude she tricked the defendant into leaving the immediate area on foot to search for her lost cigarettes and thus was able to get into defendant’s car, lock the doors and make her escape. Defendant, observing what was taking place, leaped aboard the hood of his automobile and was thus transported, still sans clothing, out of the field, down the country road and into the front yard of the nearest farm house. Miss Dikeman then placed the car in reverse and defendant slid off the hood into the farmyard. As she was departing the scene, Miss Dikeman advised defendant his car would be at her house.
Defendant readily admits that the sexual acts took place but contends Miss Dikeman was a more than willing participant, that no force or threats were involved, that after two or three hours of mutually enjoyable lovemaking she suddenly “went crazy,” took his car and drove off. As a result of defendant’s admission that the sexual acts took place the sole issue before the court was one of consent. The testimony of police officers, a medical examiner, Miss Dikeman’s regular doctor and others could be construed as supporting either participant’s story. Testimony of one witness, admitted under K.S.A. 60-455 to show plan and intent, was definitely supportive of Miss Dikeman’s version of the facts.
The trial judge recognized the principal issue when making a statement to counsel in chambers before announcing his decision in open court:
“. . . Now, the whole question is whether or not there was consent involved or whether it was force.
“. . . I tried to evaluate the testimony of each of the two principal parties against other evidence to see which one I thought was telling the truth, and I concluded that the victim was telling the truth. . . .”
It is readily apparent that the question of which party was telling the truth was a major, if not the determining, factor in the court’s decision.
Several times during direct examination of Miss Dikeman the prosecutor brought out the use of marijuana by both parties. On cross-examination Miss Dikeman volunteered information about the use of “downers” and other drugs and was then questioned about such use. Later in cross-examination the following took place:
“Q. Okay. Now, Miss Dikeman, you testified earlier in your cross-examination that you had at times utilized drugs, primarily marijuana, what you referred to as downers; is that correct?
“A. Yes.
“Q. Did you ever engage in the sale of items like this?
“A. No.
“Q. You never engaged or offered for sale any narcotic drugs of any type?
“A. No, I never did.
“Q. Are you acquainted with a person by the name of Kenny Sick?
Mr. Robinson: Objection, Your Honor, no showing of relevance of who Kenny Sick is.
Mr. Earnest: It will be tied in later, Your Honor.
The Court: Go ahead.
“Q. [By Mr. Earnest] Are you acquainted with Kenny Sick?
“A. No.
“Q. You don’t know him?
“A. I have never heard of him.”
During the presentation of the defendant’s case, Kenneth K. Sick was called as a witness. Sick testified that he was acquainted with Karen Dikeman, that he had seen her on at least three occasions around September, 1975, and on one of those occasions had a date with her and took her, along with another friend, to an all-night movie. Then the following dialogue took place:
“Q. . . . Okay. Did you have occasion to see Karen Dikeman again?
“A. Yes, I saw her — well, I saw her in September when she — in an apartment of a friend’s house. She came there. I was present, and she showed up and came in.
“Q. What—
“A. As she was — at that time she was—
Mr. SKINNER: Your Honor, I’m going to object right now as not being responsive to the question. He asked if he saw her again.
The Court: Okay.
Mr. Neuschwander: All right. He has answered that.
“Q. [By Mr. Neuschwander] Where did you see her on your second meeting?
“A. I saw her in the apartment near my home at a friend’s house.
“Q. Okay. Did you see Karen Dikeman do anything on this occasion?
“A. Uh-huh. She^ — •
Mr. Skinner: Your Honor, I am going to object at this point in time. I would like to be heard. I have a case from the Kansas Supreme Court that I would like the Court to read.
The Court: The Court is familiar with the law. In order to attack character you have got to show they did something dishonest or something like that, either conviction of a felony, dishonest felony or something dishonest. This isn’t that. It may be disreputable and abominable. It’s not dishonest.
Mr. Neuschwander: The sale of drugs is not dishonest?
The Court: Not dishonest.
Mr. Neuschwander: Well, Your Honor, I believe—
The Court: It’s regrettable and people shouldn’t do it, and it’s against the law, but it’s not one of those exceptions that’s in the statute on attacking character and credibility.
Mr. NEUSCHWANDER: Well, Miss Dikeman did testify when she was cross-examined she had never engaged in the sale of narcotics.”
Defendant raises several points on appeal, two of which will be considered at some length.
Defendant contends the court committed reversible error in preventing him from introducing evidence on the only issue before the court and his theory of the case. He argues that consent was the only issue to be determined by the court and therefore the truthfulness of the alleged victim in giving her testimony in this case was of major importance. He contends he should have been allowed to examine Sick on issues, collateral in nature, which would show that Miss Dikeman had not been truthful in her testimony.
K.S.A. 60-420 provides:
“Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
K.S.A. 60-422 provides in part:
“As affecting the credibility of a witness ...(c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
K.S.A. 60-421 deals specifically with the admission in evidence of prior convictions and as such is not directly involved in this case.
In State v. Belote, 213 Kan. 291, 516 P.2d 159 (1973), we held:
Syl. ¶2. “Drug offenses per se do not involve dishonesty or false statement in their commission; hence K.S.A. 60-421 renders convictions for such offenses inadmissible for the purposes of impairing the credibility of a witness.”
Syl. ¶3. “Evidence of traits of a witness’ character other than honesty or veracity or their opposites, as well as evidence of specific instances of the witness’ conduct relevant only to prove such traits of character, are inadmissible as affecting credibility.”
Syl. ff4. “For the purpose of discrediting a witness, evidence is not admissible to show that he is a user of drugs, or to show the effect of the use of such drugs, unless it is shown that the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.”
In Belote, supra, at page 295, in commenting on K.S.A. 60-422(c) and (d), we stated:
“The latter statute makes distinction between traits of character and specific instances of conduct, a distinction not always easy to apply with respect to the use of drugs. Nonetheless the import is clear — evidence of traits of a witness’ character other than honesty or veracity or their opposites, as well as evidence of specific instances of the witness’ conduct relevant only to prove such traits of character, are inadmissible as affecting credibility.
“The questions put to the witness here to which objections were sustained clearly were probing either for testimony that she was an addict (which she denied in an answer elicited over the state’s objection) or that she had taken drugs. Treating drug addiction as a trait of character as we think it must be, it is not one either of honesty or veracity or their opposites and hence evidence of the same is inadmissible. Likewise, evidence of specific instances of improper drug use relevant only to prove such trait is also inadmissible. A majority of the courts in other jurisdictions which have wrestled with the same problem have, in the absence of statute, come to the same conclusion. . . .”
Defendant argues he is not attempting to show traits of Karen Dikeman’s general character or specific instances of conduct to prove a trait of character, but sought to introduce the testimony of Sick to show she was not being truthful in this case rather than to challenge her usual reputation for veracity.
Dewey v. Funk, 211 Kan. 54, 505 P.2d 722 (1973) was a paternity action brought in the name of the child by her mother against the alleged father to obtain support. The principal question was the ruling of the trial court in refusing to admit testimony as to prior sexual activity of the mother after she had testified she was a virgin at the time of the incident resulting in the conception of the child. At page 56 the court said:
“If one party offers an irrelevant and therefore inadmissible fact which is received in evidence, may the other party offer similar facts whose only claim to admission is that they negate or explain or counterbalance the prior inadmissible fact? Wigmore on Evidence, 3d Edition, § 15, pp. 304, 305, 307, suggests there are three rules competing for recognition:
‘(1) The first is that the admission of an inadmissible fact, without objection by the opponent, does not justify the opponent in rebutting by other inadmissible facts;
‘(2) At the other extreme is a rule which declares that, in general, precisely the contrary shall obtain, i.e., the opponent may resort to similar inadmissible evidence;
‘(3) A third form of rule, intermediate between the other two, is that the opponent may reply with similar evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence, but in no other case. . . .’
We prefer the adoption of Rule 3. It provides the flexibility necessary to assure the issues will not be tried on uncontradicted, prejudicial testimony of an unimpeached witness, but avoids trial of nonprejudicial collateral matters.”
In Belote objections were lodged at the outset against questions seeking to inquire into collateral issues and we held the trial court was correct in sustaining such objections. On the other hand, in Dewey, the collateral or irrelevant testimony was allowed without objection and we held it was error not to allow the defendant to show that such testimony was false. While it is true in the case at bar that it was the defendant who first elicited the objectionable testimony from the complaining witness, once it had been allowed, without objection, defendant should have been able to show that it was false.
State v. Blue, 221 Kan. 185, 558 P.2d 136 (1976) was an appeal from a conviction for forgery wherein defendant Blue (a/k/a Jackson) had presented a forged drug prescription to a pharmacy in Wichita. This occurred during the afternoon of July 7, 1975. During the presentation of the defendant’s case, both he and a companion, Goodbear, testified that they had been at home all morning on July 7, 1975. The state offered evidence in rebuttal that the two of them had, in fact, visited another pharmacy during the morning hours and had obtained a quantity of drugs with a valid prescription. The trial court ruled the evidence, though collateral in nature and ordinarily not admissible, was admissible as rebuttal evidence going to credibility. We stated at page 188:
“The rebuttal evidence was competent to show that the testimony of Goodbear and Jackson that they did not visit any other pharmacy that day was false; it was thus admissible to attack their credibility under K.S.A. 60-420.”
“It is a familiar rule of this court that the scope and extent of cross-examination of a witness on collateral matters for the purpose of impeaching his credibility rests largely in the trial court’s discretion. There must be some showing of abuse or of prejudice to the appealing party before a reversal is justified.” State v. Nix, 215 Kan. 880, 884, 529 P.2d 147 (1974). See also, State v. Ralls, 213 Kan. 249, 515 P.2d 1205 (1973) and State v. Burnett, 221 Kan. 40, 558 P.2d 1087 (1976).
We fully adhere to the rule of Nix; however, under the peculiar facts and circumstances in this case, we find that it was error to preclude the defendant from presenting evidence in an attempt to prove that the prosecuting witness had been untruthful in her testimony.
Defendant’s second principal point is that he was deprived of his right to a fair trial when certain matters took place in chambers without his knowledge. At the close of all the evidence and arguments the judge announced that he would take the case under advisement, review his notes and the exhibits, study the cases submitted by the parties and announce his decision the next morning at 10:00 a.m.
The next morning counsel met with the court in chambers and the judge advised counsel on the record of his view of the evidence and then the following transpired:
“The COURT: Let the record reflect that I have all counsel in Chambers. Last night before I left, all of you had given me some cases to read, and I read all of these cases and went over the facts last night, and I pretty well got the facts figured out in my mind how I think they should be last night. Does anybody want to have any other law or cases you want to give me before I go into the ruling this morning?
“Mr. Skinner: We don’t have any.
“Mr. Earnest: I don’t believe we do, Your Honor.
“The Court: . . .
“Now, I made my mind up last night on this case on the facts and went over it, examined it, tried to figure out in my head what happened, and actually it develops down into a question of who are you going to believe. This isn’t the ruling. I am going to give the ruling in open Court, but there are some things I want to say before I go into open Court.
“I was real disgusted with both of them [for] smoking pot, drinking, that type of thing. I question whether either one of them was fully in charge of their faculties that night. It’s unfortunate that young people have to get in a mess like this. So, to make a long story short, I have concluded that there was no kidnapping, that the elements don’t indicate that to me; that there was forcible rape and that there was sodomy. But since the sodomy and the rape all occurred in the same sort of situation, there will be concurrent sentences, same time.
“Now, one other thing. Like I told you, I made my mind up last night before I went home. This morning coming up on the elevator, I heard someone say that the defendant failed to pass a lie detector test. I don’t know whether that’s true or whether it’s not true. It played no part in my decision, but I wanted counsel to know before I rule. If defense counsel thinks that has prejudiced this Court, I’ll declare a mistrial. Do you want a little time to think about it?
“Mr. Earnest: No, Your Honor. I’m quite sure it played no part in your decision.
“The Court: Pardon?
“Mr. Earnest.- I’m quite sure it played no part in your decision, and I would see no reason for the Court not to go right ahead.”
Court was then convened and the trial court in the presence of the defendant again reviewed the evidence as he saw it and rendered his decision.
It was several months after this appeal had been perfected before defendant learned of the discussion which took place in chambers and due to the serious nature of the question raised we allowed defendant to obtain new counsel and file a supplemental statement of points on appeal, record and brief. The state has declined the opportunity to answer the supplemental brief and we do not have the benefit of the state’s position on this issue.
While we are convinced that the inadmissible evidence, consisting of the statements overheard in the elevator, played no part in Judge Riddel’s decision, we are of the opinion defendant should have been advised and given the opportunity to consult with his counsel. The trial judge, when he made a record of the informal proceedings, offered to declare a mistrial and to give defense counsel time to think about it, obviously considered the matter to be a serious one affecting defendant’s fundamental rights. We agree.
The functions of defense counsel in a criminal case have been reviewed several times by this court.
“In the conduct of the defense of a criminal case the technical and professional decisions, which require trained professional skill and judgment, must rest with the lawyer. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Emphasis added) Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). See also, State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977), and ABA Standards for Criminal Justice, Defense Function, §5.2.
We do not mean to imply that counsel’s decision in this case indicates a lack of competence. It could very well be that as a matter of trial strategy, counsel determined it would be in his client’s best interests not to accept a mistrial. Counsel had been informed that the court did not feel the evidence warranted a conviction of aggravated kidnapping, a Class A felony. If defendant accepted a mistrial he would have been faced with a retrial on all the issues and a possible later conviction of the more serious offense. However, under the facts and circumstances of this case, before waiving defendant’s right to a mistrial volunteered by the trial court, defendant should have been consulted by counsel and given an opportunity to consider the alternatives.
Considering all foregoing factors, we find prejudicial error and hold that the case must be reversed and remanded for a new trial. Defendant raises several other points on appeal but in view of the conclusions reached, it is not necessary to consider them further.
The judgment is reversed and the case remanded for a new trial.
Prager, J., concurring in the result.
McFarland, J., dissenting. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendant was found guilty of aggravated robbery (K.S.A. 21-3427) and aggravated burglary (K.S.A. 21-3716) after a jury trial.
On May 27, 1976, a Kansas City, Kansas, residence was burglarized and its occupants robbed at gunpoint. Money and several items, including two television sets, were taken. One month later defendant was arrested and taken to the police station for questioning. After several hours he gave a statement to police which was tape recorded and transcribed. Defendant signed the transcription.
At trial the confession was introduced over objection. Since the victim couldn’t identify defendant as his assailant the confession was the state’s key evidence.
As his first point on appeal defendant argues the transcribed confession was inadmissible because of the best evidence rule (K.S.A. 60-467). It is argued that only the tape recording of defendant’s confession could be introduced. The argument is without1 merit.
Under the circumstances of this case the typed confession, while taken from the tape recording, was not secondary evidence of the tape recorded confession. Defendant read and signed each page of the six-page confession, pointed out a mistake on one page, and corrected the error by supplying the correct information. Once this was done the typewritten confession became independent evidence and was no longer merely a transcription of the tape. K.S.A. 60-467 did not apply. (People v. Davis, 210 Cal. App. 2d 721, 738-39, 26 Cal. Rptr. 903 [1962]; State v. Melerine, 236 La. 881, 109 So. 2d 454 [1959].)
Even if defendant had not signed the confession and the best evidence rule applied to tape recordings, the transcript would be admissible. (See, K.S.A. 60-401 [m]; United States v. Gonzales-Benitez, 537 F.2d 1051, 1053 [9th Cir. 1976]; United States v. McMillan, 508 F.2d 101, 105 [8th Cir. 1974], cert. denied 421 U.S. 916, 43 L.Ed.2d 782, 95 S.Ct. 1577; Vernon s K.S.A. Code of Civ. Proc., Sec. 60-467, p. 636.) The evidence shows that after defendant read the confession and signed it the original tape was erased. Under K.S.A. 60-467(a)(1) secondary evidence may be introduced if the original has been lost or destroyed without fraudulent intent. (See, In re Estate of Marcotte, 170 Kan. 189, 224 P.2d 998; Knauer v. Morrow, 23 Kan. 360. See also, United States v. Gerhart, 538 F.2d 807, 809 [8th Cir. 1976]; United States v. Conway, 507 F.2d 1047, 1052 [5th Cir. 1975]; United States v. Byrne, 422 F. Supp. 147, 164 [E.D. Pa. 1976]; United States v. Maxwell, 383 F.2d 437, 442 [2d Cir. 1967]; McGuire v. State, 200 Md. 601, 606, 92 A.2d 582 [1952].) On several occasions federal courts have considered the effect of tapes erased by law enforcement officials. In United States v. Mirro, 435 F.2d 839, 841 (7th Cir. 1970), the court said:
“Neither does the fact that the original tapes were destroyed render the available evidence on the transcribed logs inadequate. It is the general practice of the F.B.I. to use logs rather than tapes in its investigations. The tapes are usually erased or destroyed after their transcription into logs. There was no evidence at the hearing that this method of transcription lacked authenticity.”
(See also, United States v. Balistrieri, 436 F.2d 1212, 1214 [7th Cir. 1971]; United States v. Balistrieri, 403 F.2d 472, 476 [7th Cir. 1968].)
The last sentence in Mirro reveals another critical flaw in defendant’s argument — at no time has he suggested that the contents of the typewritten confession are less than the truth. Absent some indication of a discrepancy, secondary evidence should be admitted. (City of Dunlap v. Waters, 99 Kan. 257, 260, 161 Pac. 641; People v. Finch, 216 Cal. App. 2d 444, 453, 30 Cal. Rptr. 901 [1963]; People v. Albert, 182 Cal. App. 2d 729, 742, 6 Cal. Rptr. 473 [I960]; United States v. McMillan, supra; United States v. Hawke, 505 F.2d 817, 823 [10th Cir. 1974], cert. denied 420 U.S. 978, 43 L.Ed.2d 658, 95 S.Ct. 1404; United States v. Mirro, supra; Fountain v. United States, 384 F.2d 624, 631 [5th Cir. 1967]; United States v. Worley, 368 F.2d 625, 626 [4th Cir. 1966]; Johns v. United States, 323 F.2d 421 [5th Cir. 1963]; United States v. Riccobene, 320 F. Supp. 196, 203 [E.D. Pa. 1970].)
It must be remembered that the best evidence rule is not an inflexible exclusionary rule, but a preferential rule. (State v. Joseph Little, 201 Kan. 101, 104, 439 P.2d 383.) It was said in United States v. Manton, 107 F.2d 834, 845 [2d Cir. 1939], long before the advent of our present evidentiary code:
“. . . [T]he best evidence rule should not be pushed beyond the reason upon which it rests. It should be ‘so applied’, as the Supreme Court held in an early case, ‘as to promote the ends of justice, and guard against fraud or imposition.’ Renner v. Bank of Columbia, 9 Wheat. 581, 597, 6 L.Ed. 166. See also United States v. Reyburn, 6 Pet. 352, 366, 8 L.Ed. 424; Minor v. Tillotson, 7 Pet. 99, 100, 8 L.Ed. 621. The rule is not based upon the view that the so-called secondary evidence is not competent, since, if the best evidence is shown to be unobtainable, secondary evidence at once becomes admissible. And if it appear, as it does here, that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof, and that fraud or imposition, reasonably, is not to be feared, the reason upon which the best evidence rule rests ceases, with the consequence that in that situation the rule itself must cease to be applicable, in consonance with the well established maxim — cessante ratione legis, cessat ipsa lex.
“An over-technical and strained application of the best evidence rule serves only to hamper the inquiry without at all advancing the cause of truth. ‘The fundamental basis,’ the Supreme Court has said, ‘upon which all rules of evidence must rest — if they are to rest upon reason — is their adaptation to the successful development of the truth.’ Funk v. United States, 290 U.S. 371, 372, 381, 54 S.Ct. 212, 215, 78 L.Ed. 369. . . .”
Defendant’s second point relates to an inadvertent statement made by a witness at trial. A uniformed police officer testified that he found defendant while he was looking for a car connected with an armed robbery or a possible homicide. It is the mention of the word “homicide” which upsets defendant. After the witness completed his testimony, defense counsel moved for a mistrial.
This court has had previous occasion to discuss unsolicited and unresponsive answers to proper questions. (See, State v. Mitchell, 220 Kan. 700, 556 P.2d 874; State v. Robinson, 219 Kan. 218, 547 P.2d 335; State v. Bradford, 219 Kan. 336, 548 P.2d 812; State v. Childs, 198 Kan. 4, 422 P.2d 898.) These cases recognize it is impossible for a trial court to exclude in advance an improper response to a question and, therefore, focus on the degree of prejudice which resulted. Under the circumstances we agree with the trial court that the remark was harmless and it was not an abuse of discretion to refuse to grant a mistrial. (K.S.A. 22-3423; State v. Rueckert, 221 Kan. 727, 735, 561 P.2d 850.)
Finally, defendant contends he should have been discharged at the conclusion of the state’s evidence. The long-standing applicable test for a motion for acquittal is set out in State v. Gustin, 212 Kan. 475, 510 P.2d 1290, wherein we held:
“A trial judge in passing upon 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, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” (Syl. 3.)
The state’s evidence showed a man was robbed in his home by two people armed with deadly weapons, property including a shotgun and shoulder holster was taken, and a witness testified defendant and another man brought items including a shotgun and a shoulder holster to his house. This property was recovered and identified at trial by the victim as property taken in the robbery. Finally, the state introduced defendant’s statement admitting his participation in the crime. From this evidence a jury could reasonably infer defendant committed the aggravated burglary for which he was charged and could conclude he was guilty beyond a reasonable doubt.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an action wherein Dr. Byron Timothy Liggett was enjoined from practicing medicine until he obtained medical malpractice insurance as required by K.S.A. 1976 Supp. 40-3401, et seq. (now K.S.A. 1977 Supp. 40-3401, et seq.). The doctor challenges the constitutionality of the act on the grounds it denies him (1) substantive due process of the law, and (2) equal protection of the law. For the reasons set forth herein we find the act constitutional.
The Kansas Health Care Provider Insurance Availability Act was passed by the 1976 legislature as a partial response to increasing pressure brought upon Kansas health care providers because of the national medical malpractice crisis. The primary feature of the act is the requirement that all health care providers operating within the state must obtain professional malpractice liability insurance (40-3402) and pay a surcharge to the health care stabilization fund (40-3404). The law requires the provider to carry a basic policy of $100,000 per occurrence and an annual aggregate of $300,000 for all claims made during the period. The stabilization fund provides for the payment of claims in excess of policy limits. Included in the act is a provision requiring every health care insurer to participate in an apportionment plan whereby any health care provider may obtain liability insurance from the plan if insurance from a conventional source (40-3413) is not available.
The problem of obtaining and maintaining affordable malpractice insurance came before the legislature in 1971, 1973 and 1975. As a result, the legislature enacted a law in 1975 requiring all health care insurers to report their claims experience to the commissioner of insurance (K.S.A. 1975 Supp. 40-1126, et seq.). In 1976, however, the problem had grown to such proportions it received full legislative attention. A legislative interim committee was told in detail how insurance costs had skyrocketed on present policies, policies were unavailable for new doctors, insurers were beginning to withdraw from the medical malpractice field, and the availability of medical service in some Kansas communities was threatened. In response, the committee proposed twelve bills, including the act in the present controversy.
The original bill did not require mandatory insurance coverage, nor did it require payment of the surcharge. These provisions were added by the legislature at the behest of Insurance Commissioner Fletcher Bell. The mandatory coverage provision, it was alleged, would provide for the financial stability of the insurance availability program and would assure all Kansans they would have a source of recovery for damages resulting from malpractice.
During the hearings on the bill Kansas dentists and nurses asked to be exempted from the proposed legislation. Both groups testified they were not experiencing the problems of malpractice associated with other health care providers and they could obtain adequate amounts of low cost insurance from their national associations. It was stated that many nurses worked on a part-time basis and the proposed mandatory insurance requirement, if applied to them, would economically force them out of practice.
Pharmacists, originally exempted from the act, asked to be included because they were beginning to experience malpractice and insurance availability problems similar to doctors and hospitals. The legislature made the insurance coverage mandatory and included pharmacists but exempted dentists and nurses.
The main thrust of Dr. Liggett’s attack on the act is that it requires him to obtain liability insurance before he may engage in the practice of medicine. He argues he was already qualified and licensed to practice medicine prior to the time the law went into effect; therefore, he has a vested right to practice medicine and the state cannot now impose any additional requirements which might take away that right. He further argues that any requirement affecting the right to practice a profession must be directly related to a person’s ability to practice that profession before the condition is constitutionally valid. He also claims, and the state candidly admits, that the presence or absence of insurance does not affect his competence as a physician; it affects only the ability to satisfy a judgment if he should successfully be sued for negligence or malpractice.
In all fairness to Dr. Liggett it should be noted that no one has alleged he is incompetent or unfit to practice medicine, and to our knowledge he has not been sued for malpractice, nor have any complaints been lodged against him. He simply refuses to purchase the required insurance or to pay the surcharge.
We live in a dynamic society and the law must change responsively to the needs of the people. No person has a vested right in any rule of law entitling him to insist it shall remain unchanged for his benefit. (New York Central R.R. Co. v. White, 243 U.S. 188, 61 L.Ed. 667, 37 S.Ct. 247.) Events transpiring after the passage of a law may require changes and place a citizen in a position different from that which he occupied prior to the change. (Pin- nick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 [1971], 42 A.L.R.3d 194.) The Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Bill of Rights do not constitutionally prohibit changes in the. law which affect a person’s rights as they existed at common law. In Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578, we said:
“. . . [T]he great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled. . . .” (pp. 331-32.)
In Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291, considering the mandatory no-fault insurance law for Kansas motorists, this court stated:
“While Section 18 of the Bill of Rights provides a broad field for the protection of persons, property and reputation, the vested rights contained therein are subject to change by legislative power, where the change is reasonably necessary in the public interest to promote the general welfare of the people of the state. We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy for common law causes of action. . . .” (p. 599.)
Defendant’s constitutional rights are not violated merely because the statutes require him to do something which was not required of him when he first obtained his license to practice medicine.
We turn to the due process and equal protection arguments raised by defendant. In order to properly resolve these issues it is necessary to understand the distinction between these two constitutional concepts. In Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437, the court explained:
. . .‘Due process’ emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. ‘Equal protection,’ on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. . . .” (p. 609.)
The standard of review in a due process case has fluctuated in response to society’s changing attitudes concerning the proper role of the judiciary in the examination of social and economic regulations imposed pursuant to the state’s police power. In the past courts often struck down laws with which they disagreed on the basis that due process was violated. (See, e.g., Tyson & Brother v. Banton, 273 U.S. 418, 71 L.Ed. 718, 47 S.Ct. 426; Adkins v. Children’s Hospital, 261 U.S. 525, 67 L.Ed. 785, 43 S.Ct. 394; Coppage v. Kansas, 236 U.S. 1, 59 L.Ed. 441, 35 S.Ct. 240; Adair v. United States, 208 U.S. 161, 52 L.Ed. 436, 28 S.Ct. 277; Lochner v. New York, 198 U.S. 45, 49 L.Ed. 937, 25 S.Ct. 539.) This practice fell into disrepute, however, beginning with the case of Nebbia v. New York, 291 U.S. 502, 78 L.Ed. 940, 54 S.Ct. 505. There the court retreated from its previous attitude and declared the test for due process to be whether the legislative means selected had a real and substantial relation to the objective sought. The rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. (West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L.Ed. 703, 57 S.Ct. 578, 108 A.L.R. 1330.) Courts can no longer sit as a “super legislature” and throw out laws they feel may be unwise, improvident or inappropriate. (Ferguson v. Skrupa, 372 U.S. 726, 10 L.Ed.2d 93, 83 S.Ct. 1028, 95 A.L.R.2d 1347; Williamson v. Lee Optical Co., 348 U.S. 483, 99 L.Ed. 563, 75 S.Ct. 461.) That view remains valid today. (See, North Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U.S. 156, 38 L.Ed.2d 379, 94 S.Ct. 407; Dean v. Gadsden Times Publishing Corp., 412 U.S. 543, 37 L.Ed.2d 137, 93 S.Ct. 2264; Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678.)
Defendant argues the “reasonable relation” test limits the restrictions on his right to practice medicine to those directly related to his fitness to practice medicine. In support of his position he cites Konigsberg v. State Bar, 366 U.S. 36, 6 L.Ed.2d 105, 81 S.Ct. 997, reh. denied 368 U.S. 869, 7 L.Ed.2d 69, 82 S.Ct. 21; Konigsberg v. State Bar, 353 U.S. 252, 1 L.Ed.2d 810, 77 S.Ct. 722, reh. denied 354 U.S. 927, 1 L.Ed.2d 1441, 77 S.Ct. 1374; Schware v. Board of Bar Examiners, 353 U.S. 232, 1 L.Ed.2d 796, 77 S.Ct. 752, 64 A.L.R.2d 288; Douglas v. Noble, 261 U.S. 165, 67 L.Ed. 590, 43 S.Ct. 303; and Dent v. West Virginia, 129 U.S. 114, 32 L.Ed. 623, 9 S.Ct. 231. Those decisions all involved constitutional challenges to restrictions imposed by states upon a person’s ability to obtain a professional license. While they appear to limit requirements for obtaining a license to professional fitness we do not read the cases as placing only professional fitness as the basis of the right of a state to regulate professions. Down through the years federal courts have recognized that states possess an inher ent power to regulate certain businesses and professions for the good of society. This “police power,” as the term has become known, gives states the right to act to protect and promote public health, safety, morals, peace, quiet, and law and order. (Berman v. Parker, 348 U.S. 26, 99 L.Ed. 27, 75 S.Ct. 98.) The foregoing discussion illustrates the scope of the power, but does not set its limits. (See, Noble State Bank v. Haskell, 219 U.S. 104, 111, 55 L.Ed. 112, 116, 31 S.Ct. 186.)
In Manzanares v. Bell, supra, this court recognized that the police power includes not only the right to prevent accident and injury to members of the public but the right to provide for them a method of compensation for bodily injury arising out of an accident. In support of its position the court cited Pinnick v. Cleary, supra. Upholding the Massachusetts no-fault insurance law, that court stated:
“. . . Any doubts as to the power of the Legislature to require the citizen, for the good of the public as a whole, to take measures for his own benefit have long since been settled in a series of cases sustaining such statutes. The fact that in many of these cases this feature of the act was not even attacked indicates the lack of gravity of the objection. . . .” (p. 24.)
The power to require physicians and other health care providers to obtain licenses before practicing medicine is undisputed. (See, Kansas State Board of Healing Arts v. Seasholtz, 210 Kan. 694, 504 P.2d 576; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828, 28 A.L.R.3d 472; State, ex rel., v. Gleason, 148 Kan. 1, 79 P.2d 911; State, ex rel., v. Cooper, 147 Kan. 710, 78 P.2d 884; Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, aff’d 195 U.S. 625, 49 L.Ed. 350, 25 S.Ct. 790; State v. Wilcox, 64 Kan. 789, 68 Pac. 634; State v. Creditor, 44 Kan. 565, 24 Pac. 346.) Requiring liability insurance in order to obtain or keep such a license is not unlike requirements imposed upon abstracters (K.S.A. 1977 Supp. 58-2802), pesticide businesses (K.S.A. 1977 Supp. 2-2448), county ambulance services (K.S.A. 19-261), securities dealers (K.S.A. 17-1254), warehousemen (K.S.A. 34-229 and 34-236), livestock markets (K.S.A. 47-1002), or public carriers (K.S.A. 1977 Supp. 66-1,128 and 66-1314). The attacks made upon the mandatory insurance requirement for public carriers have withstood the same attack now made by defendant. (See, Flowers v. Fidelity & Casualty Co., 156 F.2d 586 [10th Cir. 1946]; Continental Baking Co. v. Woodring, 55 F.2d 347 [D. Kan. 1931], aff’d 286 U.S. 352, 76 L.Ed. 1155, 52 S.Ct. 595; Louis v. Boynton, 53 F.2d 471 [D. Kan. 1931].)
In balancing relevant and conflicting factors, as we are required to do (Bartkus v. Illinois, 359 U.S. 121, 128, 3 L.Ed.2d 684, 689, 79 S.Ct. 676, reh. denied 360 U.S. 907, 3 L.Ed.2d 1258, 79 S.Ct. 1283), we hold that the mandatory provisions of K.S.A. 1977 Supp. 40-3401, et seq., do not violate the due process clause. Mandatory malpractice insurance bears a rational relationship to the health and welfare of the citizens of this state by not only providing protection to patients who may be injured as a result of medical malpractice, but by assuring that there continues to exist in the state an adequate supply of health care providers. (See, Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 [1976], cert. denied 431 U.S. 914, 53 L.Ed.2d 223, 97 S.Ct. 2173; Cf., Pollock v. Methodist Hospital, 392 F. Supp. 393 [E.D. La. 1975].)
Our next concern is whether the statute offends the equal protection clause. When considering this question we must first determine the proper test. Traditionally, the yardstick for measuring equal protection arguments has been the “reasonable basis” test. The standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 81 S.Ct. 1101:
“ . . . The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .”
In Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914, 26 L.Ed.2d 80, 90 S.Ct. 1684, it was stated:
. . If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78. . . .” (p. 485.)
A statute comes before the court cloaked in a presumption of constitutionality and it is the duty of the one attacking the statute to sustain the burden of proof. (Henry v. Bauder, 213 Kan. 751, 753, 518 P.2d 362; Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 55 L.Ed. 369, 31 S.Ct. 337.)
A more stringent test has emerged, however, in cases involving “suspect classifications” or “fundamental interests.” Here the courts peel away the protective presumption of constitutionality and adopt an attitude of active and critical analysis, subjecting the classification to strict scrutiny. The burden of proof to justify the classification falls upon the state. (See, Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed.2d 600, 89 S.Ct. 1322.) This test has been used to strike down classifications based on race (Loving v. Virginia, 388 U.S. 1, 18 L.Ed.2d 1010, 87 S.Ct. 1817); sex (Reed v. Reed, 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251); ethnic background (Katzenbach v. Morgan, 384 U.S. 641, 16 L.Ed.2d 828, 86 S.Ct. 1717); residency (Shapiro v. Thompson, supra); alienage (Sugarman v. Dougall, 413 U.S. 634, 37 L.Ed.2d 853, 93 S.Ct. 2842; Graham v. Richardson, 403 U.S. 365, 29 L.Ed.2d 534, 91 S.Ct. 1848); and infringements of fundamental rights, such as the right to travel freely (Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274, 92 S.Ct. 995; Aptheker v. Secretary of State, 378 U.S. 500, 12 L.Ed.2d 992, 84 S.Ct. 1659) or to practice one’s religion (Sherbert v. Verner, 374 U.S. 398, 10 L.Ed.2d 965, 83 S.Ct. 1790).
The “compelling state interest” or “strict scrutiny” test requires the court to consider the nature of the rights affected by the legislation, the classification established, and the governmental interest necessitating the classification. (Manzanares v. Bell, supra at 600; Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L.Ed.2d 306, 94 S.Ct. 1076; Kramer v. Union School District, 395 U.S. 621, 23 L.Ed.2d 583, 89 S.Ct. 1886.) In San Antonio School District v. Rodriguez, 411 U.S. 1, 36 L.Ed.2d 16, 93 S.Ct. 1278, reh. denied 411 U.S. 959, 36 L.Ed.2d 418, 93 S.Ct. 1919, it was held that a right to an education did not become a fundamental interest treated under the compelling state interest test merely because of the societal significance of education. Instead the court held that the determination of a fundamental interest focuses upon whether the right asserted is explicitly or implicitly guaranteed by the Constitution. That method of analysis must be applied here.
Traditionally, the “rational relationship” test is applied in cases involving occupational licensing, including those concerning the medical profession. (See, Williamson v. Lee Optical Co., supra.) The cases recognize there is no “fundamental interest” involved in the practice of medicine (Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 [5th Cir. 1975]; D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1, 112 Cal. Rptr. 786, 520 P.2d 10 [1974]; Jones v. State Board of Medicine, supra); or in any other profession (Naismith Dental Corp. v. Board of Dental Examiners, 68 Cal. App. 3d 253, 137 Cal. Rptr. 133 [1977] [dentistry]; Hawkins v. Moss, 503 F.2d 1171 [4th Cir. 1974] [law]; Lombardi v. Tauro, 470 F.2d 798 [1st Cir. 1972] [law]; Ostroff v. New Jersey Supreme Court, 415 F. Supp. 326 [D. N.J. 1976] [law]; Watson v. Cronin, 384 F. Supp. 652 [D. Colo. 1974] [news reporting].) The case of In re Griffiths, 413 U.S. 717, 37 L.Ed.2d 910, 93 S.Ct. 2851, cited by defendant, is inapposite because it involved the suspect classification of alienage for its turning point.
The practice of medicine is not a fundamental interest under the Constitution; therefore, defendant’s equal protection argument must be gauged by the traditional “rational relationship” test. This does not mean we denigrate the importance of defendant’s profession or any other recognized profession or business; we simply cannot perceive any implicit or explicit guarantee in the state or federal Constitutions for the right to practice medicine. (See, Lindsey v. Normet, 405 U.S. 56, 74, 31 L.Ed.2d 36, 50, 92 S.Ct. 862.)
Defendant first challenges the statutes because high risk physicians (surgeons, anesthesiologists, etc.) are treated the same as low risk practitioners (family doctors, general practitioners, etc.). He also challenges the statutes because they do not apply to dentists, nurses, lawyers and other professionals.
In Henry v. Bauder, supra at 753, we stated:
“ . . . A classification employed in the exercise of police power cannot be made arbitrarily. Any distinctions inherent in a particular classification must furnish a proper and reasonable basis for such a classification. The concept of equality of all citizens under the law is, of course, basic to our free society. We have stated that classifications may not be created arbitrarily, discriminatorily or unreasonably, or the principle of equality would be violated. There must be some difference in character, condition, or situation, to justify distinction, and this difference must bear a just and proper relation to the proposed classification and regulation; otherwise, the classification is forced and unreal, and greater burdens are, in fact, imposed on some than on others of the same desert. (The State v. Heitman, 105 Kan. 139, 181 Pac. 630.)”
(See also, Manzanares v. Bell, supra; Reed v. Reed, supra; Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L.Ed. 989, 991, 40 S.Ct. 560, 562.)
Establishment of classifications with mathematic precision is not required. In a dissenting opinion in Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 72 L.Ed. 770, 48 S.Ct. 423, Mr. Justice Holmes stated:
. . . [W]hen it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.”
By the same token a statute is not infirm because it does not go as far as it might have gone. (Schilb v. Kuebel, 404 U.S. 357, 364, 30 L.Ed.2d 502, 511, 92 S.Ct. 479, reh. denied 405 U.S. 948, 30 L.Ed.2d 818, 92 S.Ct. 930; Katzenbach v. Morgan, supra at 657; Semler v. Dental Examiners, 294 U.S. 608, 610, 79 L.Ed. 1086, 1089, 55 S.Ct. 570.)
In Manzanares v. Bell, supra, this court stated:
“It should be noted that this court is not made the superintendent of legislative activity under principles of equal protection. (Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678.) Equal protection principles do not restrain the normal exercise of governmental power, but only abuse in the exertion of such authority. The principle of equal protection is not offended against simply because the exercise of the power may result in some inequality. (Louisville & Nashville R.R. v. Melton, 218 U.S. 36, 54 L.Ed. 921, 30 S.Ct. 676.) There is no precise application of the rule of reasonableness in classifying, and equality permits many practical inequalities. There need not be an exact exclusion or inclusion of persons and things. (Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 42 L.Ed. 1037, 18 S.Ct. 594.) The state enjoys a wide range of discretion in distinguishing, selecting, and classifying, and it is sufficient if a classification is practical and not palpably arbitrary. (Orient Insurance Company v. Daggs, 172 U.S. 557, 43 L.Ed. 552, 19 S.Ct. 281; Shelton v. Phalen, 214 Kan. 54, 519 P.2d 754; State v. Weathers, supra; Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877; Martin v. Davis, 187 Kan. 473, 357 P.2d 782, app. dismissed 368 U.S. 25, 7 L.Ed.2d 5, 82 S.Ct. 1; Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P.2d 530.) ‘. . . To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations . . . What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to . . . judicial review. . . .’ (Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69, 70, 57 L.Ed. 730, 734, 33 S.Ct. 441, 443.)
“In the areas of economic and social legislation, a statutory plan does not violate the equal protection clause merely because the classifications contained therein are imperfect. (Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed.2d 797, 94 S.Ct. 1536, 42 L.W. 4475; Jefferson v. Hackney, 406 U.S. 535, 32 L.Ed.2d 285, 92 S.Ct. 1724.) Nor does the equal protection clause require a state to ‘choose between attacking every aspect of a problem or not attacking the problem at all . . .’ (Dandridge v. Williams, 397 U.S. 471, 487, 25 L.Ed.2d 491, 503, 90 S.Ct. 1153, 1162.) . . .” (pp. 612-15.)
We are of the opinion that equal protection is not offended by including high risk and low risk practitioners together. The legislature found the medical health care crisis was affecting all health care providers in this state although the primary impact fell on specialists in high risk areas. Even new doctors practicing in low risk fields were beginning to find it difficult, if not impossible, to obtain coverage. In addition, evidence showed that low risk practitioners needed high risk specialists in order to provide comprehensive care for their patients. Were insurance coverage unavailable for the specialists in high risk fields, the evidence indicates these professionals would either leave the state or would soon quit the practice, causing a general decline in the overall quality of health care available in this state.
The insurance commissioner testified before legislative committees that the insurance pool had to include low risk providers as well as high risk practitioners or the entire program would be actuarially unsound. We therefore find the purposes of the act and the classifications of physicians within the act were related as a means to accomplish those purposes.
Likewise, there was no denial of equal protection because the act applied to some health care providers but not to others. The record indicates that dentists and nurses asked to be excluded from the act because they were not experiencing the same malpractice problems as doctors and insurance was readily available to them through national associations. Distinguishing between one group of medical professionals and another has never been held to violate the equal protection clause if the differing treatment has a fair and substantial relationship to the purpose of the legislation. (Shaw v. Hospital Authority of Cobb County, supra at 628; Gleason v. Carlson, 92 F. Supp. 280, 285 [D. Kan. 1948]; Naismith Dental Corp. v. Board of Dental Examiners, supra at 262; McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 [1962], Cf., Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657, 669 [1977].) The fact nurses and dentists were not affected by the malpractice crisis in the same way as other health care providers is sufficient on its face to demonstrate that they are a different class of persons and can be so treated by the legislature without offending the equal protection clause.
The judgment of the district court is affirmed.
Holmes, J., dissenting. | [
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The opinion of the court was delivered by
Fromme, J.:
The appellant, Barbara Ann Freeman, was convicted by a jury of murder in the second degree in the death of her husband on November 20, 1976. This crime is set out in Article 34, Section 02 of Chapter 21 of the Kansas Statutes Annotated and is commonly known as an Article 34 crime. She fired eight bullets from a handgun into the body of her drunken husband after he had attempted to hit her. She was given a sentence of five years to life, which is the least sentence permissible for such crime under K.S.A. 21-4501(b). Probation was requested but denied by the sentencing judge by reason of K.S.A. 1977 Supp. 21-4618 which denies probation to any defendant who is convicted of an Article 34 crime in which the defendant used a firearm in the commission thereof. The additional facts surrounding this murder have no real significance on appeal. We will treat the points raised by appellant in her brief in reverse order.
Appellant attacks the constitutionality of K.S.A. 1977 Supp. 21-4618 which mandatorily requires that probation be denied. She contends the statute is constitutionally impermissible on three grounds: (1) It constitutes cruel and unusual punishment; (2) it denies her equal protection of the laws; and (3) it deprives her of liberty without due process of law.
K.S.A. 1977 Supp. 21-4618 became effective July 1, 1976, and provides:
“Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act.”
K.S.A. 1977 Supp. 22-3717(8), effective July 1, 1976, provides:
“Notwithstanding any other provision of this section, any person sentenced pursuant to K.S.A. 1976 Supp. 21-4618 shall not be eligible for parole therefrom prior to serving the entire minimum sentence imposed, . . .”
When these concomitant statutes are read in conjunction the legislative effect is to impose mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime. These statutes appear to indicate a legislative retrenchment from the policy declared in K.S.A. 21-4601, effective July 1, 1970, which reads:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
The ABA Standards Relating to Sentencing Alternatives and Procedures, §2.1, state:
“(b) The sentencing court should be provided in all cases with a wide range of alternatives, with gradations of supervisory, supportive and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case.
“(c) The legislature should not specify a mandatory sentence for any sentencing category or for any particular offense.”
However, these standards are merely an expression of the consensus of opinion of a committee of the American Bar Association, approved by its house of delegates, and there is no suggestion in either the standards or the commentary that mandatory sentences are constitutionally impermissible. This court has not addressed the question directly.
The question of what constitutes cruel and unusual punishment as that term is used in state and federal constitutions has been examined in many jurisdictions. In the case of Weems v. United States, 217 U.S. 349, 54 L.Ed. 793, 30 S.Ct. 544, the United States Supreme Court held that said term not only prohibits methods of punishment which are inhuman and barbarous but also terms of sentences which are so out of proportion to the nature of the crime that they shock the general conscience in light of concepts of elemental decency. In Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726, reh. den. 409 U.S. 902, 34 L.Ed.2d 163, 93 S.Ct. 89, the unacceptability of a punishment to society was a factor considered in determining whether the punishment was cruel and unusual. It is apparent after reading Furman that the concept of cruel and unusual punishment is not rigid but acquires meaning from the evolving standards of decency which mark the progress of a maturing society. In Furman it was the method of punishment, the taking of a defendant’s life, that was being considered. The question must be determined on a case by case basis. If inherent cruelty is not involved in the method of punishment the criteria which have been considered in determining what is cruel and unusual punishment because of the length of the sentence include such things as excessiveness, disproportionality, lack of necessity, unacceptability to society, and arbitrariness of infliction. (Anno: Cruel Punishment—Length of Sentence, 33 A.L.R.3d 335.)
We have found no cases where statutes such as those we now consider have been held constitutionally impermissible per se because they require the imposition of a mandatory sentence without right of probation and parole. In the case of Gallego v. United States, 276 F.2d 914 (9th Cir. 1960), the court upheld the sentence imposed for unlawful importation of marijuana. Under the code section involved, 26 U.S.C.A. §7237 (d), the defendant was not eligible for probation or suspension of sentence. The court held the statute did not impose a penalty so out of proportion to the crime as to shock a balanced sense of justice:
“. . . At worst it merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place.” (p. 918.)
See also United States v. Williams, 442 F.2d 738 (D.C. Cir. 1970); and Sperling v. Willingham, 353 F.2d 6 (7th Cir. 1965), cert. den. 384 U.S. 962, 16 L.Ed.2d 675, 86 S.Ct. 1591.
In Stewart v. United States, 325 F.2d 745 (8th Cir. 1964), cert. den. 377 U.S. 937, 12 L.Ed.2d 301, 84 S.Ct. 1344, the court quoted a prior opinion:
. . ‘Appellant’s contention that deprivation of the parole accorded under 18 U.S.C. §4202 and continued confinement under his sentence constitutes cruel and unusual punishment is without merit. Such confinement is usual punishment. The discretionary granting of parole is a matter of legislative grace. The denial of it to certain offenders is within legislative discretion’.” (p. 745.)
The court continued:
“Congress . . . has [as much] power to vary provisions for administrative alleviating of sentences as to vary provisions for judicial imposing of sentences, between classes of criminal offenses. Cruelty of punishment as related to sentences turns on what the sentence authorizes to be inflicted. What is reasonable punishment on this basis cannot, therefore, be contended to be cruel because it is without privilege of administrative alleviation, or because the privilege of seeking such alleviation is different than as to some other class of offense.
“Other Circuits, where the constitutional contention has been presented, have similarly held that no question of cruel and unusual punishment is involved from the closing of a narcotic sentence to parole privilege. Gallego v. United States, 9 Cir., 276 F.2d 914; Lathem v. United States, 5 Cir., 259 F.2d 393. See also Oliver v. United States, 8 Cir., 290 F.2d 255; Halprin v. United States, 9 Cir., 295 F.2d 458; Witt v. United States, 9 Cir., 287 F.2d 389. As the Ninth Circuit summarized it in Gallego, supra, § 7237 (d) ‘merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place’. 276 F.2d at 918.” (pp. 745-746.)
In Black v. State, 509 P.2d 941 (Okla. Crim. 1973), the appellant had been convicted of the unlawful delivery of marijuana. He was sentenced to two years under a statute which provided that “Such sentence shall not be subject to statutory provisions for suspended sentences, deferred sentences or probation.” The defendant contended that denial of the possibility of probation constitutes cruel and unusual punishment and violates due process and equal protection of the laws. The court quotes a 5th Cir. case, Lathem v. United States, 259 F.2d 393 (5th Cir. 1958):
“ ‘Probation and parole are a matter of legislative grace. There is no substance to appellant’s contention that the power to grant probation and parole invades the power of the judiciary and violates the doctrine of separation of powers. . . . There is also no merit to the contention that denial of probation for a first offense is cruel and unusual punishment. The punishment, imprisonment, is usual. Ginsberg v. United States, 5 Cir., 1938, 96 F.2d 433.’ ” (p. 942.)
In Cipolla v. State, 207 Kan. 822, 486 P.2d 1391, we held:
“A sentence of not less than 40 years nor more than 60 years permitted by K.S.A. 21-534 as enhanced by K.S.A. 21-107a, under the circumstances disclosed by the record, is not so disproportionate to the offense and petitioner’s past history of crime as to constitute cruel and unusual punishment.” (Syl. 3.)
Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (State v. Coutcher, 198 Kan. 282, 287, 424 P.2d 865; Cipolla v. State, supra, pp. 824-25; Anno: Cruel Punishment—Length of Sentence, 33 A.L.R.3d 335.)
In determining whether the length of a sentence offends the constitutional prohibition against cruel punishment three techniques should be considered:
(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.
A mandatory minimum sentence of one year for carrying a firearm without a license was upheld in Commonwealth v. Jackson, 344 N.E.2d 166 (Mass. 1976). On the other hand, a mandatory minimum sentence of ten years for a repeat drug violator was held constitutionally impermissible in the case of In re Foss, 10 Cal. 3rd 910, 112 Cal. Rptr. 649, 519 P.2d 1073. A minimum mandatory sentence of five years for the first offense conviction of importation of marijuana was upheld in Gallego v. United States, supra. Various courts have upheld minimum mandatory sentences of five years for narcotic violations. See cases reviewed in People v. Weiss, 358 N.Y.S.2d 267, 270, 78 Misc. 2d 792.
State cases upholding mandatory minimum sentences for narcotics violations are collected in 81 A.L.R.3d at §4, pp. 1198-1200. These include cases from the states of Maine, Oklahoma, Iowa, and Louisiana in which mandatory minimum sentences ranging in severity from two to ten years have been upheld against challenges of cruel and unusual punishment.
In Kansas the penalty for a particular crime is classified according to the legislative concept of the severity of that crime. The classes named in a descending order of their severity are A, B, C, D, and E felonies. Murder in the first degree, with premeditation and malice, is a Class A felony and carries a greater penalty. Murder in the second degree is classified, along with aggravated robbery, kidnapping and aggravated battery of a law enforcement officer, as a Class B felony. We know of no crime more serious in nature which carries a less severe punishment than that assessed in the present case. We have examined the penalties assessed in various other jurisdictions for murder in the second degree. The penalty for such crime in a majority of jurisdictions in this country is as great as the penalty in Kansas, if not greater.
Applying the three pronged test set out above to the facts and circumstances of our present case we hold a five year mandatory minimum sentence without probation and parole privileges for the crime of murder with a firearm cannot be held so cruel or unusual either in its method or its length that it shocks the conscience and offends fundamental notions of human dignity so as to be constitutionally impermissible.
The appellant next contends the five year mandatory minimum sentence without probation or parole privilege denies her equal protection of the law.
It is argued that because the denial of probation and parole privileges in K.S.A. 1977 Supp. 21-4618 and 22-3717(8) is made mandatory for Article 34 crimes in which the defendant used a firearm such is unreasonable and results in unequal treatment. A wife who uses a club or a knife to kill her husband would be subject to probation and parole privileges. It is urged the firearm classification has no rational basis. In addition it is pointed out that these statutes relate only to Article 34 crimes, and a person who commits rape, an Article 35 crime, while using a firearm, could be granted probation and parole privileges.
In Henry v. Bauder, 213 Kan. 751, 518 P.2d 362, it is stated:
“Under federal and Kansas equal protection constitutional provisions, a state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation.
“The constitutional principle of equal protection does not preclude the state from drawing distinctions between different groups of individuals, but does require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (Syl. 1 and 2.)
In State v. Goodseal, 220 Kan. 487, 553 P.2d 279, this court upheld the felony murder rule against these same challenges— those of cruel and unusual punishment and denial of both equal protection and due process. The court noted the purpose of the felony murder rule was:
“. . . [T]o furnish an added deterrent to the perpetration of felonies which, by their nature or the attendant circumstances, create a foreseeable risk of death. ‘The legislature, acting in the exercise of the police power of the state, is empowered to enact measures in furtherance of the public welfare and safety, and its enactments in such areas are not to be judicially curtailed where they reasonably relate to the ends sought to be attained. Classification honestly designed to protect the public from evils which might otherwise arise are to be upheld unless they are unreasonable, arbitrary or oppressive’ (State v. Weathers, 205 Kan. 329, Syl. para. 1 & 2, 469 P.2d 292). The felony murder rule, designed as it is to protect human life, represents sound public policy, is reasonably related to the end sought to be accomplished and is not constitutionally impermissible.” (pp. 493-494.)
A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment. See State v. Sherk, 217 Kan. 726, 730, 538 P.2d 1399.
Courts generally have upheld statutes imposing mandatory sentences upon convicted narcotics offenders while prohibiting probation and parole. See Anno: Narcotics Offenses — Mandatory Sentence, 81 A.L.R.3d, §6, pp. 1202-1204. It would seem that deterrence of the use of firearms in the commission of crimes against persons would be an equally legitimate legislative concern.
This court has said it considers the fixing and prescribing of penalties for violating the criminal statutes of this state a legislative function. (State v. Shaw, 201 Kan. 248, 250, 440 P.2d 570; Cipolla v. State, supra, p. 824.) There has been much public concern over the increased number of crimes where firearms are being used. By singling out the use of a firearm for a mandatory sentence the legislature merely addresses itself to a problem urgently requiring remedial action. The deterrence of the use of guns in committing crimes against persons (Article 34 crimes) is a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal. See Commonwealth v. McQuoid, _Mass. _, 344 N.E.2d 179.
We hold that K.S.A. 1977 Supp. 21-4618 and 22-3717(8), which deny the privileges of probation and parole and require mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime, are not constitutionally impermissible as denying equal protection of the law.
The due process argument of the defendant is not well delineated in her brief. It is largely based upon the equal protection arguments heretofore answered, and upon legislative encroachment upon the judicial function of tailoring the penalty to fit the crime as recognized in K.S.A. 21-4601, supra.
At the outset it should be noted that although these statutes deny probation and parole powers they do not have the effect of taking away all judicial discretion in fixing the sentence to be imposed. The statutory penalty for murder in the second degree appears in K.S.A. 21-4501(h) as follows:
“Class B, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than five (5) years nor more than fifteen (15) years and the maximum of which shall be life;”
Under this legislative provision the sentencing court in its discretion may fix the minimum term of imprisonment at not less than five (5) years nor more than fifteen (15) years. In the present case the defendant received a minimum sentence of five (5) years, the least possible under the statute. It cannot be said that the sentencing court had no discretion in imposing sentence. A fifteen (15) year minimum sentence would have been possible.
Although the separation of powers doctrine is fundamental to our form of government and must be maintained to its full extent, the exact line between judicial and executive or legislative powers has never been delineated with precision. See State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537.
In State v. Motley, 546 S.W.2d 435 (Mo. App. 1976), the Missouri court rejected the position advanced by the defendant that a court has inherent power to grant or deny a convicted offender probation on consideration of mitigating circumstances, and that to restrict this power by statute would constitute an impermissible legislative usurpation of the court’s prerogative. See also Black v. State, supra, and State v. Boisvert, 348 A.2d 7 (1975 Me.).
We hold that in light of the Kansas sentencing statute, K.S.A. 21-4501(b), the provisions of K.S.A. 1977 Supp. 21-4618 and 22-3717(8) denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of the crime of murder in the second degree are not such a restriction on the judicial power of the sentencing judge as would constitute an impermissible legislative usurpation of the court’s prerogatives.
We now turn to the remaining points raised by appellant. The appellant argues a new trial should have been granted because of newly discovered evidence. The evidence referred to as newly discovered bears on a belated claim of insanity first urged on the motion for new trial. The claim is based upon emotional outbursts of the defendant occurring during the trial. The granting of a new trial on the grounds of newly discovered evidence rests largely in the discretion of the trial court. (State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993.) We have examined the record and find no abuse of discretion in denying a new trial.
Appellant’s point five relating to insufficiency of an instruction on self-defense was neither briefed nor argued and is declared abandoned.
Appellant contends the court erred in failing to give a requested instruction and in giving various instructions alleged to have been confusing to the jury. We have carefully examined these contentions. The instruction requested by appellant was adequately covered in the other instructions given by the court. The burden of proof instruction to which appellant now objects was properly given as suggested in PIK Criminal 52.02. The elements instruction to which appellant now objects covered the crime of second degree murder and followed the form suggested in PIK Criminal 56.03. No error in the instructions has been shown.
The appellant argues that the court erroneously admitted a statement made by her to a police officer immediately after the homicide.
It is the duty of the trial court, before admitting a purported confession into evidence, to conduct a proceeding separate and apart from the jury to determine from the evidence as a preliminary matter whether the confession was freely and voluntarily made. This decision must be based upon a consideration of the totality of the circumstances. If the confession was the product of a rational intellect and a free will it is properly admissible in evidence. (State v. Wilson, 220 Kan. 341, Syl. 7 and 8, 552 P.2d 931.) The trial court’s determination will be upheld if supported by substantial competent evidence. (State v. Creekmore, 208 Kan. 933, 495 P.2d 96.)
The trial court conducted a Jackson v. Denno hearing in this case and determined the statement was admissible. Officer Williams testified the defendant was crying off and on but had no difficulty in talking, and spoke in sentences. He had stated she was in hysterics at the time he advised her of her rights. She appeared to understand those rights. She was crying, her voice was “excited” when she answered his questions. She was still that way when he was questioning her, though she calmed down as he talked to her. She was not screaming but she was crying and did not seem to have complete control of herself. She told him she understood her rights.
This court quoted from 2 Wharton’s Criminal Evidence, §386 (12th ed.), in State v. Brunner, 211 Kan. 596, 507 P.2d 233:
“ ‘Evidence tending to establish that a confesser was ill or in a hysterical condition, and therefore not in full possession of his faculties at the time he confessed his guilt, does not affect the admissibility of the confession, but bears on the weight and effect to be given the confession.’ (pp. 119-20.)” (p. 602.)
Here the court found there was no coercion or duress, no threats, that she was capable of understanding, and the statement had been made voluntarily. This finding is supported by the record.
The final point concerns separation of witnesses. The statute providing for separation of witnesses reads:
“During the examination of any witnesses or when the defendant is making a statement or testifying the magistrate may, and on the request of the defendant or state shall, exclude all other witnesses. He may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.” (K.S.A. 22-2903.)
The request to sequester witnesses was made after the trial of the case had begun. Following voir dire, the court conducted a Jackson v. Denno hearing outside the jury’s presence to determine the admissibility of the statements made by the defendant to Officer Williams and Detective Stokes. Defendant moved to sequester witnesses. The trial judge upheld it as to one witness, Mrs. Grason, but he allowed Detective Stokes to remain while Officer Williams testified.
Defendant acknowledges the holding in State v. Ralls, 213 Kan. 249, 515 P.2d 1205, but argues the request for sequestration occurred during a hearing in camera, was preliminary to the actual trial of the case, and on request it became mandatory under the statute that all witnesses be separated.
In State v. Ralls, supra, the court held:
“The mandatory provisions of K.S.A. 1972 Supp. 22-2903 deal with appearances before a magistrate which lead up to and include the preliminary examination. They do not apply to a criminal trial.
“The exclusion or sequestration of witnesses during a criminal trial is a matter not of right but of discretion on the part of the trial court.” (Syl. 5 and 6.)
In State v. McVeigh, 213 Kan. 432, 516 P.2d 918, the court held:
“. . . The mandatory features of the statute apply only to the preliminary phases of a prosecution leading up to and including the preliminary examination, not to the criminal trial itself. . . (p. 436.)
With unification of the trial courts in Kansas the use of the word magistrate in K.S.A. 22-2903 creates some question as to the proper application of the mandatory features of the statute. In Sedgwick County, for instance, all judges in the unified trial court are either district judges or associate district judges and they may sit at both the preliminary hearing and the trial. Whatever may have been the legislative intent in making sequestration mandatory on request when testifying before a magistrate we adhere to our previous construction of this statute as declared in Ralls and McVeigh. The mandatory provisions for separation of witnesses in K.S.A. 22-2903 apply to preliminary hearings and until such time as the accused is bound over for trial; thereafter the exclusion or sequestration of the witnesses is not a matter of right but lies in the sound discretion of the trial court under the general rule recognized in State v. Theus, 207 Kan. 571, Syl. 4, 485 P.2d 1327, and State v. Owens & Carlisle, 210 Kan. 628, 629, 504 P.2d 249. In the absence of any showing of prejudice to the defendant we cannot find any abuse of discretion by the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This appeal was recently before this court and was dismissed for apparent lack of jurisdiction in an opinion filed November 5, 1977.
At the time of the original hearing and decision in this case, the record supplied by counsel affirmatively reflected the appeal was filed out of time and that this court had no jurisdiction. Subsequent to our original opinion the defendant was granted leave to file an amended record which correctly set forth the facts and which now indicates the appeal had been taken in time. Therefore, our order of November 5, 1977, dismissing the appeal is set aside and we will proceed to consider the matter on the merits.
This is a direct appeal in a criminal action in which defendant-appellant was convicted by a jury of aggravated robbery. (K.S.A. 21-3427.)
The sole question raised by defendant is whether his right to due process of law under the Fourteenth Amendment of the U.S. Constitution was denied when the trial court allowed the prosecutor to impeach the defendant through cross-examination on defendant’s post-arrest, pre-trial silence.
Clyde E. Linder, a cab driver for the Yellow Cab Company in Topeka, Kansas, was dispatched at approximately 3:00 a.m., December 20,1973, to 1005 Wear Circle, Topeka. At that address the defendant, Warren Smith, entered the front seat of the cab, at which time Linder observed his face and clothing, and a companion got into the back seat. Linder drove to 15th and Madison, Topeka, where he stopped at defendant’s direction. Defendant stuck a knife toward Linder and stated, “I want your money.” Linder gave him $12.00 in one-dollar bills. Linder was successful in fleeing the cab but in doing so obtained a slight cut in the stomach area from the object defendant was holding. Within a matter of two or three minutes, Linder called the Topeka Police Department and described defendant and his companion and furnished details of the crime. This information was immediately dispatched by radio to patrol units in the area. Linder then went to the Topeka Police Station where a short time later he observed defendant and made a positive identification based upon his facial appearance and clothing.
Officer Morales of the Topeka Police Department saw defendant shortly after the message had been dispatched over the police radio. Defendant and a companion were crossing a street at 14th and Quincy near the scene of the crime and, as they met the descriptions which had been dispatched, the officer directed defendant and his companion to stop.
Gary Dale Anderson of the Topeka Police Department arrived and observed defendant and his companion, who both met the descriptions that had been broadcast over the police radio, observed blood on the hand of defendant and that he was wearing waffle stomper type boots.
It was stipulated that there was fresh snow on the ground.
Three additional police officers arrived at the scene of the crime and observed two sets of footprints in the snow leading away from the scene. They followed the tracks and they led directly to the point where defendant and his companion had been apprehended. Along the route they found seven blood-stained one-dollar bills and a billfold with a receipt in it made out to Andy Smith. Andy Smith turned out to be the companion and younger brother of the defendant. One set of tracks was made by waffle stomper type boots similar to those of the defendant and the other set of tracks matched the cowboy boots worn by Andy Smith. Both sets of tracks proceeded together and it was apparent that the persons who made them had been together continuously from the scene of the crime to the point where defendant and his brother were stopped.
Pam West testified she is the sister of the defendant, lives at 1005 Wear Circle, Topeka, and her brother visits her on an unannounced basis.
Keith Hobart, a superintendant at the Yellow Cab Company, determined from company records that at 3:03 a.m., December 20, 1973, Mr. Linder was dispatched to pick up a fare at 1005 Wear Circle, Topeka.
There was additional substantive evidence presented by the State.
The defendant took the witness stand in his defense and testified that he attended a party that evening at Frank Ingrem’s house, 2138 E. 12th Street, Topeka. At approximately 2:45 a.m. he decided to go visit one Randy Elliott just to talk. Randy Elliott lived on West 10th Street in Topeka, and defendant did not call before starting to walk over to see Mr. Elliott. Defendant said he ran into his brother at 13th and Monroe, on his way to Randy Elliott’s house. (This was not on a logical route to West 10th Street from his alleged departure point.) Defendant admitted having blood on his hands and dropping some one-dollar bills which he received from his brother.
After defendant’s testimony on direct examination, the court took a recess to consider a proffer by the state prosecutor of questions that the state was considering asking the defendant on cross-examination. The court upon the authority of State v. Jackson, 201 Kan. 795, 443 P.2d 279, cert. den. 394 U.S. 908, 22 L.Ed.2d 219, 89 S.Ct. 1019, overruled the defendant’s objection as to the proffered inquiry.
The trial resumed and on cross-examination, Mr. Morrison, assistant district attorney, asked the defendant:
“Q. In regards to this business about going over to Randy Elliott’s house that night, when was it after you were apprehended on the 20th that you told the police this entire detail?
“A. I didn’t.
"Q. Okay. Never did?
“A. No.
“Q. Not on the 20th?
“A. No.
“Q. Not on the 21st?
“A. No.
“Q. Never told them?
“A. No.
“Mr. Morrison: Thank you. No further questions, Your Honor.”
On re-direct examination defendant’s counsel asked:
“Q. Would you care to explain why you didn’t tell the police?
“A. Yes, because at the time when they called us and they booked us in I asked them what are we charged with and they said with aggravated robbery. And they gave us our rights, so I said and I figured it would be best just to remain silent until we got our counsel.”
No further questions as to defendant’s post-arrest silence were asked by either counsel and no comment on the same was made by the prosecution in closing argument.
The trial of this action took place in 1974 prior to the decision in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240, and our decision in State v. Heath, 222 Kan. 50, 563 P.2d 418.
“The use for impeachment purposes of a defendant’s silence at the time of his arrest and after receiving Miranda warnings violates the due process clause of the Fourteenth Amendment to the United States Constitution.” State v. Jordan, 223 Kan. 197, Syl. 1, 574 P.2d 194.
“Where a prosecutor on cross-examination improperly asks a defendant why he did not tell his story to a police officer following his arrest and after receiving Miranda warnings, a new trial is not required if the court finds from the totality of circumstances that such conduct constituted harmless error beyond a reasonable doubt.” State v. Jordan, supra, Syl. 2.
Although the questioning of defendant by the prosecutor as to defendant’s post-arrest silence was improper, considering the “totality of circumstances” in this case, we find that it constituted harmless error beyond a reasonable doubt.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an action brought by the relatrix, Katy Marie Wingard (now Katy Marie Rotramel), to determine the paternity of her son, Paul Jason Wingard. Although Alfred Eugene Sill was found to be the father, plaintiff appeals because the district court (1) found K.S.A. 38-1106 to be unconstitutional and (2) allowed the father visitation rights with the child. Defendant cross-appeals contending the district court erred in (1) not declaring all of the paternity statute to be unconstitutional, (2) denying defendant a jury trial, and (3) ordering that defendant pay child support.
We first deal with the constitutional issues. The district court found K.S.A. 38-1106 unconstitutional under the equal protection clause because it treated unmarried fathers differently than married fathers. For the reasons set forth herein we disagree with the district court’s conclusion.
K.S.A. 38-1106 states:
“Upon adjudging that the defendant is the father of the child whose paternity is in issue, the court shall make an appropriate order requiring the defendant to provide for the support and education of the child and the payment of the mother’s necessary medical expenses incident to the birth of the child. The judgment shall specify the terms of payment and may require the defendant to provide a bond with sureties to secure such payment. If the defendant fails or refuses to make the payment or to supply the bond required by the judgment he may be adjudged in contempt of court and punished accordingly. The court may at any time during the minority of the child modify or change any such order of support as the interest of the child may require.”
K.S.A. 60-1610(a) states:
“(a) Care of minor children. The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, . . .”
The equal protection clause of the state and federal Constitutions prohibits disparity in treatment by the state between classes of persons who are arguably indistinguishable. (State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 [1978]; Ross v. Moffit, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437 [1974].) This does not mean that all persons must be treated identically, but that they must be treated substantially similar in the same circumstances. The classifications created by the state are not required to be mathematically precise and may be somewhat imperfect (Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L.Ed.2d 797, 94 S.Ct. 1536 [1974]; Dandridge v. Williams, 397 U.S. 471, 25 L.Ed.2d 491, 90 S.Ct. 1153, reh. denied 398 U.S. 914, 26 L.Ed.2d 80, 90 S.Ct. 1684 [1970]), as long as they bear some reasonable relationship to the purpose to be achieved by the legislation. (State ex rel. Schneider v. Liggett, supra; McGowan v. Maryland, 366 U.S. 420, 6 L.Ed.2d 393, 81 S.Ct. 1101 [1961].)
It must be remembered that a statute is cloaked with a presumption of constitutionality and that cloak remains unless the right infringed upon is “fundamental” or subject to a “suspect classification.” (State ex rel. Schneider v. Liggett, supra.)
The district court held K.S.A. 38-1106 unconstitutional because it placed a greater duty of support upon unmarried fathers with children than upon married fathers. We do not agree. K.S.A. 38-1106 requires the court to make an “appropriate order requiring the defendant to provide for the support and education of the child.” K.S.A. 60-1610(a) requires the court to make provisions for the custody, support and education of the minor children. In each case it has been the practice of the courts of this state to enter an order for support, taking into consideration the needs of the child or children and the financial ability of the father to contribute to the support of his offspring. Nothing contained in K.S.A. 38-1106 requires the putative father of an illegitimate child to give that child greater support because it is illegitimate than he would be required to give under the same financial circumstances if the child were legitimate.
Defendant attacks the provision of K.S.A. 38-1106 requiring the putative father to pay medical expenses as violative of the equal protection clause because divorced fathers are not required to do the same under K.S.A. 60-1610(a). First, we see no difference in the responsibility imposed by 38-1106 on an unmarried father from that imposed on a married father. K.S.A. 38-1106 makes the unmarried father responsible for medical expenses for which the married father is already liable by virtue of his status as a husband and the child’s father. Even if this were not the case the equal protection clause is not violated. The state may lawfully treat persons differently if there is a valid legislative reason for doing so. (State ex rel. Schneider v. Liggett, supra.) In this case the difference in treatment is valid. In Quilloin v. Walcott,_ U.S._[Slip Opinion No. 76-6372, decided Jan. 10, 1978], 54 L.Ed.2d 511, 98 S.Ct. 549, the Court approved the differentiation between married and unmarried fathers, stating:
“Appellant contends that even if he is not entitled to prevail as a matter of due process, principles of equal protection require that his authority to veto an adoption be measured by the same standard that would have been applied to a married father. In particular, appellant asserts that his interests are indistinguishable from those of a married father who is separated or divorced from the mother and is no longer living with his child, and therefore the State acted impermissibly in treating his case differently. We think appellant’s interests are readily distinguishable from those of a divorced father, and accordingly believe that the State could permissively give appellant less veto authority than it provides to a married father.” (p._)
The purpose of the paternity statute is to attempt to place the illegitimate child and its mother on par with the legitimate child and its mother. This court well knows that oftentimes the father of an illegitimate child disappears long before the child is born and makes no attempt to aid the mother until the judicial system intervenes. Although the putative father may have a moral obligation to support the child, legal responsibility does not arise until paternity is adjudicated. On the other hand, the married father is usually not only present at the time of birth to aid the mother, but is also legally known to be the person responsible for the support and welfare of the child and at least jointly responsible for the mother’s medical expenses. For this reason we find K.S.A. 38-1106 to be constitutional.
Defendant asks us to strike down all of the paternity statute (K.S.A. 38-1101, et seq.), raising equal protection arguments similar to those we have just considered. In light of our determination that the statute is intended to require the father of an illegitimate child to support his child in the same manner as a legitimate father, we see nothing improper with the statute and hold that it has a reasonable relationship to the legislative purpose of requiring the father of a child to support that child in accordance with the needs of the child and the father’s financial ability.
Defendant also argues the statute is unconstitutional because it places a greater burden of support and responsibility upon him than upon the mother. We see no merit in his argument. The mother of the child and the defendant are in different positions due to obvious biological factors. The mother bore the burden of carrying the child until birth and after that time was left with the responsibility of raising the child. Although the statute requires the father to give support for the child, it does not lift the same responsibility from the mother who assumed the role of supporting the child long before the father was required by the district court’s order to support the child. The sex discrimination cases cited by defendant do not apply.
After the district court found defendant to be the father of the child and entered a support order, defendant moved the court to establish reasonable visitation. The court granted visitation without a hearing. Plaintiff argues the district court erred.
Whether the father of an illegitimate child has a right to reasonable visitation is an issue of first impression in this juris diction. Those jurisdictions considering the issue have overwhelmingly concluded that a father has a right to visitation if it is in the best interest of the child. (Bagwell v. Powell, 267 Ala. 19, 22, 99 So. 2d 195 [1957]; Strong v. Owens, 91 Cal. App. 2d 336, 341, 205 P.2d 48 [1949]; Forestiere v. Doyle, 30 Conn. Supp. 284, 310 A.2d 607, 609 [1973]; In Re One Minor Child, 295 A.2d 727 [Del. 1972]; Mixon v. Mize, 198 So. 2d 373, 375, cert. denied 204 So. 2d 211 [Fla. App. 1967]; People ex rel. Vallera v. Rivera, 39 Ill. App. 3d 775, 351 N.E.2d 391 [1976]; Taylor v. Taylor, 295 So. 2d 494, 496, cert. denied 299 So. 2d 799 [La. App. 1974]; Gardner v. Rothman,_Mass._, [A.S. 922, decided April 6, 1976], 345 N.E.2d 370; Turner v. Saka, 90 Nev. 54, 60, 518 P.2d 608 [1974]; Baker v. Baker, 81 N.J. Eq. 135, 85 A. 816 [1913]; People ex rel. “Francois” v. “Ivanova,” 14 A.D.2d 317, 221 N.Y.S.2d 75 [1961]; Ex Parte Hendrix, 186 Okla. 712, 713, 100 P.2d 444 [1940]; Gwiszcz Appeal, 206 Pa. Super. 397, 213 A.2d 155, 15 A.L.R.3d 880 [1965]; In re Guardianship of Harp, 6 Wash. App. 701, 706, 495 P.2d 1059 [1972]; Slawek v. Stroh, 62 Wis. 2d 295, 304, 215 N.W.2d 9 [1974]. But see, In Re Connolly, 43 Ohio App. 2d 38, 332 N.E.2d 376 [1974] [father cannot see child unless he has permission of the mother, or unless he can clearly establish it is in the best interest of the child].)
Visitation is not automatic. Because the power to grant or deny visitation is bottomed upon jurisdiction to provide for custody of a child (K.S.A. 60-1610[a]; Donaldson v. Donaldson, 198 Kan. 111, 113, 422 P.2d 871 [1967]; Lillis v. Lillis, 1 Kan. App. 2d 164, 166, 563 P.2d 492 [1977]), the paramount concern is the welfare of the child. (Bergen v. Bergen, 195 Kan. 103, 403 P.2d 125 [1965]; Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989 [1965].) However, a fit and proper parent is entitled to have access to and at reasonable times visit and be visited by a child who is in the custody of the other parent. (Miracle v. Miracle, 208 Kan. 168, 180, 490 P.2d 638 [1971].) This should hold true for the father of an illegitimate child as well as any other noncustodial parent. The day is gone when the putative father has no parental rights under the law. (See, Stanley v. Illinois, 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208 [1972]; In re Lathrop, 2 Kan. App. 2d 90, 575 P.2d 894 [1978].)
While cases such as Stanley v. Illinois, supra, have eliminated most of the legal restrictions placed upon the illegitimate rela tionship, this does not deny the consideration of valid factual differences between the father of an illegitimate child seeking visitation and that of the divorced father. (Quilloin v. Walcott, supra.) We feel the trial court must consider such relevant factors as (1) the duration and nature of the relationship between the mother and father of the illegitimate child (Matter of Pierce v. Yerkovich, 80 Misc. 2d 613, 363 N.Y.S.2d 403 [1974] [mother and father lived together for over three years — visitation allowed]; E.R. v. D.T., 77 Misc. 2d 242, 353 N.Y.S.2d 612 [1974] [child conceived when thirteen-year-old mother raped by sixty-one-year-old father — visitation denied]); (2) the interest shown by the father in the child’s life (Matter of Pierce v. Yerkovich, supra [child lived with both parents until she was almost three years old — visitation allowed]; In re Lathrop, supra [father’s right to child cannot be severed when he is involuntarily kept away from child]); (3) whether paternity is admitted by father or is judicially established (People ex rel. Vallera v. Rivera, supra at 778; Gardner v. Rothman, supra); (4) whether the father has contributed support to the child (Bagwell v. Powell, supra; Baker v. Baker, supra; Matter of Pierce v. Yerkovich, supra [father established a $59,000 irrevocable trust for the child]; Matter of Anonymous, 12 Misc. 2d 211, 172 N.Y.S.2d 186 [1958]); and (5) the emotional effect the visits would have on the child (People ex rel. Heller v. Heller, 184 Misc. 709, 54 N.Y.S.2d 734 [1945]).
We caution that these guidelines are by no means exhaustive, but only illustrative of the consideration necessary on the issue. The governing criterion should always be the best interest of the child, and not the preferences or prejudices of the parents. Should it appear after visitation privileges have been granted that the father has used them for vexatious purposes, or has had an adverse effect on the child by his presence, the right to visit may be withdrawn.
Every case must be decided on its individual facts. The unique problems of each child must receive individual attention and consideration. Any attempt by this court to determine the best interest of every child by a single rule would be folly. We reverse the decision of the trial court on this issue and remand for a hearing on the issue of visitation in accordance with the guidelines set forth herein.
Defendant argues he was denied a right to trial by jury, citing cases from other jurisdictions which hold that the right exists in paternity proceedings. In State, ex rel., v. Herbert, 96 Kan. 490, 152 Pac. 667 (1915), this court held that the right to jury trial did not exist in a bastardy action. We have examined the authorities cited by defendant and find no reason to deviate from our decision in Herbert.
The last issue concerns the right of the trial court to enter a support order after declaring K.S.A. 38-1106 unconstitutional. In light of our decision that the trial court erred in striking down 38-1106, discussion of this issue is moot.
Plaintiff’s appeal is reversed and remanded with directions and defendant’s cross-appeal is denied. | [
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The opinion of the court was delivered by
Fromme, J.:
Louis Allen Martin was convicted by a jury of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701) of 700 bushels of milo from a grain bin in Gray County, Kansas. An employee testified at the trial that he and the defendant drove the defendant’s truck and semitrailer from Lyons, Kansas, to the bin and loaded the milo on February 18, 1974. The grain was sold to the Continental Grain Company in Hutchinson, Kansas.
The following day the owner of the grain discovered the loss. The door to the granary was open. The metal slats in the doorway to the bin had been bent. The sheet of plastic forming the moisture shield had been broken open and it appeared an auger had been used to load the grain.
A check in payment for the milo was issued by Continental Grain Company and the check was presented to the Lyons State Bank by the defendant. When presented to the bank $1500.00 was deposited to the account of the defendant’s wife and $329.72 was paid to defendant in cash.
In addition to the testimony of defendant’s employee there were physical objects which tended to link defendant’s truck to these crimes. A flashlight and a broken tarp-hook were found under spilled grain in front of the bin. The flashlight was similar to ones kept in defendant’s trucks and the broken tarp-hook matched a part of one taken from the truck used in hauling the grain.
We have examined all of the evidence in the record. Defendant’s motion for judgment of acquittal was properly overruled. See State v. Gustin, 212 Kan. 475, Syl. 3, 510 P.2d 1290, and State v. Wilson & Wentworth, 221 Kan. 359, Syl. 2, 559 P.2d 374.
Complaint is made because of the admission of the flashlight which was found under the spilled grain at the bin two days after the theft occurred. The trial court found that sufficient foundation was laid for its admission. This court has repeatedly pointed out that it is not necessary for admission that identification of physical objects be positively and indisputably established. The lack of a positive identification and the delay in the discovery of the flashlight affect the weight of this evidence, rather than its admissibility. See State v. Ponds and Garrett, 218 Kan. 416, 420, 543 P.2d 967; State v. Baker, 219 Kan. 854, 858, 549 P.2d 911; and State v. Rives, 220 Kan. 141, 551 P.2d 788.
Appellant complains because of the admission of an original scale ticket offered during the testimony of the office supervisor of Continental Grain. The ticket was admissible as a business entry under K.S.A. 60-460(m). It was not necessary to call the maker of the scale ticket. See Olathe Ready-Mix Co., Inc. v. Frazier, 220 Kan. 646, 556 P.2d 198; State v. Newman, 213 Kan. 178, 515 P.2d 814; and State v. Rives, supra.
Further complaint is made that the laboratory reports on the broken tarp-hook and documents concerning the sale of grain to Continental should have been excluded from evidence because they were not disclosed and furnished to appellant prior to trial. The cases cited by appellant relate to the suppression of evidence which was not disclosed by the state after a request for such evidence was made before trial. No motion for disclosure or discovery was made by the appellant in this case. See K.S.A. 22-3212. No error appears in the admission of this evidence.
It is argued the state failed to establish proper venue in Gray County because there was testimony the land on which the bin was located was near the Gray-Finney County line. Venue is a question of fact to be determined by the jury. See State v. Johnson, 222 Kan. 465, Syl. 7, 565 P.2d 993. The owner testified it was located in Gray County although he did not know how far from the line. He further testified the bins were located on the Northeast quarter of Section 1, Township 24, Range 29. Under the instructions the jury was required to and did find the theft occurred in Gray County. The argument is without merit.
Appellant contends the court erred in allowing the jury to speculate on circumstantial evidence. There was substantial relevant evidence to support the verdict and we refer the reader to what was said in State v. Johnson, supra, p. 468, regarding the sufficiency of circumstantial evidence.
Appellant complains because the trial court gave an instruction defining the word “enter” as it related to the charge of burglary in this case. He argues it is not a word of art and needs no definition. He does not contend the instruction given was an erroneous statement of law or show how he was prejudiced by the instruction given. He further complains because the court did not define the word “intent”. In the instructions setting forth the elements of each crime the court instructed on the specific intent required to establish these crimes as requested by defendant at the trial. A further attempt to define “intent” would have been confusing and was not required. There was no error in the instructions given.
This court has examined all points raised by appellant in his brief and finds no reversible error.
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Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Earle E. Brehmer, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Earle E. Brehmer, Norton, Kansas, notwithstanding admonishments of the court, neglected legal matters entrusted to him either as administrator or executor of several estates, or as attorney for the administrator or executor of said estates, by failing to meet the statutory time standard or obtain court authority to deviate from the standard, and thereby violated DR 6-101 (A) (3) of the Code of Professional Responsibility (214 Kan. lxxxvii), and
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said Earle E. Brehmer be disciplined by “Public Censure” as provided by Rule 203 (a) (3) (220 Kan. xxviii [Adv. Sheet No. 2]), and
Whereas, In accordance with Rule 213 (c) (220 Kan. xxxiii [Adv. Sheet No. 2]), a copy of the report, findings and recommendations of the Board was mailed to respondent on July 27, 1977, along with a citation directing respondent to file with the Court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
Whereas, Under date of August 19, 1977, respondent filed his response to the citation, stating that he did not wish to file exceptions to the report, findings and recommendations, but requesting permission to appear before the Court with counsel to make a statement regarding the recommendations for discipline, and
Whereas, On the 23rd day of September, 1977, after notice to respondent, a hearing was held before the Court for the purpose of allowing respondent to make his statement. The State of Kansas appeared by Philip A. Harley, assistant attorney general, and respondent appeared in person and by his attorney, Terry E. Relihan, and
Whereas, Upon consideration of the record and the statement by respondent, and being fully advised in the premises, the Court accepts the report, findings and recommendations of the State Board of Law Examiners.
It is, therefore, by the Court, Considered, Ordered and Adjudged that the said Earle E. Brehmer be and he is hereby disciplined by public censure and that he pay the costs of this proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports.
By Order of the Court, dated this 23rd day of September, 1977. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a conviction of aggravated robbery (K.S.A. 21-3427). Defendants, James C. Stuart and Daryl B. Jones, raise common issues on appeal as well as points which will be considered separately.
At approximately 9:30 p.m. on March 2,1977, a Wichita service station was robbed. The station attendant, Joseph W. Briggs, had just returned from a restroom when he looked up and saw a man pointing a gun at him. Directly behind the first man was a second individual who did not appear to be armed. The first man advanced toward Briggs, grabbed him by the jacket, jabbed the gun into the attendant’s ribs, and told him to get the money. Briggs went to the desk where the station receipts were kept and unlocked the drawer. As he started to open the drawer the man holding the gun pushed him out of the way, opened the drawer and emptied the cash box. During this time the second man kept a lookout. The robbers then demanded to know where the rest of the money was kept. Briggs explained that he had earlier put the rest of the money in a safe and he didn’t have a key to open it. Both robbers attempted to shake the safe to see if it would open. Finally, the unarmed male stated, “Let’s get out of here, let’s go.”
After the robbers fled, Briggs called police, explained he had just been robbed, and gave an extensive description of the two assailants. This report was broadcast to patrol officers, several of whom drove to the area of the robbery. One officer, Steven Almon, began to check the streets in the surrounding area for any unusual activity which might be related to the robbery. He noticed a car parked approximately two blocks away with the dome light on. He drove past the car and observed two males matching the general description of the robbers sitting in the car. After making a U-turn he pulled up behind the parked car. Defendant Jones got out from the driver’s side of the car and walked toward Officer Almon. The passenger, defendant Stuart, got out of the car and at the same time Officer Kerry Chastain arrived at the scene. He escorted Stuart over to the spot where Officer Almon and Jones were talking and told Officer Almon he had seen something in the car. Officer Almon walked to the passenger side of the car, shined his flashlight in the car and observed on the floorboard a stocking cap, a gray coin wrapper and a large amount of loose change. Upon making a radio inquiry, he was advised that rolled coins had been taken in the robbery. After receiving this information the officer looked into the car again and saw another stocking cap from which a gun barrel was protruding. He advised Jones and Stuart they were under arrest and read them their rights.
The car and its contents were secured by another police officer until lab investigators arrived and Officers Almon and Chastain took Jones and Stuart in separate cars to the scene of the gas station robbery. Both defendants were removed from the patrol cars and positioned under the floodlights on the service station drive. The victim made a positive identification of both defendants as the robbers who held him up approximately one-half hour earlier.
At trial the victim testified he was able to make positive identification of the defendants at the scene based upon the clothes they were wearing. He described the gun used by defendants and said the gun marked as state’s Exhibit 10 was the same gun that had been used in the robbery. The station manager testified that $127.16 in bills, rolled coins and loose change was taken. Police officers testified they recovered $108.47 in bills, rolled coins and loose change from defendants and the vehicle.
Both defendants testified in their own behalf, seeking to establish an alibi. Stuart testified he had been at home all evening watching television with his wife until his cousin, Daryl Jones, came to the house. They then went out to the car and talked until they were arrested by the police. Stuart sought to explain the possession of the handgun by stating he had found it a few days earlier and had taken it to Jones’ car with him to ask Jones if he knew someone who might like to buy it.
Jones testified he had gone to Wichita North to watch a basketball game between his alma mater, Wichita South, and Topeka. He left before the game was over, because South was ahead, and drove to his cousin’s house. He and his cousin sat in the car and talked until the police stopped them. He explained the presence of the large amount of cash by stating he had just received his income tax refund. He collected change and rolled it, which explained the large amount of loose and rolled change in the car.
At the conclusion of the defendants’ evidence the state introduced rebuttal to the effect that defendant Jones had originally told police he and his cousin were working on the car when police stopped them, not that they were talking to one another about the gun. The state introduced a prior statement by Jones that he didn’t know the gun was in the car or how it got there. Also introduced was a prior statement by Stuart telling police the gun was Jones’ and he was trying to sell it to Stuart when police came upon them.
Common Issues
As their first common ground on appeal, Jones and Stuart allege the state asked improper questions during voir dire and the trial court abused its discretion in overruling their objection. The dispute arose when the prosecutor asked prospective jurors if they could give both the defendants and the state a fair hearing. Both defendants objected and were overruled.
Defendants argue the state is not entitled to a fair trial; this right belongs only to defendants in a criminal trial. We cannot agree. Fundamental to the jury system of justice is the concept that jurors will be fair and impartial and decide a case upon the evidence presented. It would be of little avail for the state to try a case before a jury which would not give it a fair hearing and decide the case upon the evidence. To rule that the state did not have a right to a fair hearing would make the statutory procedure for selecting a jury in a criminal case, including the right to challenge for cause and to peremptory challenge (K.S.A. 22-3410 and 22-3412), a hollow gesture. Defendants somehow believe that asking the jury to give the state a fair trial destroys the requirement that a defendant must be found guilty beyond a reasonable doubt. That is not the case. Each juror in voir dire agreed that he must be convinced beyond a reasonable doubt before he could find either defendant guilty. They were so instructed by the trial court. There is nothing in the record to indicate the jurors did not follow the instruction.
Defendants’ other common complaint arises from the instruction on the jury’s duty to find defendants not guilty if it has a reasonable doubt as to their guilt. The instruction was taken verbatim from PIK (Criminal) 52.02. Defendants argue the jury should have been instructed they “must” find the defendants not guilty if there is a reasonable doubt, rather than the jury “should” find the defendants not guilty. They argue the word “must” is mandatory and complies with K.S.A. 21-3109, while “should” is permissible and does not comply with the statute. We do not agree. In State v. Connor, 74 Kan. 898, 87 Pac. 703, this court held that the word “should” as used in instructions in a criminal case conveys a sense of duty and obligation and could not be misunderstood by a jury. The instruction used in this case has been held to be proper in State v. Wilkins, 215 Kan. 145, 523 P.2d 728, and State v. Taylor, 212 Kan. 780, 512 P.2d 449.
Defendant James C. Stuart
Defendant Stuart raises five points on appeal which are not raised by Jones. First, Stuart complains of the use of the rebuttal testimony concerning the presence of the gun in the car. Most of the rebuttal testimony was directed at impeaching Jones’ story; therefore, it must be disregarded when considering this specification of error. The only rebuttal testimony directed toward impeaching Stuart was his prior statement to police that Jones had the gun and it was he who brought the gun to Stuart, hoping they could find someone who would buy it.
Stuart contends the trial court abused its discretion in allowing the rebuttal testimony to be admitted because it led him into an “ambush” and prejudiced his case. In State v. Burnett, 221 Kan. 40, 558 P.2d 1087, this court stated:
“. . . The use and extent of rebuttal rests in the sound discretion of the trial court. [Citations omitted.] The ruling of the trial court will not be ground for reversal unless it appears discretion has been abused to appellant’s prejudice. . . .” (p. 43.)
In 29 Am. Jur. 2d, Evidence, § 250, pp. 298-99, we find the following:
“. . . Rebutting evidence is that which is given to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but also, evidence in denial of any affirmative fact which the answering party has endeavored to prove.”
Applying the aforestated test to the facts of this case, we find no abuse of discretion in the admission of the rebuttal testimony.
The next point of error concerns the presence in the courtroom of a gun other than the gun identified by the victim as the robbery weapon. The second gun was not admitted into evidence and apparently had no connection with the robbery. When the second gun was brought to the attention of the trial judge on a motion for mistrial he found that the gun had not been prominently displayed during trial so as to influence the jury to the prejudice of Stuart.
This court has stated that in the absence of a showing of bad faith, the display of a firearm thereafter not introduced as an exhibit does not automatically constitute prejudicial error. (State v. Basker, 198 Kan. 242, 424 P.2d 535; State v. Brown, 193 Kan. 654, 396 P.2d 401.) We would caution, however, that the practice of the prosecutor of having such exhibits brought into the courtroom where the jury will see them, with no expectation that the exhibits will be offered into evidence or received as evidence, is frowned upon and under proper circumstances could lead to a mistrial. In this case, the trial court’s refusal to grant a mistrial was not an abuse of discretion. (State v. Rueckert, 221 Kan. 727, 561 P.2d 850.)
Stuart argues the trial court erred in failing to instruct on simple robbery as a lesser included offense of aggravated robbery. The point has no merit. Defendants defended on the theory of alibi; i.e., they didn’t rob the gas station, someone else did. The presence of a gun was never in dispute. Defendants were guilty of aggravated robbery or nothing. (See, State v. Colbert, 221 Kan. 203, 557 P.2d 1235; State v. Huff, 220 Kan. 162, 551 P.2d 880; State v. Buggs, 219 Kan. 203, 547 P.2d 720; State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255; State v. Hollaway, 214 Kan. 636, 522 P.2d 364.)
The trial court instructed the jury it had the duty to evaluate the credibility of the witnesses, using PIK (Criminal) 52.09. In addition, the trial court submitted PIK (Civil) 2.24, which apprised the jury what to do with testimony of a witness who has testified falsely on a material matter. Stuart argues the additional instruction should not have been given, citing no authority for his position. The trial court is under a duty to fully and properly instruct the jury in accordance with the facts and law of the case. In the case at bar the evidence revealed that one or more of the witnesses were willfully lying to the jury on material issues. The jury needed to know how to evaluate the testimony of those witnesses once it had evaluated their credibility. The judge’s instruction supplied them with the necessary guidance, i
Finally, Stuart argues the evidence was insufficient to establish his guilt. No doubt an aggravated robbery was committed by two black males. The issue at trial was the identity of the perpetrators. Evidence on this point was supplied by the victim who described both defendants in explicit detail and made a positive identification minutes after the robbery and at trial. Abundant physical evidence, including the gun, clothing and loot found in the car corroborated the victim’s identification. There was more than enough evidence to sustain the conviction.
Defendant Daryl B. Jones
The only additional points raised by defendant Jones concern the sentence imposed by the trial court. Because the crime was perpetrated with a firearm the trial court refused probation or suspension of sentence and imposed the minimum sentence pursuant to the requirements of K.S.A. 1976 Supp. 21-4618 (now 1977 Supp.).
Jones challenges the constitutionality of K.S.A. 1976 Supp. 21-4618 on the basis that it constitutes cruel and unusual punishment, denies due process and equal protection of the law, and violates the doctrine of the separation of powers between the judicial and legislative branches of government. Each of these points concerning the mandatory sentencing act was raised and determined adversely to the defendant in State v. Freeman, 223 Kan. 362, 574 P.2d 950. It would serve no purpose to iterate what was said by Mr. Justice Fromme in that opinion other than to state that it controls here.
Jones next argues the trial court improperly interpreted K.S.A. 1976 Supp. 21-4618 to deny the possibility of a suspended sentence. The trial court concluded that the mandate required a sentence be imposed, thus precluding the use of a suspension of sentence as defined in K.S.A. 21-4602(2). Although this is an issue of first impression with this court the question before us has been answered by the court of appeals in Esters v. State, 1 Kan. App. 2d 503, 571 P.2d 32. It was the court’s conclusion that when 21-4618 applies, the defendant cannot be granted probation, nor can sentence be suspended.
We have carefully reviewed the decision in Esters and agree with the position taken by the majority of the panel.
Finally, Jones argues he cannot be sentenced under K.S.A. 1976 Supp. 21-4618 because he was an accomplice and did not personally use the firearm in the commission of the crime. To support his position Jones relies on Attorney General Opinion 77-135 and People v. Tarpley, 267 Cal. App. 2d 852, 73 Cal. Rptr. 643 (1968). K.S.A. 1976 Supp. 21-4618 states:
“Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act.”
Whether this statute applies to an unarmed accomplice is a question of first impression. We hold that it does not apply.
Ry the terms of the statute, probation, parole or suspension of sentence is denied to any defendant convicted of an article 34 crime in which “the defendant used any firearm in the commission thereof and such defendant shall be sentenced. . . .” The
term “defendant” is used in the singular throughout the statute. At no time is the term “defendants” used. Ry the same token the statute does not refer to mandatory sentencing applying to aiders and abettors, accomplices or co-conspirators. It is well understood that criminal statutes must be strictly construed against the state and in favor of the defendant. We hold that the statute applies only to the defendant personally armed with a firearm at the time the crime is committed.
The convictions of both defendants are affirmed, as is the sentence of defendant Stuart. The sentence of defendant Jones is vacated and the case is remanded to the trial court for resentencing in accordance with this opinion. | [
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The opinion of the court was delivered by
Prager, J.:
This is an appeal by the petitioner-appellant, Jim Beard, from a judgment of the district court dismissing his petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501. The essential facts in this case are not in dispute and are as follows: Petitioner, Jim Beard, is an inmate at the Kansas State Penitentiary at Lansing, Kansas. The defendant, Raymond Maynard, is the director of the Kansas State Penitentiary. On October 8, 1963, Beard was convicted in the courts of Alabama of the offense of burglary in two cases. He received consecutive sentences of ten years and eight years for a total of eighteen years in the Alabama penitentiary. On February 2, 1970, Beard was paroled by the Alabama parole board. On December 4, 1970, he was declared a delinquent because of a violation of the prohibition law and a fugitive warrant was issued. On February 4, 1972, Beard was sentenced by a federal court to three years confinement in the United States Penitentiary at Leavenworth, Kansas. While Beard was incarcerated in Leavenworth, Alabama parole authorities placed a detainer on the petitioner. On January 14, 1974, petitioner was mandatorily released from the federal penitentiary. Approximately thirty days before Beard’s release, Alabama was advised where the petitioner could be taken into custody under its fugitive warrant. At the time Beard was released from federal custody on January 14, 1974, Alabama parole authorities did not appear. Beard was transferred to the Leavenworth county jail. Pending their arrival, the petitioner was arraigned and released upon a $1,000 appearance bond. Notice was given to the Alabama authorities that a hearing would be held on February 13, 1974, concerning his transfer to Alabama. Once again, the Alabama authorities failed to appear. It is undisputed that the Alabama authorities had notice of both the January and February hearings. As a result of the failure of the Alabama authorities to appear, the magistrate court of Leavenworth county dismissed the fugitive warrant which charged the petitioner with being a parole violator from Alabama.
In a letter dated April 23, 1974, the Alabama parole authorities advised the director of the Kansas board of probation and parole that the prior parole delinquency had been declared void by the Alabama board and that the fugitive warrant previously issued had been withdrawn. The Alabama board requested that the Kansas authorities investigate the feasibility of supervising Beard by Kansas state parole officers on the Alabama parole which had been reinstated. In May of 1974, Beard was visited by a Kansas parole officer. Beard refused to accept Kansas supervision of his Alabama parole. This refusal was reported to the Alabama authorities. At this point, Beard was living and working in Kansas City, Kansas, under the supervision of a United States probation officer.
On June 2, 1974, Beard was involved in the shooting of two men in an apartment in Kansas City, Kansas. Shortly after the shooting, Beard was taken into custody by city police officers. On June 7, 1974, the Alabama state board of pardon and parole declared Beard delinquent on his Alabama parole. On September 16, 1974, Beard was convicted on two counts of second-degree murder and was sentenced to the Kansas State Penitentiary. The circumstances of the two homicides are set forth in the opinion in State v. Beard, 220 Kan. 580, 552 P.2d 900 (1976), which affirmed the homicide convictions. In February of 1975, following the confinement of Beard in the Kansas State Penitentiary, the Alabama authorities filed a parole violator warrant with the Kansas authorities and a detainer was placed on Beard. On October 16, 1975, Beard filed a petition for a writ of habeas corpus in the district court of Leavenworth county. Following the appointment of counsel for the petitioner, a hearing was held to consider the merits of the petition. On November 11, 1975, following the hearing, the district court determined that the petition was without merit and entered judgment denying the writ. The petitioner Beard appeals from that decision.
The points raised on the appeal are essentially those raised in the trial court. At the outset it should be pointed out that the jurisdiction of the district court of Leavenworth county was invoked pursuant to K.S.A. 60-1501. It was the position of the petitioner that the defendant director of the Kansas State Penitentiary, by honoring the Alabama parole violator warrant, had caused petitioner’s conditions of confinement to be harsher than if no detainer were on file. He contended that as a result of the outstanding Alabama warrant the petitioner had been denied reclassification from a maximum security risk and had therefore been denied the right to participate in certain programs provided at the penal institution. This court has recognized jurisdiction in the district court of Leavenworth county in habeas corpus proceedings brought pursuant to K.S.A. 60-1501 to adjudicate claims dealing with conditions of confinement in a penal institution. (Levier v. State, 209 Kan. 442, 497 P.2d 265 [1972].) We have also held that habeas corpus may be used to determine the validity of a detention under an out-of-state fugitive warrant. (In re Jones, 154 Kan. 589, 121 P.2d 219 [1942].) K.S.A. 60-1507 has no application in this case since the petitioner is not attacking the validity of a sentence in the court which imposed the sentence.
Petitioner’s first point on the appeal is that the circumstances of the case as set forth above, resulting in harsher conditions of confinement than if no detainer were on file, constitute cruel and unusual punishment. He complains that when he was in a federal prison, Alabama made no attempt to secure custody of petitioner for his parole violations. He argues that the Alabama parole authorities can’t seem to make up their minds whether to take petitioner into custody and that there is no reason to believe that, at the conclusion of petitioner’s present sentence in Kansas, Alabama would actually attempt to gain custody of petitioner to answer for his parole violations. Viewed in this light, Beard contends that the continuing threat of the Alabama detainer constitutes cruel and unusual punishment. The petitioner has not cited any authority for the position that the issuance of a parole violator warrant in and of itself constitutes cruel and unusual punishment in violation of either Section 9 of the Kansas Bill of Rights or the Eighth Amendment to the United States Constitution. The question of what constitutes cruel and unusual punishment as that term is used in state and federal constitutions has been determined in many jurisdictions. The question was before us recently in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), where we discussed the subject in some depth. In a general way it may be stated that the term includes both methods of punishment which are inhuman and barbarous and disproportionate sentences which shock the conscience.
In Moody v. Daggett, 429 U.S. 78, 50 L.Ed.2d 236, 97 S.Ct. 274 (1976), as in the present case, the petitioner Moody had an outstanding parole violator warrant issued as a detainer after the petitioner’s conviction and confinement in another jurisdiction on two counts of homicide. Moody requested that the warrant be executed immediately and that his parole violation hearing be held at the earliest possible date. The court in Moody held that there was no constitutional requirement that an immediate parole violation hearing be held. It further held that Moody was not deprived of any constitutionally protected rights simply by the issuance of the parole violator warrant. We have concluded that the rule of Moody should be applied in this case. Petitioner Beard’s present loss of liberty is the result of his conviction of two counts of second-degree murder in Kansas. The outstanding parole violator warrant is based upon two other convictions in Alabama. It does not appear from the record that petitioner has ever requested Alabama to provide him a parole violation hearing. Under the circumstances, we have concluded that the petitioner’s present confinement in a Kansas penal institution with an outstanding Alabama detainer on a parole violator warrant does not constitute cruel and unusual punishment under either the Kansas or Federal Constitutions.
As his next point Beard contends that Alabama, by its actions or nonactions, has impliedly waived or pardoned his past parole violations. In support of his position the petitioner cites a case where a state board of parole failed to take action on a parole violation for twenty-eight years (Shields v. Beto, 370 F.2d 1003 [5th Cir. 1967]), and a case where Louisiana authorities surrendered a prisoner to federal authorities without demand or conditions for the surrender of the prisoner at the completion of his sentence. (In re Jones, supra.) It cannot be denied that under certain circumstances the failure of parole authorities to revoke a parole may be held to constitute a commutation or pardon of a parole violation. Of necessity, however, parole boards must be vested with a wide discretion to act in this area. Whether a parole should be revoked for a violation of its terms rests within the sound discretion of the parole board. A parole board may in its sound discretion overlook a parole violation and give the offender another chance to make good by continuing him on parole. If it does so, and the offender again violates his parole by committing another crime, the parole board is not precluded from revoking the parole on the basis of the new violation.
A case with factual circumstances quite similar to the present case is Brown v. Taylor, 287 F.2d 334 (10th Cir. 1961), cert. den. 366 U.S. 970, 6 L.Ed.2d 1259, 81 S.Ct. 1933 (1961). There the petitioner was sentenced in a federal district court on December 27, 1934, to a term of twenty-five years for armed robbery. On November 16, 1945, he was released on parole. On February 13, 1952, while still on parole, Brown was sentenced on a new state crime to the Missouri State Penitentiary. A parole violator warrant was issued and on October 6, 1952, the warrant was lodged as a detainer with the Missouri State Penitentiary. This warrant was never executed since it was withdrawn by the United States Board of Parole on March 30, 1953. The prisoner was released from the Missouri State Penitentiary on June 11, 1953, and soon after June 30, 1953, he was reinstated on the federal parole. In December of 1958, Brown was arrested in Missouri and charged with armed robbery. That same month the United States Board of Parole issued a parole violator warrant based upon the circumstances of his most recent arrest in Missouri. This latter violator’s warrant was executed on May 26, 1959. In a habeas corpus proceeding Brown contended that the United States had lost jurisdiction by withdrawing the parole violator warrant of October 6,1952, and by refusing to accept him as a parole violator at that time. The Court of Appeals held that the United States Board of Parole had lawfully revoked Brown’s parole and that he could be required to serve the balance of the term remaining when he was released from his sentence on November 16, 1945.
This is the same point that is raised by Beard on this appeal. We have concluded that the mere failure of a parole board to revoke a parole for a parole violation is not, in and of itself, a waiver, pardon, or release of the offender from his status as a parolee. The mere existence of a parole violator warrant does not amount to execution of such warrant. When a parolee is arrested on another charge, the parole board is not required to execute its warrant immediately, and the warrant may be held in abeyance until the intervening charge is disposed of. (Jefferson v. Willingham, 366 F.2d 353 [10th Cir. 1966], cert. den. 385 U.S. 1018, 17 L.Ed.2d 554, 87 S.Ct. 744 [1967].) Furthermore, incarceration in a penal institution of the United States or of another state for an offense which is the basis for the revocation of the parole, constitutes good reason for delay in execution of the revocation warrant. (Small v. Britton, 500 F.2d 299 [10th Cir. 1974].) A parole violator warrant that has been lodged with the penal institution of another jurisdiction as a detainer need not be executed until the violator has completed his sentence at that institution. At that time the parolee must be provided an adversary parole violation hearing. The parole board may, in its discretion, decide not to revoke the parole in view of the time served by the parolee in the institution of the other state. (See Moody v. Daggett, supra.)
It should be noted that an administrative remedy has been provided by the Kansas Department of Corrections where a prisoner is denied participation in certain institutional programs as a result of the existence of a detainer from another jurisdiction. Under administrative procedures § 142 of the Kansas Department of Corrections (superseded by § 217 of the Department of Corrections Policy and Procedure Manual, effective February 1, 1977), it is the declared policy of the department of corrections to “seek the permission of the jurisdiction who filed the detainer to grant minimum custody if deemed appropriate by institution officials.” We assume that this administrative procedure will be used in an appropriate case where the penal authorities have concluded that a prisoner is entitled to a reclassification to a less than maximum custody status.
The final point raised by Beard on the appeal is that the dismissal of the first fugitive warrant by the magistrate court of Leavenworth county on February 13, 1974, bars the issuance of another parole violator warrant in February 1975. We cannot agree with the petitioner’s position in this regard. In asserting that the dismissal of the original detainer is res judicata as to all subsequent detainers, the petitioner misconstrues the proper application of the doctrine of res judicata. In order to bar a subsequent action through the application of the doctrine of res judicata, the original decision must have been an adjudication “on the merits.” (Griffith v. Stout Remodeling, Inc., 219 Kan. 408, 548 P.2d 1238 [1976].) Here the dismissal of the original detainer on February 13, 1974, was not an adjudication on the merits, but simply a dismissal for failure of the Alabama authorities to appear. Such a determination in no respect adjudicated the merits of the Alabama parole violation. In addition, since the parole violation supporting the first detainer action was declared void by Alabama parole authorities, that violation is not a matter for consideration in this appeal. Even if it could be successfully argued that Alabama’s failure to zealously prosecute the first detainer should prevent them from using the same parole violation to support a second detainer, there is neither a res judicata effect nor an arguable waiver or commutation as to subsequent violations of the Alabama parole. Since the subsequent parole violator warrant is based upon the petitioner’s conviction on two counts of second-degree murder, resulting in a new violation of the Alabama parole, the present detainer has no connection with the magistrate court’s dismissal of the prior detainer. Under the circumstances of this case, each violation of parole constitutes a separate basis upon which, a parole violator warrant can be issued. The original dismissal did not have a res judicata effect upon the subsequent parole violation.
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a summary judgment entered in favor of a defendant doctor in a malpractice case. The parties signed and approved a joint stipulation of facts at a pretrial conference. On the basis of these stipulated facts and the deposition of plaintiff’s only expert medical witness, the trial court entered summary judgment. The point of error raised by plaintiff is that the trial court erred in concluding that expert medical testimony was necessary to establish medical malpractice in this case.
The following facts are taken from the stipulations of the parties in the pretrial order. Howard Webb, the plaintiff, sustained a severe laceration in his forearm about two inches above his left wrist. The injury occurred when a ramset gun he was using to tack strips on a concrete wall malfunctioned. Webb was taken to the emergency room at St. John’s Hospital in Salina, Kansas. The defendant, an orthopedic surgeon, was called to treat thé plaintiff. The surgeon discovered the flexor carpi-radialis, a tendon in the forearm, had been severed completely. The median nerve was partially severed. The defendant surgeon attended, reattached the tendon, sutured the median nerve, and treated the injury. No x-ray was taken at that time. Two and a half months later the plaintiff’s family doctor, Charles Werhan, took an x-ray of plaintiff’s left forearm. The x-ray revealed a small metal fragment in the left forearm. Two days later the defendant Lungstrum operated and removed the metal fragment. A month and three weeks later the defendant Lungstrum operated and excised a neuroma from the median nerve in plaintiff’s left forearm. (A neuroma is a benign tumor of the nerve tissue which can be caused by irritation or external trauma.)
In addition to the facts stipulated in the pretrial order the plaintiff made the following admissions:
“(a) That the only specific act of negligence which plaintiff claims defendant committed consists in the failure of the defendant to x-ray the left arm of the plaintiff to discover the presence of the metal fragment therein.
“(b) The plaintiff admits that to make a submissible case under the doctrine of res ipsa loquitor [sic] it is necessary for the plaintiff to allege and prove a specific act of negligence; plaintiff further admits that the only specific act of negligence known to plaintiff and which he alleges in support of his claim to recover under the doctrine of res ipsa loquitor [sic] is the failure of the defendant to x-ray the left forearm of plaintiff in order to discover the presence of the metal fragment therein.
“(c) The only medical experts known to plaintiff who will purportedly testify that the defendant was negligent are Dr. Charles Werhan and the defendant.”
In the deposition of Dr. Charles Werhan he described the location and extent of the laceration treated by Dr. Lungstrum, which included the repair of the severed tendon and the median nerve. After inspecting the emergency room report reflecting the initial surgery by Dr. Lungstrum, Dr. Werhan testified by deposition as follows:
“Q. Now, do I understand your testimony to be that based upon the nature of the injury and the action that he [Dr. Lungstrum] took, you observe no personal negligence from this information reflected on the ER report?
“A. No, I would say that would be routine handling of an injury of that sort.
“Q. So that if a Doctor there inspecting the wound, the condition of the tendon and the condition of the nerve and especially if he had occasion to observe it and palpate it some distance either way from the bruised area concluded that an x-ray was not indicated; would you find any fault in that final judgment?
“A. I would not.
“Q. Let me put it this way, Dr. Werhan, there was the original injury, there was the continued presence of the metal object from August 21st to November 13th, and there was the operation to remove the neuroma. Do you have an opinion based on reasonable medical certainty as to which of those three could have caused the loss of sensation in the fingers of the left hand — palm and fingers of the left hand of Mr. Webb?
“A. I would say that that is very difficult to answer. Any three could as far as losing sensation. What Mr. Webb was after mainly was relief of pain.
“Q. Right, but are you saying at this time that you could not say with scientific certainty which of those three did, in fact, cause loss of sensation of Mr. Webb?
“A. I would have to say yes.
“Q. Do you know, Dr. Werhan, of any malpractice or negligence on the part of Dr. Lungstrum in the handling and treating of Howard Webb?
“A. No, I feel he handled the case most diligently and responded well to the complication when it arose.”
After considering the stipulated facts and admissions of the plaintiff, together with the deposition of Dr. Werhan, it is apparent plaintiff proposed to offer no expert medical testimony to establish lack of reasonable care by Dr. Lungstrum.
It has long been recognized in medical malpractice actions the physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient and there is no presumption of negligence from the fact of an injury or adverse result. (Tatro v. Lueken, 212 Kan. 606, 611, 512 P.2d 529.) A physician or surgeon is expected to have and exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or in similar communities. (Chandler v. Neosho Memorial hospital, 223 Kan. 1, 3, 574 P.2d 136.)
In malpractice cases expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of a physician or surgeon in his medical diagnosis, his performance of surgical procedures and his care and treatment of patients. (Voss v. Bridwell, 188 Kan. 643, 659, 364 P.2d 955.) However, this rule does not give the members of the medical profession a monopoly on common sense, and the rule is limited to those matters clearly within the domain of medical science. When, in a given case, the diagnosis, treatment or care of a patient brings such bad results that lack of reasonable care would be apparent, using the common everyday knowledge of persons generally, such facts may be testified to by persons other than physicians. (Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636.) This is referred to as the common knowledge exception.
There is a common knowledge exception to the rule requiring expert medical testimony in malpractice cases. This common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally. (Funke v. Fieldman, 212 Kan. 524, 530, 512 P.2d 539; Hiatt v. Groce, 215 Kan. 14, 19, 523 P.2d 320.)
The question presented to this court is whether under the facts and circumstances the failure of Dr. Lungstrum to x-ray the injury falls within the common knowledge exception. If so, lack of reasonable care may be established by lay testimony and summary judgment for defendant was improper under K.S.A. 60-256(c). Several of our cases hold if a physician leaves a sponge, gauze, or instrument being used by him during a surgical procedure in the patient no expert medical testimony is necessary to establish lack of reasonable care. See Russell v. Newman, 116 Kan. 268, 226 Pac. 752; Bernsden v. Johnson, 174 Kan. 230, 255 P.2d 1033; and Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P.2d 472.
In the present case the small metal particle was from a link in the plaintiff’s watchband. When the ramset gun malfunctioned it apparently stripped the watch from plaintiff’s wrist, shattered the watchband and drove the small metal particle into the laceration where it lodged in the median nerve. The physician did not place it there. He was not aware of its presence. The question posed by the pretrial order relates to the failure of the doctor to x-ray the arm to discover the presence of the metal fragment. We have no cases in point and after reviewing cases from other jurisdictions collected in Anno: Malpractice — Expert Witness — Necessity, 81 A.L.R.2d 597, it is difficult, if not impossible, to formulate a rule as to when the failure to make use of x-ray diagnosis may be considered negligence without expert medical testimony on the standard of reasonable care. The answer must depend on the facts and circumstances of each particular case, (cf., Floyd et al. v. Walls, 26 Tenn. App. 151, 168 S.W.2d 602, and Funke v. Fieldman, supra.)
After reviewing the circumstances appearing in the facts stipulated it is apparent the plaintiff appeared in the emergency room of the hospital with a deep laceration in his arm requiring the wound to be cleansed, a tendon to be rejoined and a median nerve to be repaired. This court cannot say from the nature of the injury what procedures are ordinarily required before the surgery and repair should be undertaken. The urgency of the repair of the tendon and the median nerve may be a factor to be considered in such cases. It is apparent using hindsight that the use of x-rays or other procedures to remove the metal article would have been advisable, but we cannot say the failure to subject the patient to x-rays with the attendant delay and expense constitutes lack of reasonable care by a member of the medical profession. We feel there should be expert medical testimony to establish the standard of care in this and similar cases.
When a licensed orthopedic surgeon treats a patient in the emergency room of a hospital for a deep laceration of the forearm involving a complete severance of a tendon and partial severance of the median nerve, the failure of the surgeon to x-ray the wound in advance to discover a small metal fragment forced into the laceration at the time of the initial injury is not such an obvious omission that it falls within the common knowledge exception; in such case expert medical testimony is necessary to establish a lack of reasonable care on the part of the surgeon.
The additional question of proof of proximate cause was raised in this case. Dr. Werhan testified that he could not say with reasonable certainty whether the loss of sensation in plaintiff’s left hand was caused by the original injury, the continued pres ence of the metal object in the median nerve or the operation to remove the neuroma. However, because of the decision we have reached on the question of lack of reasonable care in failing to x-ray before surgery it is not necessary for us to determine the additional question of the necessity of expert medical testimony to prove proximate cause. Accordingly we hold summary judgment for defendant was proper.
The judgment is affirmed. | [
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Per Curiam:
This is a direct appeal by defendant from a conviction by a jury of theft of property of the value of more than $50.00, in violation of K.S.A. 21-3701, and of possessing a key or other instrument suitable for use in opening a parking meter with intent to commit a theft, in violation of K.S.A. 21-3741.
This is a companion case to State v. Edwards, 221 Kan. 405, 559 P.2d 807, and reference to that opinion is made for an initial statement of the facts in this case.
The following additional facts are necessary to a determination of appellant’s first point on appeal.
On July 14, 1975, appellant was arraigned in Saline County District Court and released on bond. The case was initially set for trial on August 21, 1975, but was continued to September 22, 1975, at the request of defense counsel. On September 5, 1975, appellant was taken into custody in Sedgwick County, Kansas, on other charges. Despite numerous attempts by the Saline County authorities, Sedgwick County authorities would not release the defendant for trial in Saline County until completion of the pending action in Sedgwick County. Appellant remained in custody in Sedgwick County until January 14, 1976, when he was turned over to Saline County authorities. Two days later he filed a motion for discharge alleging denial of a speedy trial. The motion was overruled. Trial was held on January 19, 1976, and this appeal followed.
Appellant’s first point on appeal is that his motion for discharge because of failure to receive a speedy trial should have been sustained.
Section 10 of the Bill of Rights of the Kansas Constitution guarantees the accused a speedy trial and this right is defined by K.S.A. 22-3402.
The initial continuance from August 21, 1975 to September 22, 1975, was at the request of defendant’s counsel and is chargeable to the appellant. The subsequent delay to January 14, 1976 was due to appellant’s incarceration in the Sedgwick County jail on charges not .related to the case in question and therefore is also chargeable to appellant. As the defendant was tried well within the time limits set forth in K.S.A. 22-3402, the delay in trial did not deprive appellant of his right to a speedy trial and the motion for discharge was properly overruled. (State v. Lewis, 220 Kan. 791, 556 P.2d 888 [1976] and cases cited therein.)
Appellant’s second point on appeal is that the verdict of the jury finding appellant guilty of theft was not supported by the evidence in that the evidence failed to show appellant’s control over property of a value of more than $50.00 belonging to the City of Salina. As the factual situation and evidence adduced at trial are the same as in State v. Edwards, supra, where this point was also raised, we do not deem it necessary to repeat what was said in that opinion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
We are called upon to determine whether the trial court erred in excluding the testimony of plaintiff’s expert medical witnesses in this case of alleged medical malpractice. We conclude that the court did err, and we reverse.
The minor plaintiff, Angela Dawn Chandler, was born prematurely in the Neosho Memorial Hospital. Alexander Mih was the attending physician. Plaintiff claims that the defendants, Dr. Mih and the hospital, negligently caused excessive amounts of oxygen to be continuously administered to her over an extended period of time, causing her to be blind.
During trial, plaintiff called two physicians as expert witnesses. Both were certified pediatricians with wide experience. One was a professor of pediatrics at the University of California at Los Angeles, the other at the University of Illinois. The trial judge found both witnesses to be well qualified.
Neither witness had practiced medicine in Chanute, in a community of similar size, or in a nearby community. One testified that through his study of publications of the American Medical Society and the journals published for use by general practitioners, and through his participation in medical seminars, he knew the degree of learning and skill ordinarily possessed by general medical practitioners in Chanute and similar communities; he was aware of the staff, the facilities and the equipment available at Chanute; and in his opinion the standard of care for premature infants was the same in Chanute as it is in all parts of the United States.
A proffer was made pursuant to K.S.A. 60-243 (c) of the witness’s opinion testimony. He was prepared to testify that in his opinion the standards for the administration of supplemental oxygen to premature infants is the same for all members of the medical profession and in all hospitals throughout the United States; that both defendants deviated from those standards; and that the departure of Dr. Mih from medical standards, and of the hospital from standard hospital procedures, was the direct cause of Angela Chandler’s blindness.
The trial court held as a matter of law that the standards of care for the treatment of premature infants could not be the same nationwide; that the standards must be different in Chanute and similar communities from what the standards are elsewhere in the United States; and that since the witness had no experience in Chanute or in any similar community, he was not qualified to express his proffered opinions. A like ruling was made as to the second expert. At the close of plaintiff’s evidence, the trial court held that plaintiff had failed to establish negligence and causation by expert medical testimony, which was required under the circumstances (see Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539), and directed a verdict for the defendants.
Our rules are familiar, and have been often stated. A physician or surgeon is expected to have and to exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities; similarly, a hospital is required to exercise that degree of care, skill and diligence used by hospitals generally in the community or in similar communities under like circumstances. Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013, and cases cited therein.
We have never adhered to the “strict locality rule,” although our early cases recognized that those practicing medicine in rural communities might be subject to less stringent or different standards than those practicing in populous urban centers. See Tefft v. Wilcox, 6 Kan. 46, decided more than a century ago.
Justice Kaul, speaking recently for a unanimous court in Avey, supra, said:
“It is quite clear from a review of the cases cited that this court, by including the phrase ‘or similar communities, ’ has not given the restrictive application to the locality rule, such as was applied in some jurisdictions, in medical malpractice cases.
“In our Judgment the need for emphasis on locality no longer exists. Even though in some cases allowances must be made in defining similar localities by the recognition of such factors as population, the availability of medical facilities, medical equipment, etc., we believe the knowledge of similar conditions is the essential element rather than geographical proximity. We do not mean to say that the nature of the locality of a hospital may be totally disregarded but in our judgment geographic proximity is only one factor to be considered in determining similarity.
“The standardization of hospital and nursing procedures, brought about by the Kansas statutes, regulations promulgated thereunder, and the standards of the joint commission on hospital accreditation, serve to deemphasize the strict application of geographic locality. The standards, and regulations referred to, recognize in many instances the differences in hospitals with respect to size and services offered.
“We hold, therefore, that, where a proper foundation of knowledge of similarity of conditions is established, the testimony of an otherwise qualified expert is admissible as evidence, tending to show the standards of care required of a hospital in a similar community involving a case under like circumstances. . . .” (Emphasis supplied.) (pp. 696, 697-698.)
“Locality” has to do with population, location, hospital and laboratory facilities, staff, and the medical practitioners and specialists available. It is simply one of the factors to be considered. A small hospital would not ordinarily have or be expected to provide specialized equipment and facilities necessary for the treatment of diseases or conditions which are rarely or infrequently found; on the other hand, it would be expected to have that basic equipment essential for the care and treatment of those diseases and conditions regularly encountered among its patients.
Advances in travel, communication, and publication over the past century have markedly reduced the gap between urban and rural practitioners in all professions. Medical and other professional journals are widely and promptly distributed. Seminars, attended by practicing members of the professions from communities of all sizes, are not only commonplace but are regarded by most professionals as essential to the continuing learning process required.
No doubt many areas of medical practice and hospital care are now standard throughout the United States. In yet other areas of medical practice and hospital care, procedures and treatment may differ because of local preference and experience, because of altitude and climate, or because of the availability or lack of equipment, facilities, and staff. We are not, therefore, prepared to say that national standards apply in every area of health care; but we recognize that some standards may well be of universal application.
The standard of medical and hospital care which is to be applied in each case is not a rule of law, but a matter to be established by the testimony of competent medical experts. An expert may acquire knowledge of the applicable standard in the same manner that he acquires his other expert knowledge— through practical experience, formal training, reading, and study, or through a combination of those. See Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P.2d 518; and Grohusky v. Atlas Assurance Co., 195 Kan. 626, 408 P.2d 697.
The witnesses here, well qualified medical experts, claimed knowledge of the- applicable standards of care, and they gave a reasonable explanation as to how such knowledge was acquired. We recognize the rule that the determination of the qualifications of a witness to testify as an expert is a matter left to the sound discretion of the trial court, and that discretionary rulings are not reviewable in the absence of abuse of discretion or error of law. Avey v. St. Francis Hospital & School of Nursing, supra. Here, however, the trial court erred as a matter of law, and not as a matter of discretion, when the court ruled that the applicable standard could not be the same in Chanute as it is elsewhere in the United States. We conclude that the proffered expert testimony should have been received and admitted into evidence.
One other matter deserves attention. Appellees contend that the expert testimony was inadmissible because the background facts upon which it was based were neither perceived by or personally known by the witness, nor “made known to the witness at the hearing,” as required by K.S.A. 60-456 (b). Appellees argue that the only way for an expert witness (who was not personally present during the occurrence) to acquire background information and data upon which to base opinion testimony under this statute is for the witness to attend throughout the entire trial and to hear all the testimony and examine all exhibits admitted, so that the facts are perceived by him at the hearing. We do not so construe the statute.
K.S.A. 60-456 (b) reads as follows:
“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.”
Where the facts and data are not perceived by or personally known by the witness, they must be supplied to the witness so that he is aware of them at the time he testifies. This may be done by having him attend throughout the trial; but it is certainly much more common, and just as proper, for counsel to provide the witness with the factual background prior to the time he expresses his opinion. The facts made known to him and upon which his opinion is based should, of course, be in evidence; as we said in Casey v. Phillips Pipeline Co., supra, p. 546, “made known” as used in K.S.A. 60-456 (b) refers to facts put in evidence. Before stating his opinion, the witness may be examined concerning the data upon which the opinion is founded, if the judge so requires, and upon cross-examination the witness may be required to state the data which he has considered. K.S.A. 60-457, 458.
The witnesses here had not been inside the hospital. We suggest that where available hospital facilities and equipment are factors of some importance, the better practice would be to have the witnesses tour that facility before trial.
For the reasons stated, the judgment of the district court excluding the testimony of plaintiff’s expert medical witnesses and directing a verdict at the close of plaintiff’s evidence is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict which found Richard M. McCowan (defendant-appellant) guilty of felony murder (K.S.A. 21-3401). Numerous points for reversal are asserted on appeal.
The appellant is a resident of Wichita County, Kansas. On December 15, 1975, he pled guilty to a charge of unlawful possession of a firearm in violation of K.S.A. 21-4204(1)(h), a class D felony. On April 12, 1976, he was placed on probation in connection with this crime. The appellant was then advised by James Robison, his probation officer, on April 21 of the terms of his probation and his parole schedule.
On May 19, 1976, the appellant failed to keep his scheduled appointment with Mr. Robison. He testified he was in California with his wife visiting his sick mother-in-law. He stated he tried on at least three different occasions to contact Mr. Robison in order to tell him of his whereabouts.
Thereafter on May 24,1976, Mr. Robison issued a “pick-up and detain” order pursuant to K.S.A. 22-3716 against the appellant for parole violations. The alleged violations were failure to keep a scheduled appointment and traveling outside a fifty-mile radius of Leoti, Kansas.
Mr. Robison subsequently requested a cancellation of this detainer order on May 25, 1976, at approximately 3:43 p.m. In its place he requested a bench warrant be issued for apprehension of the appellant. During the interim between cancellation of the “pick-up and detain” order and the issuance of the bench warrant, the death occurred.
Carl A. Simons, chief of police of the Leoti, Kansas, Police Department, stopped the appellant approximately one and one-half miles north of the city limits of Leoti. The appellant was traveling with his four children who ranged in ages from several months to twelve years. Chief Simons, with his service revolver drawn, ordered the appellant from his car. At this time Chief Simons had not received any notice of the cancellation of the detainer order. He then arrested the appellant for violating the conditions of his parole, advised the appellant of his rights, and handcuffed the appellant behind his back.
The appellant testified he was fearful for his own personal safety and his children were frightened. He stated Chief Simons struck him with a blunt object on the back of the head after being handcuffed.
Apparently the appellant requested permission to return to his car to quiet his children and to reassure them, but Chief Simons refused the request. While Chief Simons was making a radio transmission from his patrol car, however, the appellant returned to his car. With the help of his oldest daughter he took a .357 Magnum revolver from the glove compartment. With the gun in his hands, which were still handcuffed behind his back, he returned to the patrol car to order Chief Simons to remove the handcuffs. A scuffle ensued and two shots fired by the appellant struck and killed Chief Simons instantly.
The appellant instructed his twelve-year-old daughter to drive to a nearby farm building where he was able to sever the handcuff chain through the use of a grinding machine. He then drove to a friend’s home where he left his children and he proceeded to flee to the State of Colorado.
Upon discovery of the deceased, Lloyd Neyer, the sheriff of Wichita County, issued a pick-up order for the appellant. He also ordered the appellant’s wife, Pam McCowan, be placed in custody at the sheriff’s office.
Several hours later the appellant was arrested by Colorado authorities and advised of his rights. He waived extradition after Colorado officials told him his wife was being held by Kansas authorities.
Agents from the Kansas Bureau of Investigation arrived in Eads, Colorado, on the morning of May 26, 1976. They had a warrant for the appellant’s arrest charging him with first degree murder under the felony murder provision of K.S.A. 21-3401. The underlying felony charged was aggravated escape from custody (K.S.A. 21-3810[h]). After being advised of his rights, the appellant was questioned by the agents. They returned to Kansas with the appellant in their custody later in the day.
The agents did not proceed directly to the sheriff’s office in Wichita County. After a lengthy drive through northwestern Kansas, they placed the appellant in the custody of the sheriff in Scott County, Kansas. The following morning, approximately 34 hours after his original detainment in Colorado, the appellant was first brought before a judge. He was formally advised of his rights and counsel was appointed for him.
The appellant’s trial eventually commenced, after a change in venue, on January 3, 1977, in the Saline County District Court. The appellant was found guilty of murder in the first degree under the felony murder provisions of the statute and was sentenced to life imprisonment. His motion for a new trial was overruled and appeal was duly perfected.
On appeal the appellant asks this court to reverse and remand his case for a new trial because he claims his conviction cannot stand under the complaint as written. We agree.
The appellant was charged with first degree murder under the felony murder provisions of K.S.A. 21-3401. Both the complaint anci information filed by the state charge the appellant with the following:
“. . . UNLAWFULLY, FELONIOUSLY, willfully and maliciously kill and murder a certain human being, to-wit: Carl A. Simons, by shooting said Carl A. Simons with a certain gun or pistol, a more complete description of which is not known and is therefore not set forth herein, while in the perpetration or attempt to perpetrate the crime of aggravated escape from custody, a felony as defined by K.S.A. 21-3810(b).”
The underlying felony charged by the state was aggravated escape from custody. K.S.A. 21-3810 provides:
“Aggravated escape from custody is:
“(a) Escaping while held in lawful custody upon a charge or conviction of felony; or
“(b) Escaping while held in custody on a charge or conviction of any crime when such escape is effected or facilitated by the use of violence or the threat of violence against any person.”
This statute was construed in State v. Pruett, 213 Kan. 41, 515 P.2d 1051. There the defendant escaped from lawful custody before a written charge was filed. Our court held:
“The escape statutes, K.S.A. 1971 Supp. 21-3809 and 21-3810, are applicable only where a person escapes from lawful custody while being held on a written charge contained in a complaint, information or indictment.” (Syl. 6.)
Here, no complaint, information or indictment had been filed by the state at the time the appellant was arrested by the deceased.
Moreover, in State v. Pruett, supra, our court observed the state is not without a remedy when the defendant escapes from custody prior to the filing of a formal written complaint. We held:
“. . . K.S.A. 1971 Supp. 21-3808, . . . which provides for the offense of obstructing legal process or official duty is broad enough to cover cases where a defendant escapes from custody prior to the filing of a formal written complaint, information or indictment. . . .” (p. 50.)
K.S.A. 21-3808 reads in part as follows:
“Obstructing legal process or official duty is knowingly and willfully obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.” (Emphasis added.)
A careful examination of this statute reveals it is inapplicable to the case at bar. First the deceased could not serve or execute or attempt to serve or execute any writ, warrant, process or order because the detainer order had been cancelled. Secondly, the deceased was not acting in the discharge of any official duty but rather as a private citizen when he arrested the appellant outside his territorial jurisdiction.
Thus, the use of K.S.A. 21-3808 here is foreclosed by the language of the statute itself. Similarly, the use of K.S.A. 21-3810(h) as the underlying felony is precluded in this case because no written complaint, information or indictment had been filed when Carl Simons, the deceased, attempted to arrest the appellant. Therefore, we hold the charge of aggravated escape from custody under K.S.A. 21-3810(b) as the underlying felony in the murder filed in the complaint and information pursuant to K.S.A. 21-3401 was improper under the facts presented here and must be reversed.
In view of our holding on this point, it is unnecessary to rule on the numerous other points asserted on appeal.
Accordingly, the judgment is reversed and the case is remanded for a new trial. | [
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Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Edward S. Dunn, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Edward S. Dunn, Holton, Kansas, was, by the United States District Court for the District of Kansas, found guilty of willfully attempting to evade and defeat certain income tax due and owing by him to the United States of America for the calendar year 1970 by filing a false and fraudulent income tax return in violation of DR 1-102 (A) (6) of the Code of Professional Responsibility (214 Kan. lxxv), which prohibits a lawyer from engaging in any conduct that adversely reflects on his fitness to practice law, and
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said Edward S. Dunn be disciplined by “Suspension” from the practice of law, as provided by Rule 203 (a) (2) (220 Kan. xxviii [Adv. Sheet No. 2]), for a period not less than the term of his probation in the United States District Court, and
Whereas, In accordance with Rule 213 (c) (220 Kan. xxxiii [Adv. Sheet No. 2]), a copy of the report, findings and recommendations of the Board was mailed to respondent on June 20, 1977, along with a citation directing him to file with the court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
Whereas, Under date of July 11, 1977, respondent filed his response to the citation, stating that he did not wish to file exceptions to the report, findings and recommendations, and
Whereas, On the 23rd day of September, 1977, after notice to respondent, a hearing was held before this Court for the purpose of reviewing the action of the State Board of Law Examiners and determining the nature of the discipline to be assessed against respondent. The State of Kansas appeared by Philip A. Harley, assistant attorney general, and respondent appeared in person and by his attorney, Charles D. McAtee, and
Whereas, Upon consideration of the record and arguments made by counsel the Court accepts the report and findings of the State Board of Law Examiners, but modifies the recommended discipline. The Court finds that respondent should be disciplined by indefinite suspension rather than for a period of not less than the term of his probation in the United States District Court as recommended by the Board.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Edward S. Dunn be and he is hereby disciplined by suspension from the practice of law for an indefinite period, as of the 23rd day of September, 1977, and that he pay the costs of the proceeding. It is further ordered that this Order of Suspension be published in the official Kansas Reports.
By Order of the Court, dated this 23rd day of September, 1977. | [
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Per Curiam:
This is an appeal in a criminal action from a jury verdict which found Jessie B. Martinez (defendant-appellant) guilty of one count of first degree murder (K.S.A. 21-3401).
Four grounds for reversal are asserted on appeal. First the appellant contends the trial court erred in admitting his exculpatory statement without a Jackson v. Denno hearing. Next he claims the trial court erred in admitting color photographic slides of the deceased victim because they were gruesome. The appellant also challenges the sufficiency of the evidence to sustain his conviction of first degree murder. Finally he asserts the trial court erred in its instructions to the jury regarding premeditation.
Shortly after he was given the Miranda warning at police headquarters the appellant made an exculpatory statement to the police. The state introduced the statement for impeachment purposes, after the appellant took the stand and told a different story at his trial. The appellant now contends it was error for the trial court to admit this statement without holding a Jackson v. Denno hearing. This argument lacks merit for several reasons. The record reflects that no contemporaneous objection to the statement was made at the trial. The contemporaneous objection rule requires timely and specific objection to the admission of the evidence if its admissibility is to be considered on appeal. (State v. Holloway, 219 Kan. 245, 547 P.2d 741; State v. Shepherd, 213 Kan. 498, 516 P.2d 945; and Baker v. State, 204 Kan. 607, 464 P.2d 212.) Secondly, the statement made by the appellant was an exculpatory statement and did not constitute a confession of guilt. The appellant was called by telephone and went to the police station on his own volition. He voluntarily gave the statement at a time when he was neither a suspect nor in custody. Furthermore, the statement was used for impeachment purposes, and it was not presented as substantive evidence. (State v. Andrews, 218 Kan. 156, 542 P.2d 325; and State v. Osbey, 213 Kan. 564, 517 P.2d 141.)
The appellant next contends the trial court erred in admitting color photographic slides of the deceased because the treating physician did not refer to them in his testimony. It is well-established law that photographs are not rendered inadmissible merely because they are shocking or gruesome if they are relevant and material to the matters at issue. (See State v. Smolin, 221 Kan. 149, 557 P.2d 1241 and cases cited therein.) Two of the slides here depict an injury to the deceased’s head and the third slide depicts an apparent knife wound to the deceased’s arm. Although the treating physician did not refer to these slides, testimony elicited from other witnesses revealed the appellant chased the deceased slashing at him and brandishing after him with a knife. The purpose of the state in presenting the slides was to corroborate the testimony of the state’s witnesses. This countered the appellant’s attempt to establish self-defense. We have viewed the slides and find no prejudicial error in their admission. They were relevant and material to support the evidence presented by the state that the deceased did, in fact, receive other wounds on his body.
The appellant also challenges the sufficiency of the evidence of first degree murder. He argues there was no showing of premeditation or deliberation to commit murder. The record reflects the state’s evidence included a witness who testified the appellant stated he would “get” the deceased if he had the chance. Furthermore, other witnesses said the appellant attacked the deceased with a knife without provocation. It is not the function of this court to reweigh the evidence on appeal. (See State v. Holt, 221 Kan. 696, 561 P.2d 435 and cases cited therein.) Under all the facts and circumstances a jury could reasonably have drawn an inference of premeditation to establish first degree murder.
Finally, the appellant contends the trial court erred in its instruction on premeditation. The court instructed premeditation means “thought of beforehand for any length of time sufficient to form an intent to act, however short.” (Emphasis added.) PIK, Criminal, §56.04 provides:
“(b) Deliberately and with premeditation means to have thought over the matter beforehand.”
The record clearly reflects abundant evidence to show the appellant acted with deliberation and premeditation. Under either the appellant’s version of the facts or the version given by the witnesses, the appellant had time to premedítate. The appellant went to his car (after he contends he was attacked) in order to get a knife and returned to the parking lot before the stabbing occurred. Thus, an appreciable amount of time did elapse. While we do not approve the supplemental instruction given by the trial court, under the facts presented here no prejudicial error is shown.
The judgment of the lower court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the two defendants, James Johnson, Jr. and Phillip Taylor, were jointly tried and convicted of aggravated robbery (K.S.A. 21-3427). The evidence was undisputed that a Vickers Service Station in Kansas City, Kansas, was robbed by two armed black males on the morning of November 11,1975. The sole issue in the case was the identity of the defendants as the robbers who committed the offense. At the time the robbery occurred, the only person present on the premises to identify the robbers was John Smith, the operator of the filling station. His identification of the defendants as the robbers was subject to question. It was vigorously contested by the defendants. Each of the defendants had alibi witnesses. They testified that the defendants were at another place at the time the robbery occurred. Following their conviction, Johnson and Taylor appealed to this court claiming trial errors.
Both defendants have raised the same basic points on the appeal. Both question the sufficiency of the evidence to sustain their convictions. On this point the record shows that at the trial the victim, John Smith, identified the defendants as the individuals who robbed him on November 11,1975. Such testimony was sufficient to permit the case to be submitted to the jury.
The first point raised on the appeal by the defendants is that the trial court improperly permitted the prosecutor repeatedly to get before the jury the fact that the defendants remained silent and refused to make a statement at the time they were arrested. The defendants contend that such conduct by the prosecutor was highly prejudicial for two reasons: (1) It permitted the jury to draw an inference that the defendants were guilty because they relied on their constitutional right of silence, and (2) it enabled the prosecution to use for impeachment purposes the defendants’ silence at the time of their arrest and after they had received Miranda warnings, in violation of the due process clause of the Fourteenth Amendment. To bring this issue into proper focus, it is necessary to examine the record to determine what occurred at the trial. The matter of the defendants’ silence at the time of arrest was first brought up during the direct examination of Detective Al Sanchez in the state’s case in chief. Sanchez testified that on November 11th, the day of the robbery, he had a conversation with defendant Johnson, who was then in custody. He advised Johnson of his rights and asked if Johnson wanted to sign a waiver form and talk to Sanchez about the incident. Johnson stated he did not want to sign the form waiving his rights. The unsigned waiver of rights form was then marked as state’s exhibit No. 3 and identified by Sanchez. Following this the prosecutor asked Sanchez if the defendant Johnson had refused to sign the waiver of rights and Sanchez answered in the affirmative. At the close of the state’s evidence the prosecutor offered into evidence exhibit No. 3, the unsigned waiver, and the trial court admitted the exhibit in evidence over defendant’s objection. At that time the trial judge indicated to counsel that he had a question as to the propriety of admitting the unsigned waiver form into evidence.
After the state rested, the defendant Johnson took the stand in his defense and testified that he told Sanchez he would not sign the waiver of rights or make a statement unless his mother was there and that Sanchez had refused to permit him to call his mother. Johnson then testified that he had told Sanchez where he had been at the time of the robbery. On cross-examination of Johnson the prosecutor directed Johnson’s attention to the unsigned waiver form and asked Johnson if this was the form “you did not want to sign.” Johnson’s counsel objected to any further inquiry into the unsigned waiver because it was clearly for the purpose of prejudicing the jury because of the defendant’s refusal to sign the same. The court let the question and answer stand. Immediately thereafter, the prosecutor again called Johnson’s attention to the unsigned waiver and asked Johnson if Detective Sanchez had read it to him, to which question Johnson testified that he had.
As to defendant Phillip Taylor, the prosecutor questioned Detective Sanchez in regard to Taylor’s refusal to make a statement following Taylor’s signing a waiver of rights form. At the request of the prosecutor, Sanchez identified state’s exhibit No. 4, the waiver of rights form signed by Taylor. Sanchez then testified as to Taylor’s statements after the form was signed as follows:
“Q Did you talk with him afterwards?
“A After he signed that, I asked him if he knew anything of the robbery and he denied any knowledge of the armed robbery.
“Q Did you ask him where he was on the morning of November 11th?
“A No, sir, he would not give any information, he just said he knew nothing of it and that was it. After signing the waiver he was very uncooperative, and he was then taken back to the jail.
“Q The only report or information he gave to you about it was, T wasn’t there’?
“A He didn’t say he wasn’t there, he only said that he knew nothing about it.” (Emphasis supplied.)
In his final argument the prosecutor made the following observations:
“. • • I asked each one of their witnesses, ‘Did you ever make a statement? Did you ever put anything in writing? Did you ever tell the police? When was the first time you talked to anybody about this?’, and you will recall their answers— they talked to Mr. Hills (defense counsel) about a week ago. . . .”
Although the record indicates that the prosecutor was only referring to the defense alibi witnesses, the defendants insist that the reference could be construed as referring to Johnson’s and Taylor’s silence after their arrest. The prosecutor’s use of the word “witnesses” could be interpreted as including the defendants, since each defendant had testified for the defense. It also should be noted that the trial court in its instructions told the jury that “no inference of guilt may be drawn from a defendant’s failure to sign a waiver of rights form or give a statement to the police.”
On the entire record we are convinced that the repeated reference by the prosecutor in the trial to the fact that defendant Johnson had failed to sign a waiver of rights form and make a statement and that the defendant Taylor, although signing a waiver, was thereafter uncooperative, was prejudicial and requires the granting of a new trial to the defendants. It is reversible error to permit a jury to draw an inference adverse to one accused of crime from his reliance upon his constitutional right to silence. (State v. Bowman, 204 Kan. 234, 461 P.2d 735; State v. Dearman, 198 Kan. 44, 422 P.2d 573.) In Bowman this court declared:
“In State v. Dearman, 198 Kan. 44, 422 P.2d 573, we stated at page 46 of the opinion:
“ ‘Thus, when the appellant was placed under arrest by the officers in this case and said he wanted to see a lawyer, he was exercising a federal constitutional right. At this juncture he also had the constitutional right to remain silent.
“ . . A similar case was before the United States Court of Appeals, First Circuit, in Fagundes v. United States, 340 F.2d 673 (1965). There the court said:
“ ‘ . . Thus when Fagundes said when he was arrested and handcuffed that he wanted to see a lawyer he was exercising a federal constitutional right. And certainly at that juncture he had the constitutional right to keep silent . . . His assertion of one constitutional right, his right to counsel, and his reliance upon another constitutional right, his right to remain silent when charged with crime, we think cannot be used against him substantively as an admission of guilt, for to do so would be to render the constitutional rights mere empty formalities devoid of practical substance. . . (p. 677.)
“ ‘We think the foregoing decision is persuasive and hold that evidence disclosing that one charged with crime has asserted his constitutional right to counsel, and his constitutional right to remain silent, cannot be used against him substantively as an admission of guilt.’
“The federal decisions are to the effect that the prosecution may not use at a trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at police custodial interrogation. (Miranda v. Arizona, 384 U.S. 436, 16 L. ed 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974.)” (pp. 235-236.)
In this case the trial court over defendants’ objection permitted the state to inject again and again before the jury the fact that the defendant Johnson had refused to sign a waiver of rights form and that the defendant Taylor, although signing such a form, was thereafter uncooperative in denying that he had any knowledge of the robbery. This evidence, combined with the prosecutor’s argument, in our judgment permitted the jury to draw the inference that the defendants were probably guilty because they chose to remain silent at the time of their arrest. The defendants are entitled to a new trial.
As their second point on the appeal both defendants contend that the trial court erred in refusing to require Detective Sanchez to produce for defense counsels’ examination certain field notes which contained statements of the state’s witnesses taken shortly after the robbery occurred. At the pretrial conference the prosecution in good faith informed the court and defense counsel that the state had disclosed all evidence favorable to the defendants.
At the trial on cross-examination Sanchez testified that he had interviewed the state’s witnesses and that he had written his field notes on a manila pad which he had in his office. At that point counsel for the defendants asked the court for a short recess to allow Detective Sanchez to obtain his field notes. The prosecution objected to the request, taking the position that defense counsel were| not entitled to examine the field notes. The trial court then asked Detective Sanchez whether he would mind getting the field notes. The witness replied that he had no objection. After some discussion, the trial court stated that it would not require Mr. Sanchez to go to this effort unless defense counsel had something specific in mind. At this point defense counsel pointed out the conflict in the testimony as to what the state’s witnesses had told Detective Sanchez and argued that the officer’s field notes could assist in the discovery of the truth. The trial court then denied defense counsels’ request for the field notes. In further cross-examination Detective Sanchez testified that he had not disclosed on his final written report the name and address of a witness who had observed the robbery taking place from the adjoining premises. Sanchez’s explanation was that the witness was a city employee who said he could not identify anybody and did not want to become involved. For that reason, Sanchez stated that he did not mention the witness in the final report given to the prosecution and to the attorneys for the defendants, although the name and address of the witness were included in his field notes. Neither the prosecutor nor defense counsel had notice of the undisclosed witness or of the detective’s field notes until Detective Sanchez took the stand.
We have concluded that under the circumstances of this case the trial court committed reversible error in refusing to require Detective Sanchez to produce his field notes. In State v. Humphrey, 217 Kan. 352, 537 P.2d 155, we held that the discov ery provisions under the criminal code should be liberally construed and that the scope of discovery should be as full and complete as is reasonably possible under the circumstances. The state has an obligation to disclose evidence favorable to the defendant. (United States v. Agurs, 427 U.S. 97, 112, 49 L.Ed.2d 342, 96 S.Ct. 2392 [1976]; Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 [1963].) We have no way of knowing whether the testimony of the undisclosed witness who observed the robbery would have been favorable or unfavorable to the defendants. It cannot be denied, however, that Detective Sanchez, having the name and address of a witness to the robbery, was obligated to disclose to defense counsel the existence and identity of that witness. The fact that the prosecuting attorney had no knowledge of the witness is not controlling. The obligation of the state to disclose evidence to the defense extends to evidence in the possession of the police officers as well as to evidence in the files of the prosecutor. (State v. Humphrey, supra.)
After Detective Sanchez testified either at the preliminary hearing or at the trial, K.S.A. 22-3213 came into play and the defendants were entitled to the detective’s report and field notes, if available.
In State v. Stafford, 213 Kan. 152, 515 P.2d 769, the court in syllabus 2 stated:
“A police officer called by the state to testify on direct examination as to facts revealed by his investigation of an alleged crime is a witness within the meaning of K.S.A. 1972 Supp. 22-3213 (2) and the defendant is entitled to the production of any statement or report made by the officer in the possession of the prosecution relating to the subject matter of the witness’ testimony.”
Another case in point is State v. Mans, 213 Kan. 36, 515 P.2d 810. Mans involved the “field notes” made by a police officer during the course of an investigation. The police officer was called to the stand and, following direct examination, defense counsel requested that he be allowed to examine these field notes prior to his cross-examination of the officer. The trial court denied his request to see the field notes. This was held to be error.
In the present case the refusal of the trial court to require production of Detective Sanchez’s field notes cannot be considered as harmless error. At the time of the trial Detective Sanchez was testifying from his final written report prepared the day after the robbery. The final report was based upon his scribbled field notes made on a yellow note pad the day before. Inconsistencies in his report had already appeared in the testimony at the time the existence of his field notes was discovered. There were inconsistencies in the testimony as to the height and weight of the robbers, as to the clothing worn by the robbers during the robbery, and as to the names of persons who had occupied an automobile which the state sought to connect with the robbers. In this case the field notes of Detective Sanchez would have been very helpful in assisting the jury in arriving at the truth and the production of the field notes might well have affected the verdict.
In view of the disposition of the two points discussed above, it is unnecessary to consider the other point raised on the appeal.
The judgment of the district court is reversed and the case is remanded to the district court with directions to grant the defendants a new trial. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal from convictions of theft (K.S.A. 21-3701) and obstructing official duty (K.S.A. 21-3808). Clyde Ralph, Joseph Teal, and defendant were arrested for stealing a truck containing quartered beef and attempting to sell the beef to undercover officers.
Defendant became acquainted with Clyde Ralph and Kent Green while all were guests of the state at the Kansas State Penitentiary as a result of previous crimes. After release in 1972, Green again ran afoul of the law and was arrested on state and federal charges in June, 1973. Hoping for leniency he became an operative for both state and federal authorities in early July, 1973. On July 18, 1973, Green reestablished contact with another Lansing alumnus, Quay Douglas Worth. (For a complete detail of that account, see State v. Worth, 217 Kan. 393, 537 P.2d 191, cert. denied 423 U.S. 1057, 46 L.Ed.2d 647, 96 S.Ct. 792.) The two of them went to the Seventh Step Foundation in Wichita on July 20, where they met Ralph, and Ralph consummated a firearm transaction with Worth. Green did not hear from Ralph again until the latter part of July when Ralph called him at his home in Burns, Kansas. At that time Ralph asked Green to stop and see him the next time he was in Wichita.
In the first part of August, Green went to Wichita to see Ralph at Worth’s home. Over lunch the three discussed how they might make money by committing some burglaries and thefts. About August 20, Ralph, his wife and child, and defendant went to Burns to see Green. Green drove Ralph and defendant past banks in Burns, Florence and Cedarvale. Ralph told Green that since defendant worked at a packing plant they could steal a truckload of meat. Green contacted Carl Arbogast of the K.B.I. and told him what had transpired. The next day Ralph returned to Burns to inspect the inside of the bank.
On August 22, Ralph telephoned Green and told him the bank at Burns was going to be hit that night. Green called the K.B.I. and surveillance was set up. That evening Ralph, his wife, Worth, a man named Perez, and defendant went to Burns. Ralph unloaded burglary tools and took them into Green’s house. Ralph and Perez left to reconnoiter the bank. They apparently spotted the surveillance and canceled their plan, returning to Wichita. The men feared they would be spotted if they carried the tools back to the car, so they left them with Green. The next day Ralph called Green and asked him to bring the tools to Wichita.
On August 26, Green took the tools to Wichita. While there Ralph again stated that they could get some processed meat if Green could find a buyer for it. Ralph said the meat was cut, frozen and packaged in ten-pound boxes. He told Green he could get a 40,000-pound load and would sell it for $20,000. Green again contacted Arbogast and Arbogast called then Attorney General Vern Miller, who obtained the “buy money.” On August 27, Green told Ralph he had found a buyer.
The next day arrangements were made to complete the transaction. Vern Miller selected a roadside park in Schulte, Kansas, as the place to meet. When Green called Ralph to tell him the deal was on, Ralph told him the meat would not be cut and packaged, but instead would be swinging and uncut at $16,000 a truckload. Ralph also told Green he wanted to meet the buyer and verify he had the money.
It was decided that Michael Gammage of the Alcohol, Tobacco and Firearms Bureau of the United States Treasury Department would pose as the buyer. Green and Gammage, with money in hand, drove to Ralph’s home. Vern Miller was hiding in the trunk of the car. Upon their arrival Ralph emerged from his house, got into the car with them, and counted the money while Green drove around the block. Ralph was satisfied that arrangements were satisfactory and told them final details would be worked out later that evening. At about 6:00 p.m. Green called Ralph and told him to meet them at the roadside park in Schulte at 10:00 p.m. Attorney General Miller had the roadside park surrounded with officers.
At approximately 10:00 p.m., Green, Arbogast and Gammage arrived at the park with Miller in the trunk of the car. Three-quarters of an hour later a semi-tractor and refrigerated trailer drove past the park followed by a car similar to one in which Ralph said he would be riding. The driver sounded the car horn twice as he drove by. A few minutes later the car returned, drove into the park, faced the direction the truck had gone and blinked its lights twice. The truck soon pulled into the park and stopped near the car.
Agent Gammage walked to the rear of the trailer, opened the doors, shined a light inside and observed a large quantity of swinging uncut beef. Ralph stated he could only get half a load and the price would be $8,000. Gammage walked toward the front of the truck where he was met by defendant, who asked if everything was all right. Gammage replied, “Yes,” and the two returned to the rear of the truck. Defendant closed the trailer doors and wiped the handles for fingerprints. Gammage and defendant then walked to the car where Ralph was sitting. Gammage indicated he was satisfied and ready to pay. Ralph told him to pay defendant. Defendant and Gammage walked to Green’s car to get the envelope containing $8,000 from Arbogast, who was standing beside the car. Defendant took the envelope and said he did not need to count the money. As he turned to leave, Gammage took defendant by the elbow and said, “Don’t do anything silly, you are under arrest.” As defendant turned and ran Arbogast yelled, “Police officers, you are under arrest.” Defendant continued to run and the car containing Ralph and Teal sped away.
Upon a prearranged signal, Vern Miller leaped from the trunk of the car and sprinted after the fleeing defendant. Gunfire erupted and defendant was felled by buckshot from a shotgun fired by an officer hiding in the underbrush. Miller then apprehended defendant.
Defendant admitted participation in the theft, but contended he was entrapped by Green’s actions. He admitted going to Burns to burglarize the bank but said he changed his mind when he saw other people around the bank. He alleged it was Green who concocted the scheme of stealing the meat because he had a buyer for it, and that Green first came to him and his friends with the idea. The only reason he went along with the plan was because he would receive a large sum of money.
As to the charge of obstructing official duty, defendant testified he ran from Gammage because he did not know Gammage was a police officer, but instead thought he was being “ripped off.” Obviously, the jury chose not to believe defendant’s version of the facts.
Defendant argues the facts of the case constitute entrapment as a matter of law. This contention has no merit. Where evidence is offered to support the defense of entrapment, a question of fact is raised whether the intent to engage in the offense originated in the mind of the defendant or was instigated by officers or agents of the state. (State v. Amodei, 222 Kan. 140, 563 P.2d 440; State v. Carter, 214 Kan. 533, 521 P.2d 294; State v. Bagemehl, 213 Kan. 210, 515 P.2d 1104; State v. Reichenberger, 209 Kan. 210, 495 P.2d 919.) It is a rare occasion when entrapment is established as a matter of law. (State v. Bagemehl, supra at 213; State v. Reichenberger, supra at 218.)
The defense of entrapment is set forth in K.S.A. 21-3210 and its common law roots were traced in State v. Reichenberger, supra. As counsel for the state so adeptly points out, our entrapment law requires a two-pronged analysis of any case wherein entrapment is asserted. The jury must determine whether the defendant was induced or solicited by law enforcement officials for the purpose of obtaining evidence to prosecute that person, and, if so, whether (a) the police merely afforded a criminal predisposed to commit a crime the opportunity or facility for committing the crime, or (b) the crime was the type likely to occur or recur in the course of the defendant’s business and the police did not induce or lead the defendant to believe the conduct was lawful.
A jury is required to look at the conduct of both the law enforcement officials and the defendant in each case where entrapment is asserted, unless there is absolutely no evidence to show the defendant was predisposed to commit the crime or was engaged in a business where the crime repeatedly and continuously occurred. (State v. Bagemehl, supra at 213.)
Defendant urges this court to abandon this so-called “subjective” or “origin of intent” test for the “objective” test adopted in several jurisdictions. The test used in Kansas is one used by the majority of jurisdictions and the “objective” test is the minority rule.
Under the “objective” test of entrapment the jury is forbidden to examine the criminal intent or conduct of the defendant asserting the entrapment defense, but is required to focus its inquiry solely on the acts of the law enforcement officials who participated with defendant in his criminal enterprise. (McKay v. State, 489 P.2d 145 [Alaska 1971]; Grossman v. State, 457 P.2d 226 [Alaska 1969]; State v. Mullen, 216 N.W.2d 375 [Iowa 1974]; People v. Asher, 67 Mich. App. 174, 240 N.W.2d 749 [1976]; Commonwealth v. Jones, 242 Pa. Super. Ct. 303, 363 A.2d 1281 [1976].) The “objective” test is described in Grossman v. State, supra at 229:
. . . [Entrapment occurs when a public law enforcement official, ... in order to obtain evidence of the commission of an offense, induces another person to commit such an offense by persuasion or inducement which would be effective to persuade an average person, other than one who is ready and willing, to commit such an offense. . . .”
The inquiry in this test is not whether the defendant was entrapped by the public official’s conduct, but whether an average man would have been induced to commit the offense. We cannot accept this as the proper standard of inquiry.
Entrapment is a defense used to negate a defendant’s criminal intent to commit the crime for which he is charged by showing that the real criminal intent was conceived by law enforcement officials. (State v. Jordan, 220 Kan. 110, 551 P.2d 773; State v. Hamrick, 206 Kan. 543, 479 P.2d 854.) To disprove entrapment the state must show the intent and state of mind of the defendant on trial, not the state of mind of a mythical average man. In order to do this, it is proper to show the defendant was predisposed to commit the crime before the state approached him. The state may introduce evidence of prior convictions, criminal activities or previous suspicious conduct to disprove entrapment. (State v. Amodei, supra at 147; State v. Reichenberger, supra at 218.)
This does not mean, however, that the state is given a wholesale license to introduce a defendant’s criminal past once he argues he was entrapped. Entrapment raises the issue of a defendant’s predisposition to commit the crime for which he is charged. Evidence of other criminal enterprise must be related or substantially similar to the present charge to be admissible. (K.S.A. 60-445; State v. Amodei, supra at 147; State v. Faulkner, 220 Kan. 153, 551 P.2d 1247.) In the instant case evidence that defendant and his accomplices were planning to commit burglaries and thefts and had prepared to break into a bank was relevant in determining defendant’s predisposition to commit the theft of the truck and its cargo.
Our reading of K.S.A. 21-3210 requires an inquiry into not only the actions of law enforcement officials but the criminal intent and predisposition of the defendant as well. Under the facts of this case the trial court was correct in letting the jury decide the issue of entrapment and the instructions given the jury on that issue were a correct reflection of our law.
Defendant’s next alleged error relates to Instruction No. 18. This instruction cautioned the jury to consider only the evidence which had been presented in this case and not to concern itself or speculate as to evidence it felt might have been presented. The instruction further advised that a juror is not compelled to adhere to a point of view once arrived at if he is convinced after consultation with his fellow jurors that his previous opinion concerning law or facts was erroneous. Defendant does not support his argument with any authorities.
Since no objection was given to the instruction at trial, the instruction must be clearly erroneous to warrant reversal. (K.S.A. 22-3414 [3].) It is not. See, State v. Guffey, 205 Kan. 9, 468 P.2d 254, wherein a similar instruction was approved. (See also, State v. Owens & Carlisle, 210 Kan. 628, 504 P.2d 249; State v. Clouse, 113 Kan. 388, 214 Pac. 103.)
Finally, defendant argues his conviction for obstructing official duty (K.S.A. 21-3808) cannot stand. This is premised on two arguments.
First, defendant argues Gammage was not in the process of discharging his official duties when he arrested defendant; thus, the statute does not protect him. According to defendant, Gammage must have been attempting to arrest defendant for violation of a federal law before he would be protected by K.S.A. 21-3808, and Gammage had no official duty since the arrest was for a state offense. We do not consider this argument persuasive. Whether Gammage had any official duties that evening as an agent of the Alcohol, Tobacco and Firearms Bureau of the Treasury Department is immaterial, since he was in fact assisting state agents in the performance of their official duties. The fact he posed as the buyer on behalf of the state and was there for that purpose negates the argument that he was there only as a federal officer or on a frolic of his own. Thus, breaking away and running from Agent Gammage was conduct unlawful under K.S.A. 21-3808. (See, United States v. Chunn, 347 F.2d 717 [4th Cir. 1965]; State v. Merrifield, 180 Kan. 267, 303 P.2d 155.)
Defendant also argues the conviction is void because Gammage was not sufficiently identified as a police officer. While K.S.A. 21-3808 does not require an officer be properly identified, it does require a defendant have reasonable knowledge that the person he opposes is a law enforcement official. The word “knowingly” in the statute requires this proof. (State v. Bradley, 215 Kan. 642, 527 P.2d 988.) The state must present evidence defendant knew Gammage was a police officer and the state’s evidence shows that Arbogast shouted, “Police officers, you are under arrest.” This statement was sufficient to present the charge to the jury. (State v. Bradley, supra; Owens v. United States, 201 F.2d 749 [4th Cir. 1953].) The conflict in evidence was properly resolved by the jury.
We find no error and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
A petition was filed by defendant-appellant in the above case asking for review of an unpublished opinion of the Court of Appeals dated June 17, 1977, affirming a judgment for attorney fees. The petition for review was granted and the case has been heard in this court on the record, briefs and supplements and with oral arguments as provided in Rule No. 8.03, Rules of the Supreme Court (220 Kan. xlvi).
This case originated in the District Court of Johnson County and is a sequel to a divorce action between the parties. After a divorce was granted to plaintiff, the'defendant sought relief in the Supreme Court of the United States by filing both an appeal and a petition for writ of certiorari. The plaintiff by her attorney filed responsive pleadings and briefs in that court. The appeal was dismissed and certiorari was denied. The plaintiff, Patricia San-tee, then filed a motion in the divorce action in Johnson County seeking attorney fees for the services of her attorney in defending the court’s decree. The district court allowed a fee of $1,500.00 for the services.
The Court of Appeals in reviewing the judgment stated the sole issue on appeal was whether the trial court had sufficient information before it on which to base its allowance of attorney fees to the plaintiff. It affirmed the judgment.
Our examination of the record and briefs indicates that appellant presented an additional point which was not addressed by the Court of Appeals. It was the appellant’s contention that the district court prematurely terminated the hearing on allowance of attorney fees without affording appellant the right to cross-examine witnesses and present evidence in his own behalf..
At the hearing in the district court attorney Johntz testified in support of the motion concerning the responsibility involved, the results obtained and other factors bearing on a reasonable fee, including the number of hours spent in defense of the divorce decree. Appellant North then requested that he be permitted to proceed with his side of the case including cross-examination on an item by item basis. Objection to cross-examination was made on the grounds that attorney Johntz was late for another appointment and that North merely wanted to question the legal competency of the attorney in handling the work. The arguments on the motion had included an attack by appellant on the jurisdiction of the state court to allow a fee for services in the federal court and had been lengthy. That contention was denied and was not pursued on appeal. The judge announced he had heard all he wanted to hear and stated:
“I’m going to rule, Mr. North, that from the statements of Mr. Johntz that the Court has sufficient matters presented to it to make the determination as to what is a reasonable attorney fee for the matters in the United States Supreme Court. I note that Mr. Johntz has brought to my attention 35 hours of time which did not include his appearance in court today, and he’s requested a total fee of $1,500. If my mathematics serves me accurately, if I would allow Mr. Johntz what is the reasonable rate in this judicial district, that is considered as reasonable in these kind of cases, the Court is making the statement as a person having experience in setting attorney’s fees and being aware of what attorney’s fees are reasonably set in this judicial district and in the State of Kansas, that the fee of $50 an hour would be $1,750. This would be an ordinary case without consideration of the magnitude, the novelty of the issue to be determined, the manner, amount and type of research to be gone into by an attorney in researching this type of a novel issue, and so on.
“So there is no question in this Court’s mind that this is a very modest and reasonable request, Mr. North, and I’m going to grant Mr. Johntz’ request. I’ll grant the plaintiff judgment against defendant for the sum of $1,500 for legal fees incurred by pursuing her case in the United States Supreme Court.”
This court is not concerned over the sufficiency of movant’s evidence to support a judgment. The court was justified in accepting counsel’s assertions of fact made in open court. See Small v. Small, 207 Kan. 506, 508, 485 P.2d 1365, and Bennett v. Bennett, 175 Kan. 692, 699, 266 P.2d 1021. This court is concerned with the premature termination of the hearing before the appellant was permitted to cross-examine counsel for appellee and introduce what evidence he might have bearing on the reasonableness of the fee.
In Meyer v. Meyer, 209 Kan. 31, 495 P.2d 942, we hold:
“Litigants have a right by counsel to analyze facts and present their theory as to the applicable law which would support or defend their position. The right to be heard is a matter of public consequence as well as private concern as advocacy in our system of jurisprudence is an effective aid in rendering justice.” (Syl. 1.)
The right to examine and cross-examine witnesses testifying at any judicial or quasi-judicial hearing is an important requirement of due process. See Adams v. Marshall, 212 Kan. 595, Syl. 4, 512 P.2d 365, and cases cited therein.
In Palmer v. Breyfogle, 217 Kan. 128, 535 P.2d 955, it is said:
“. . . It seems to us that where a lawyer sues his client or anyone else for services rendered, he should have some reasonable idea and be able to state the nature of the services which he performed and the professional time and effort he expended in rendering such services. We would require no less of an artisan or a laboring man who is seeking compensation on the basis of quantum meruit.” (p. 147.)
In Breyfogle one lawyer was suing another lawyer to recover a portion of an attorney fee awarded in a divorce case. Should it be any different when a lawyer sues a layman for a fee? We believe not and even though the amount of the fee allowed was adequately supported by evidence and statements of appellee’s counsel the appellant should have been afforded the right to cross-examine and introduce what evidence he might have bearing on the reasonableness of the fee sought.
The judgment allowing attorney fees is reversed and the case is remanded to the District Court of Johnson County for further proceedings in accordance with the views expressed herein. | [
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Per Curiam:
This is a direct appeal by James Edwin Crawford, who was convicted by a jury of rape, aggravated sodomy, aggravated robbery, and theft of a motor vehicle valued at more than $50. Because defendant had prior convictions of rape and burglary (both within a few months of the date of the offenses here involved), sentences of not less than thirty years nor more than life, together with several other concurrent sentences, were imposed.
Crawford was positively identified by the victim and by a bus driver who saw him at the scene. Shortly after the offenses took place, Crawford was apprehended at the end of a high-speed chase when he wrecked the victim’s automobile and was pinned inside. The victim, who was not previously acquainted with the defendant, gave detailed testimony as to each offense. In addition, the state presented extensive corroborating and circumstantial evidence. The defendant did not testify in his own behalf, and the two witnesses called in his behalf did not present evidence which raised substantial fact questions.
Defendant contends that (1) the verdict was not supported by sufficient or substantial evidence; (2) the trial court erred in receiving into evidence state’s exhibit No. 15; (3) the trial court erred in refusing to instruct on the lesser offenses of lewd and lascivious behavior; (4) the trial court erred in refusing to instruct on the lesser included offenses of attempted aggravated robbery and attempted robbery; (5) the trial court erred in giving the jury an instruction on possession of recently stolen property; (6) the reference by the prosecutor to matters not in evidence, during closing argument, constituted reversible error; (7) a television interview of the district attorney was prejudicial; (8) a new trial should have been granted because of the trial errors enumerated above; and (9) the habitual criminal act was inapplicable because defendant had not previously been convicted of felonies, the punishment for which was confinement in the custody of the director of penal institutions. The record convinces us that none of the points raised has merit.
Judged by the applicable standards on appellate review, the evidence was sufficient to support each conviction. State v. Johnson, 222 Kan. 465, 565 P.2d 993; State v. Ames, 222 Kan. 88, 563 P.2d 1034; and State v. Childers, 222 Kan. 32, 563 P.2d 999.
Exhibit No. 15, a “rape kit” consisting of specimens taken by a physician at St. Luke’s hospital, is attacked because the prosecution was unable to locate the nurse who carried the exhibit from the examination room to a waiting messenger in the hallway outside. The possibility that the exhibit was tampered with during this brief interval is remote. The trial court quite properly admitted the exhibit into evidence. Any deficiency in the chain of custody went to the exhibit’s weight rather than its admissibility. State v. Watkins, 219 Kan. 81, 89, 547 P.2d 810.
Lewd and lascivious behavior, K.S.A. 21-3508 (1) (b), is neither a lesser degree of aggravated sodomy, K.S.A. 21-3506, nor is it a crime necessarily proved if aggravated sodomy is proved. The elements of the former are separate and distinct. The state made no attempt to prove, nor did the evidence establish, that the defendant was merely a “flasher.” Likewise, there was no evidence that defendant merely attempted aggravated robbery. The trial court properly refused the requested instructions.
The instruction on the inference to be drawn from the defendant’s possession of recently stolen property, while no longer favored (see comment in PIK, Criminal § 59.01), was not prejudicial under the facts of this case, and was not error. State v. Singleton, 210 Kan. 815, 504 P.2d 224, cert. den. 413 U.S. 920, 37 L.Ed.2d 1042, 93 S.Ct. 3071; State v. Atkinson, 215 Kan. 139, 523 P.2d 737.
The reference by the prosecutor to a matter not in evidence was promptly dealt with by the trial court. The jury was immediately directed to disregard it, and no further reference was made to it. We conclude that any possible prejudice, which might have arisen was cured by the trial court’s prompt admonition. State v. King, 219 Kan. 508, 513, 548 P.2d 803.
The interview granted by the district attorney was not televised until long after the trial, and could not possibly have resulted in prejudice to this defendant. The fact that the jury deliberated until eight o’clock in the evening before reaching its verdict is not inherently prejudicial, and defendant has failed to demonstrate any prejudice in this regard.
The trial errors alleged are not sufficient, taken together, to demonstrate prejudice or to require a new trial.
The habitual criminal statute, K.S.A. 21-4504, refers to prior convictions of felonies, the punishment for which is confinement in the custody of the director of penal institutions. The functions of the director were transferred to and imposed upon the secretary of corrections by Laws of Kansas, 1973, Ch. 339, § 24, now K.S.A. 1976 Supp. 75-5213, effective July 1,1974. That act also provided in substance that wherever there is a reference in any statute to the director of penal institutions, such reference shall be deemed to apply to the secretary of corrections. Defendant was previously twice convicted of felonies punishable by confinement in the custody of the secretary of corrections. K.S.A. 21-4504 was therefore applicable, and was properly invoked.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order of modification on an original award for workers’ compensation.
Claimant, Helen Mae Ferrell, began working for respondent, Day & Zimmerman, Inc., as a powder packer on February 8, 1968. On October 9, 1973, she suffered aback injury while on the job, necessitating a laminectomy. An award of temporary total disability for 415 weeks was entered in her favor on October 29, 1974. This award was not appealed. On December 29, 1975, respondent filed an application for modification and review pursuant to K.S.A. 1975 Supp. 44-528. The examiner found claimant’s condition had improved and that she had a 60% permanent partial disability. He ruled that claimant was entitled to temporary total disability from the date of the accident to the date of the modification award (153.43 weeks) and 60% disability from that date. He also allowed for future medical expenses upon proper application to the director. On review the director approved the award.
On appeal to the district court the award was reduced from 60% disability to 35% disability. The court applied the 35% award as of the date of application for modification and review (December 29, 1975), and allowed respondent credit for overpayments made from that date until the date of the district court’s award (April 1, 1977). The court disallowed application for future medical services.
Claimant first challenges the “recovery back” of payments allowed by the district court, citing Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P.2d 1001; Ratzlaff v. Friedeman Service Store, 200 Kan. 430, 436 P.2d 389; K.S.A. 1974 Supp. 44-525 and K.S.A. 1974 Supp. 44-556(d). Since the accident took place before July 1, 1974, K.S.A. 1974 Supp. 44-525 and 44-556(d) are not applicable. (See, Eakes v. Hoffman-LaRoche, Inc., 220 Kan. 565, 552 P.2d 998.)
In Ratzlaff v. Friedeman Service Store, supra, this court allowed credit for overpayment on past awards to be applied to future compensation awards when diminished disability was established in an action for modification and review. For reasons set forth herein, Ratzlaff is overruled.
The effect of the Ratzlaff rule as applied to the facts of this case was to allow respondent and its insurance carrier to file a motion for modification and review, obtain a decision on the motion nine months later, and have the new award act from the time the motion was originally filed. This practice works an injustice for several reasons. First, a respondent or its insurance carrier is allowed to file a motion for modification at any time, regardless of whether it has evidence to support the motion, then let the motion lie while it attempts to gather evidence. If a respondent files a motion for modification and has evidence to support a finding of diminished disability, it should bear the obligation to force the matter to a prompt hearing. No such obligation should be placed on the claimant, as he has already proved his disability. If the claimant moves for a modification of an award to increase the disability, he should not benefit from the motion until the date the motion is determined.
Modification of a compensation award seeks to create a new award (K.S.A. 1977 Supp. 44-528); therefore, it should not be used as a means of attacking the validity of an award for payments already made. In such cases where a party wishes to make such a challenge the workers’ compensation appeals procedure is the proper avenue of redress. (K.S.A. 1977 Supp. 44-556.)
Although we have held that a compensation award is not a final judgment in the same sense as other civil judgments (Teague v. George, 188 Kan. 809, 365 P.2d 1087), we have held that an employee is entitled to issue execution to recover payments as they become due and owing. (Palmer v. Fincke, 122 Kan. 825, 253 Pac. 583.) We feel compensation awards should be treated in the same manner as child support, alimony or other installments as they become due; that is, each payment as it becomes due is itself a final judgment which cannot later be modified or dissolved by judicial fiat. (See, e.g., Sistare v. Sistare, 218 U.S. 1, 54 L.Ed. 905, 30 S.Ct. 682; Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561; Davis v. Davis, 145 Kan. 282, 65 P.2d 562.) Thus, any modification of a workers’ compensation award must act prospectively from the time the new award is entered and not retrospectively. This rule, of course, does not apply in cases where an award is appealed and the decision of the reviewing court modifies the original award. In those cases both parties are on notice that the award is not “final” until the reviewing court has acted. In the instant case claimant was entitled to temporary total disability from the date she left her employment until the date of the new award.
Claimant next challenges the ruling of the district court concerning the denial of future medical benefits. We cannot agree with the finding of the district court. The only evidence was the statement of Dr. Worth M. Gross who stated, “No further medication or treatment is indicated at this time.” We cannot interpret that to mean that no future medical treatment is necessary or will in the future be necessary, only that future medical treatment does not now appear likely. Since K.S.A. 1974 Supp. 44-510 (now K.S.A. 1977 Supp. 44-510) requires the claimant to prove the reasonableness of any future medical expenses, no hardship is worked upon respondent. If respondent believes the expense is excessive or unnecessary it may demonstrate that fact to the director and if it is correct the expense may be limited or disallowed.
Claimant further challenges the finding of a 35% permanent partial disability made by the district court. It is a well established rule that this court will not substitute its judgment for that of the district court in factual matters on workers’ compensation cases unless the findings are not supported by substantial competent evidence. (Blevins v. Buildex, Inc., 219 Kan. 485, 548 P.2d 765; Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313.) We find the decision of the district court to be supported by the evidence.
The decision of the district court finding claimant to have a 35% permanent partial disability is affirmed. Claimant is entitled to receive temporary total disability compensation ($56.00 per week) from the date she left her employment until the date of the new award (September 17, 1976). Her compensation from that date forward is to be computed at the 35% figure. Any payments made in excess of these amounts are entitled to be credited to any future payments respondent may make to claimant.
Affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Fromme, J.:
Carl E. Nelson was convicted on three counts of rape, three counts of aggravated sodomy and three counts of aggravated kidnapping. The sufficiency of the evidence to support the verdicts is not questioned. The charges stemmed from three different incidents which occurred in 1976. We need not recite the sordid details of these crimes.
Defendant Nelson appeals and urges two trial errors relating to a one-day continuance ordered during the trial proceedings. This continuance was ordered by the trial judge at the end of the third day of trial proceedings. The trial proceedings had been adjourned until 9:30 the next morning. The jurors had been admonished and released for the night. One of the jurors, Miss Arvis Bryan, then approached the judge and asked to be excused on the following day so she could visit her father who was seriously ill in a hospital in Oklahoma. Permission was granted.
When court convened the next morning the trial judge addressed the remaining jurors as follows:
“THE COURT: Members of the jury, you’ve obviously noticed that Miss Bryan is not here. Her father is in the hospital in Oklahoma, and she asked permission to go down and be with him. We expect that she will be back tomorrow. So I’m going to release you for today and ask you to come back tomorrow morning at 9:30.
“Remember my admonition during this recess.
“Obviously the circumstances necessitating it are beyond anybody’s control.
“So remember my admonition.” (Ill R. 337)
Miss Bryan was present the following morning and the trial continued without further interruption. The jury, as originally selected and constituted, returned verdicts of guilty on all counts.
The defendant relies on the provisions of K.S.A. 60-248(/) relating to jury procedure which read:
“(f) Discharge of jury, when. The jury may be discharged by the court on account of the sickness of a juror, or other necessity to be found by the court or by consent of both parties, or after it has been kept together until it satisfactorily appears that there is no probability of the jurors reaching a verdict.”
He argues that the power of a trial court to discharge a juror who has been sworn to pass on the question of the defendant’s guilt must be exercised with a view to preserve inviolate defendant’s constitutional right not to be put in jeopardy twice for the same offense. Defendant asserts his right in this respect can only be safeguarded by a proceeding where a judicial inquiry as to the existence of a fact alleged to have occurred away from the presence and observation of the court is to be made in the presence of the parties interested so their rights to introduce evidence and cross-examine witnesses are afforded. The defendant urges the rule of law that a juror may not be discharged by the court because of illness of a member of his family without a judicial finding supported by evidence indicating the necessity therefor. This contemplates a proceeding in court where the defendant can be present, introduce evidence and cross-examine witnesses. See State v. Reed, 53 Kan. 767, 37 Pac. 174; State v. Allen, 59 Kan. 758, 54 Pac. 1060; and State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280.
The above statute and case law relate to discharge of a juror which of necessity requires the declaration of a mistrial under K.S.A. 60-248(f) or, if consented to by the defendant, a trial to a jury of less than twelve members as provided for in K.S.A. 22-3403(2). We have no quarrel with the cases cited. However 60-248(f) and the case law simply have no application to the present case where a recess was declared and the trial continued after a one-day adjournment with all the jury present.
Defendant’s second approach on appeal to this one-day continuance is the argument that this action violated his right to be present as declared in K.S.A. 22-3405:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. . . .”
Simply stated the question is whether a judge may order a one-day continuance during an evening recess of trial proceedings in the absence of the defendant. In the present case the defendant made no objection to the resumption of trial after the one-day recess. He does not now contend that he or his witnesses were inconvenienced or that he was prejudiced by the one-day delay. He waited until after guilty verdicts were returned before raising objection. To uphold his contention we would have to find there was prejudice per se. This we decline to do.
The granting or denial of a continuance in a criminal prosecution is largely within the sound discretion of the district court. Its ruling will not be disturbed in the absence of a showing that there has been an abuse of discretion which has prejudiced the defendant’s substantial rights. See State v. Hemminger, 203 Kan. 868, 870, 457 P.2d 141, cert. den. 396 U.S. 1045, 24 L.Ed.2d 689, 90 S.Ct. 696, and State v. Bentley, 218 Kan. 694, 695, 545 P.2d 183.
The presence of 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 by the trial judge to visit a sick relative; and when the proceedings resume the following morning the trial judge in his discretion may declare a one-day continuance to assure the return of the juror when no prejudice to the defendant’s rights has been shown.
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Bukaty, J.:
Heartland Surgical Specialty Hospital, LLC (Heartland) filed a motion in the district court to vacate an arbitration award against it in favor of William O. Reed, Jr., M.D. The court denied the motion and confirmed the award. Heartland appeals, arguing that the court erred in its-ruling because Heartland was denied an evidentiary hearing during the course of the arbitration and the arbitrator engaged in ex parte contact with Reed’s counsel that should result in vacating the award. We first conclude that under the rules of arbitration the parties agreed would apply, the arbitrator had discretion whether to set a hearing or dispose of the case otherwise and, under the facts present here, both parties had sufficient opportunity to present their evidence and arguments. We next conclude that any contact between the arbitrator and defendant’s counsel did not corrupt the process to the point that the award should be vacated. We therefore affirm.
Prior to the arbitration proceedings, Heartland and Reed had been involved in litigation apparently over compensation for administrative services that Reed claimed was owed to him. The parties settled that suit and entered into an agreement on July 31, 2009. A portion of that agreement contained a restrictive covenant that prohibited Reed from competing with Heartland in the future. In part, the relevant clause stated:
“Dr. Reed shall not, either directly or indirectly, for a period of five years following the execution of this agreement, and within 25 miles of [Heartland] accept em ployment with, acquire an ownership interest in, provide consulting or administrative services for, or participate in tire development of any hospital or ambulatory surgery center.”
The agreement also provided that Reed would refrain from “ ‘knowingly engaging] in any ownership venture or participating] in any administrative service with [Dr. Glenn Amundson or Dr. Alexander Bailey] in violation of this agreement/ ” Reed was required to provide an annual written attestation to Heartland to show that he was in compliance with this noncompete clause. The agreement also specified that Reed would pay the amount of $792,500 in liquidated damages in the event he breached the agreement. Finally, the agreement also contained a binding arbitration clause which declared:
“Binding Arbitration. Any controversy, dispute or disagreement arising out of or relating to this Agreement, including the breach thereof or tire subject matter thereof, shall be settled exclusively by binding arbitration, which shall be conducted in Overland Park, Kansas, in front of a single arbitrator in accordance with the American Health Lawyers Association Alternative Dispute Resolution Service Procedural rules for Arbitration. Arbitration shall be binding not only on all parties to this Agreement, but on any other entity controlled by, in control of or under common control with a party to the extent that such affiliate joins in the arbitration and judgment on the award rendered by the arbitration may be entered in any court having jurisdiction thereof. Kansas law shall govern and the parlies waive their right to appeal the ultimate decision of the arbitrator...(Emphasis added.)
Sometime after the parties entered into the agreement, Reed formed Elite Hospital Management, LLC (EHM) with Drs. Amundson and Bailey. In February 2010, EHM submitted a proposed management agreement to Heartland. Under the proposed agreement, EHM would have replaced Heartland’s current administration and would have assumed control of Heartland’s operations. On March 9, 2010, Heartland rejected EHM’s proposal.
On March 10, 2010, Heartland filed a claim in arbitration, which alleged in part that Reed had breached the noncompete clause of the settlement agreement. The arbitrator, Jeffrey O. Ellis, was appointed, and on June 11,2010, he held a preliminary hearing where he made some procedural rulings. In addition, the arbitrator scheduled a follow-up conference to “consider whether further discovery or preliminary matters need to be undertaken” or “whether the case is in a position to be submitted for decision.” On June 15, 2010, the arbitrator apparently had an 18-minute ex parte telephone call with Reed’s counsel. Heartland was put on notice of the ex parte communication because of a fee statement submitted by the arbitrator shortly thereafter that included charged time for the telephone call.
Instead of filing an answer to Heartland’s arbitration claim, Reed filed a motion to dismiss on June 28, 2010. He attached to the motion affidavits from Reed and Bailey that described EHM’s operations. The motion stated that it was filed “per the Arbitratoi-’s instructions.” Heartland filed its responses to the motion on August 3, 2010. On August 10, 2010, Reed filed his reply to the responses. On October 13, 2010, the arbitrator, without conducting an evi-dentiary hearing, dismissed all but one of Heartland’s arbitration claims for failure to state a claim for which relief could be granted. His written decision stated in part:
“As arbitrator, I have evaluated each of [Heartland’s] claims summarized above to determine whether [it] has stated a claim for which relief can be granted. Assuming the facts as alleged by [Heartland] to be true, and without regard to any evidence offered by Dr. Reed, [Heartland] has not stated a claim for which relief can be granted arising out of Dr. Reed’s involvement with [EHM]. . . . [Heartland], therefore, is not entitled to discovery on those matters, and it is appropriate for the arbitrator to issue a final ruling on those matters.”
This ruling had die effect of dismissing all but one of Heartland’s claims, leaving in the case only the claim diat Reed had breached the noncompete clause of the settlement agreement. In regard to that claim, the arbitrator stated:
“Insofar as die First Amended Petition alleges Dr. Reed currently is employed by or providing consulting or administrative services to a hospital operating within a 25 mile radius of [Heartland’s] facility, [Heartland] has stated a claim for which relief may be granted. [Heartland], therefore, may pursue discovery on the limited issue of whether Dr. Reed has been employed by or provided specific services to one of the hospitals identified in the First Amended Complaint since executing die Agreement.”
The arbitrator then stated that the arbitration would remain open for 30 days so that Heartland could conduct discovery and submit additional evidence. He further noted that “should [Heart land] decide to not pursue this matter further and not produce additional evidence on the limited issue identified ... on or before November 12, 2010, this arbitration shall be declared closed and this letter shall serve as the final award in this matter.”
Instead of conducting further discovery or producing additional evidence as allowed in the arbitrator’s ruling, Heartland sent a letter to the arbitrator on November 12, 2010, requesting that he reconsider his ruling. The letter also requested that the arbitration be dismissed without prejudice or, in the alternative, that a different arbitrator be appointed. On November 29, 2010, the arbitrator denied all of Heartland’s requests.
Heartland next filed a motion to vacate the arbitration award in the district court. The court denied the motion and confirmed the award. The court first found that it had no jurisdiction to review the arbitration proceedings because both parties had agreed to waive “their right to appeal tire ‘ultimate decision’ of the arbitrator.” Nevertheless, it appears the trial court went on to address the merits of Heartland’s arguments and ruled that it was not entitled to an evidentiary hearing during the arbitration and the alleged ex parte contact of the arbitrator with defense counsel did not provide grounds for vacating the award.
Did the Parties Contractually Waive Their Right to Appeal the Arbitrator’s Decision?
Before we address the merits of Heartland’s allegations on appeal, we must first determine if tire district court correctly ruled that the parties had waived their right to appeal tire award.
As we stated earlier, the parties’ settlement agreement contained the phrase “the parties waive their right to appeal the .ultimate decision of the arbitrator.” Reed argues that Heartland’s appeal must fail because both parties mutually agreed to waive judicial review of the arbitration decision by these terms. Conversely, Heartland argues that neither party waived its right to seek district court review based on the grounds set forth in K.S.A. 5-412(a).
At the same time, Heartland concedes that it waived the right to appeal the substantive findings of fact and conclusions of law under tire terms of the settlement agreement. We agree. See City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, 336, 14 P.3d 1 (2000) (As long as the arbitrator’s errors are not in bad faith or so gross as to amount to affirmative misconduct, the appellate court is bound by the arbitrator’s findings of fact and conclusions of law.). Instead, Heartland maintains that Kansas public policy prevents parties from contractually waiving their right to appeal arbitration rulings for the reasons recited in K.S.A. 5-412(a). In the alternative, Heartland maintains that even if parties may contractually waive their right to appeal arbitration rulings under K.S.A. 5-412(a), Heartland did not waive its appeal rights under the facts in this case.
“The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review. [Citation omitted.] Regardless of the district court’s construction of a written contract, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900-01, 220 P.3d 333 (2009).
Generally, courts have taken two different approaches in determining if parties may, by contract, waive their right to seek judicial review of an arbitration decision. Under the first approach, courts have held that parties may eliminate judicial review of an arbitration award by contract, but their intention to do so must be stated clearly and unequivocally. See Bowen v. Amoco Pipeline Co., 254 F.3d 925, 931 (10th Cir. 2001); see also MACTEC, Inc. v. Gorelick, 427 F.3d 821, 828 (10th Cir. 2005) (citing Dept. of Air Force v. Fed. Labor Relations Auth., 775 F.2d 727, 733 [6th Cir. 1985]; Aerojet-Gen. Corp. v. Am. Arbitration Ass’n, 478 F.2d 248, 251 [9th Cir. 1973]).
Under tire second approach, courts have held that public policy prohibits parties from contractually eliminating judicial review of some but not all aspects of an arbitrator’s decision. See Silicon Power v. General Elec. Zenith Controls, 661 F. Supp. 2d 524 (E. D. Pa. 2009); Barsness v. Scott, 126 S.W.3d 232, 238 (Tex. App. 2003) (holding that a “no appeal” provision in an arbitration agreement did not preclude review of a judgment for reasons of fraud, misconduct, gross mistake, or those grounds for vacature or mod ification listed in the Texas Arbitration Act); Circle Zebra Fabricators, Ltd. ex rel. Circle Zebra Management, L.L.C. v. Americas Welding Corp., Nos. 13-10-00504-CV, 13-10-00591-CV, 2011 WL 1844443, at *6 (Tex. App. 2011) (unpublished opinion) (“ ‘A “binding, final, and non-appealable” arbitral award... simply means the parties have agreed to relinquish their right to appeal tire merits of their dispute; it does not mean the parties relinquish their right to appeal an award resulting from an arbitrator s abuse of authority, bias, or manifest disregard of the law.’ ”), rehearing denied (2011). Essentially, this approach then allows waiver of judicial review of the merits of an arbitration decision but not a waiver of a review which is sought on grounds of corruption, fraud, misconduct, partiality, and similar theories regardless of whether the parties contractually agreed to waive such review. The rationale here generally is that allowing judicial review under these limited circumstances protects the integrity of arbitrations.
Neither party has cited nor are we aware of any Kansas case that has upheld a clause in an agreement to arbitrate that waived all judicial review of an award regardless of the reasons the review was sought.
Heartland contends that it should not be barred from seeking judicial review of the award based upon any of the limited grounds identified under K.S.A. 5-412(a):
“Upon application of a party, the court shall vacate an award where:
(1) The award was produced by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of K.S.A. 5-405, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under K.S.A. 5-402 and the party did not participate in the arbitration hearing without raising the objection.”
Heartland’s argument is persuasive. Permitting judicial review of an arbitration decision for reasons of corruption, fraud, evident partiality, and the other circumstances listed in K.S.A. 5-412(a), even when tire parties have attempted to waive such, helps ensure that die arbitration decision is reached fairly. To uphold a waiver of judicial review even when it is sought for these reasons could result in an arbitration decision being procured by bribery, corruption, or fraud without providing redress to an aggrieved party. It likewise could result in no redress for an aggrieved party when an arbitrator has exceeded his or her powers, refused to hear evidence, or shown a manifest disregard of the law. See K.S.A. 5-412(a); Griffith v. McGovern, 36 Kan. App. 2d 494, 499, 141 P.3d 516 (2006) (manifest disregard of the law). Not allowing parties to appeal to a court under these circumstances undermines the rationale behind and the justification for the arbitration process. In short, we conclude that in order to ensure the integrity of the arbitration process, Kansas public policy must allow parties to seek judicial review of arbitration awards under the limited circumstances set forth in K.S.A. 5-412(a) regardless of a clause in their arbitration agreement which waives such review.
We are mindful that
“ *[i]t is the duty of courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. ... [T]he paramount public policy is that freedom to contract is not to be interfered with lightly.’ [Citations omitted.]” Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005).
Also, Kansas favors the arbitration process as an alternative to the judicial process. Generally, when a party consents to arbitration, it trades the judicial procedures and rules of the courtroom for a simpler, more informal, and more expeditious process. Once an arbitration award is entered, tire finality that courts should afford the arbitration process weighs heavily in favor of upholding the award. Kansas courts must exercise immense caution when asked to vacate an arbitration award. Because a focal purpose of arbitration agreements is to avoid the expense and delay of court proceedings, judicial review of an arbitration award is very narrowly limited. See Moreland v. Perkins, Smart & Boyd, 44 Kan. App. 2d 628, 635-36, 240 P.3d 601 (2010).
Nevertheless, we agree with the cases that take the second approach set forth above and hold that public policy prohibits parties from contractually eliminating judicial review of all aspects of an arbitrator s decision. Arbitration loses its value if there is no protection for the integrity of its process. Is it realistic to assume parties in their right mind who have agreed to arbitrate disputes that might arise with another would agree that an arbitration decision against them will stand even when one of the factors set forth in K.S.A. 5-412(a) is present? We think not. A party victimized during an arbitration proceeding by bias or partiality to the other side, corruption, unfairness, and so forth should not be without a means of review even in the presence of a waiver clause contained in the agreement to arbitrate. The right of parties to contract does not tramp this basic principle of fairness.
We might note at this point that even if we adopt the approach first set forth above that allows parties to contractually eliminate judicial review of all aspects of an arbitration award as long as their intention to do so is clear and unequivocal, we would still be compelled to find that the parties be allowed judicial review in this case. We have previously stated that Heartland has conceded that it waived its right to appeal the substantive findings and conclusions since it waived its right to appeal “the ultimate decision of the arbitrator.” This language, however, does not clearly and unequivocally express an intention to waive the right to appeal on the basis of bias, corruption, fraud, or any other factors set forth in K.S.A. 5-412(a).
We will proceed to the merits of the appeal.
The Necessity for a Hearing
Heartland first argues that the district court erred when it held that Heartland was not entitled to an evidentiary hearing before the arbitrator reached his decision. Specifically, it maintains that the arbitration must be vacated because both K.S.A. 5-412(a)(4) and K.S.A. 5-405 require that the arbitrator hold an evidentiary hearing.
We first note our standard of review. K.S.A. 5-418(a) provides that a party to arbitration may appeal from an order confirming or vacating an arbitration award but, as we stated in a prior context, that judicial review is very limited. Moreland, 44 Kan. App. 2d at 633, 636. The party seeking to vacate an arbitration award bears the burden of proving a basis for setting aside the award. Griffith, 36 Kan. App. 2d at 500. Indeed, a trial court must presume an arbitration award is valid unless there is proof of one of the specific grounds set forth in K.S.A. 5-412(a). Moreland, 44 Kan. App. 2d at 633.
K.S.A. 5-412(a)(4) states that the court shall vacate an arbitration award where “[t]he arbitrators refused to postpone the hearing upon sufficient cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of K.S.A. 5-405, as to prejudice substantially the rights of a party.” K.S.A. 5-405 states in pertinent part:
“Unless otherwise provided by the agreement: (a) The arbitrators shall appoint a time and place for the hearing and cause notification to tire parties to be served personally or by registered mail not less than five (5) days before the hearing ... .
“(b) The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at tire hearing.” (Emphasis added.)
Reed does not dispute that K.S.A. 5-412(a)(4) requires Kansas courts to vacate an arbitration award if the arbitrator(s) failed to conduct a hearing as provided under K.S.A. 5-405. Instead, he argues the latter statute does not mandate a hearing, it only provides a default rule that may be amended by the parties as was done here. He maintains that the parties waived any right to a hearing in their agreement to arbitrate. We agree.
The parties’ settlement agreement stated that the arbitration would be conducted in accordance with the American Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration (AHLA) (rev. June 2009). In reviewing those rules, it becomes clear that the arbitrator has discretion as to what, if any, hearings he or she will set. We start with section 4.01 of tire AHLA. It reads in part:
“At the request of a party or at the discretion of the arbitrator, a preliminary hearing or a preliminary telephonic conference with the parties and/or their counsel and other authorized representatives and the arbitrator may be scheduled by tire arbitrator to consider any matters that will expedite the arbitration proceedings. The arbitrator may, at the preliminary hearing or during the preliminary telephonic conference, establish (a) the extent of and schedule for tire production of relevant documents and other information, (b) the identification of any witnesses to be called, (c) a schedule for discovery or further hearings to resolve tire dispute, and (d) whether the award is to be a reasoned award.” (Emphasis added.)
Nowhere in this rule, or in any other of the AHLA rules for that matter, does it state that the arbitrator must conduct an evidentiary hearing before he or she reaches a decision.
The lack of a mandatory hearing requirement is further evident when Section 4.01 is read in context with other sections in the AHLA procedural rules. For instance, Section 4.15 states:
“When satisfied that the record is complete, the arbitrator shall declare the hearing closed. If written statements are to be submitted, the hearing shall be declared closed as of the final date set by the arbitrator for such submission. If there has been no hearing, the arbitrator shall determine a fair and equitable procedure for receiving evidence and closing the proceeding.” (Emphasis added.)
Section 4.08 also is instructive. It states that “[bjefore the start of die first hearing, if any, the arbitrator may take an oath of office. The arbitrator may require witnesses to testily under oath administered by the arbitrator or a duly qualified person.” (Emphasis added.)
These foregoing sections, when read together, create a vivid inference that the AHLA procedural rules do not require an arbitrator to conduct an evidentiary hearing or any other type of hearing. Their language clearly contemplates that a hearing might never occur. Heartland has failed to show that it was entitled to receive an evidentiary hearing under the AHLA procedural rules.
Moreover, we find nothing unfair or prejudicial to Heartland in the process here that led up to the arbitrator s final award. Following a preliminary hearing on June 11, 2010, the arbitrator sent a scheduling letter to the parties, which apparently reflected an agreement of the parties. It also reflected that he would exercise his discretion in the future regarding the scheduling of further hearings. It stated:
“1. Counsel for [Heartland] will prepare a document in the nature of a petition or a complaint stating with specificity the allegations giving rise to its claim that Dr. Reed is in violation of tire Covenant Not to Compete found at paragraph 5 of the Settlement Agreement. Said petition/complaint shall be submitted by counsel for [Heartland] by close of business Monday, June 14, 2010. Counsel for [Heartland] shall further issue their request for discovery concurrently with the presentation of the petition/complaint.
“2. Counsel for Dr. Reed shall answer [Heartland’s] petition/complaint within 30 calendar days from June 14, 2010, and may issue a request for discovery from [Heartland] at that time.
“3. The parties will reconvene at 10 a.m. on July 27, 2010, for tire purpose of determining whedier the case is in a position to be submitted for decision by the arbitrator. The parties have agreed that there is no need for a ‘reasoned decision.’
“4. At the next conference on July 27, 2010, we will reconsider whether further discovery or preliminary matters need to be undertaken and whether expedited procedures may be followed to submit the matter for decision. Should either party desire a discovery conference prior to the next scheduled hearing on July 27, they may do so by written request.”
Because Reed filed a motion to dismiss instead of answering Heartland’s petition, the arbitration proceedings did not follow this exact schedule. Nevertheless, Heartland was given an opportunity to respond to Reed’s motion to dismiss and, in fact, did so on August 3; 2010. Then, on October 13, 2010, the arbitrator ruled that Heartland had failed to state a claim on all but one of the claims it had submitted to arbitration. Before the arbitrator issued a final ruling on that one remaining claim, it gave Heartland an additional 30 days to conduct discovery and submit additional evidence if it desired. Heartland has not offered a plausible reason why it failed to do so. It maintains that it should have been able to cross-examine Reed and other witnesses at an evidentiary hearing. The argument is unpersuasive because Heartland had ample opportunity to subpoena Reed and the other witnesses for a deposition during the 30-day period it was given to conduct additional discovery. Nor did Heartland ever request more time to accomplish this.
For these reasons, Heartland has failed to meet its burden to show that the trial court erred in finding that an evidentiary hearing was not required under the AHLA rules.
The Allegation of Misconduct on the Part of the Arbitrator
Heartland next argues the district court erred in not vacating the arbitration award under K.S.A. 5-412(a)(l) and (2) because the ex parte communication between the arbitrator and Reed’s counsel constituted “undue means,” partiality towards Reed, and misconduct, which prejudiced its rights. Reed counters that Heartland has failed to meet its burden to establish any basis for vacating the award under either of these statutory subsections. In the alternative, Reed argues that even if misconduct occurred, Heartland’s argument still fails because the alleged misconduct was harmless and did not prejudice Heartland.
Again, we repeat our standard of review. Once an arbitration award is entered, tire finality that courts should afford the arbitration process weighs heavily in favor of upholding the award. Kansas courts must exercise immense caution when asked to vacate an arbitration award. Because a focal purpose of arbitration agreements is to avoid the expense and delay of court proceedings, judicial review of an arbitration award is very narrowly limited. Moreland, 44 Kan. App. 2d at 635-36. The party seeking to vacate an arbitration award bears the burden of proving a basis for setting aside the award. Griffith, 36 Kan. App. 2d at 500. A trial court must presume an arbitration award is valid unless there is proof of one of the specific grounds set forth in K.S.A. 412. Moreland, 44 Kan. App. 2d at 633.
On this issue, Heartland relies on K.S.A. 5-412(a)(l) and (2) which require the court to vacate an arbitration award where “(1) The award was procured by corruption, fraud or other undue means; [or] (2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party.”
When determining if an arbitration award should be vacated for fraud, our court has stated:
“Fraud is not presumed, but must be established by clear and convincing evidence. [Citation omitted.] While an arbitration award may be attacked for fraud, the only type of fraud sufficient to overturn an arbitrator’s award under K.S.A. 5-412(a)(1) is procedural fraud in the actual arbitration proceedings, such as the arbitrator’s exhibition of bias for or against one of the parties.” [Citation omitted.] Griffith, 36 Kan. App. 2d at 498.
When determining if an arbitration award should be vacated because of evident partiality, our Supreme Court has stated: “ ‘The type of relationship which would appear to disqualify is one from which it may not be unreasonable to infer an absence of impartiality, the presence of bias or the existence of some interest on the part of the arbitrator in the welfare of one of the parties.’ [Citation omitted.]” Foley Co. v. Grindsted Products, Inc., 233 Kan. 339, 343, 662 P.2d 1254 (1983).
Clearly, the underlying theme behind these statutory provisions is that Kansas courts must vacate an arbitration award when an arbitrator has abandoned his or her neutrality and has exhibited bias for or against one of the parties.
Section 3.07 of the AHLA restricts ex parte contacts during arbitration proceedings, stating:
“Ex parte Communications. Unless otherwise agreed by all of the parties or required by law, an arbitrator shall not discuss a case with a party or parties or a party or parties’ counsel or other authorized representatives in the absence of another party or parties or the other party or parties’ counsel or other authorized representatives. This restriction does not apply to discussions that relate solely to scheduling and do not involve any discussion of any other substantive or procedural facet of the arbitration.”
Despite the arbitrator’s denial that an ex parte contact occurred, the record contains what appears to be strong evidence that the arbitrator and counsel for Reed engaged in a phone call in which counsel for Heartland was not involved just before Reed filed his motion to dismiss. Heartland apparently became aware of the call shortly thereafter from an invoice sent to the parties by the arbitrator in which he itemized his time in the case. There apparently is nothing in the record that indicates exactly what was said during the call, but there was the notation on Reed’s motion to dismiss which stated that the motion was filed “per the Arbitrator’s instructions.” Heartland argues this misconduct reveals bias and prejudice on the part of the arbitrator that should result in vacating the award.
It goes without saying that the arbitrator and Reed’s counsel should not have engaged in any ex parte communications about what pleadings were to be filed or about any other similar subjects. Heartland argues then that there should be a strong presumption of prejudice sufficient to vacate the award. However, we are aware of no such presumption in Kansas law. Rather, when a party files a motion to vacate an arbitration award on grounds of improper ex parte communication, the party must advance proof that the ex parte communication “ ‘affected or played a part in the decision rendered by the arbitrators.’ ” Foley, 233 Kan. at 346 (arbitration award not procured by corruption, fraud, or other undue means where alleged ex parte communication did not affect arbitrator’s decision).
Based on the relevant facts from the record which are undisputed, we fail to see that any ex parte communication affected the arbitrator’s decision here. We reiterate that, initially, the arbitrator gave Heartland sufficient opportunity to respond to Reed’s motion to dismiss and, in fact, Heartland did so. Then, in later dismissing all but one of Heartland’s claims, the arbitrator assumed as true all the facts stated by Heartland in its pleadings without regard to any evidence offered by Reed and determined that Heartland had failed to state prima facie claims. He gave Heartland 30 days to conduct any further discovery or present any evidence it wished to on the one remaining claim. He further stated that if Heartland did not pursue the matter further, the arbitration would be deemed closed. Also, Heartland has not offered any plausible explanation as to why it never engaged in any further discovery or presented any additional evidence. In short, it has failed to establish how it was treated unfairly, how this award reflected any bias or prejudice on the part of the arbitrator, or in what manner the award would have ultimately been different had no contact occurred.
Also of note is the fact that Heartland apparently knew about the possibility that an improper ex parte contact had occurred when it received the arbitrator’s invoice containing the reference to a telephone contact with Reed’s counsel several months before tire arbitrator issued the award. Yet Heartland did not raise the issue with the arbitrator until 30 days after the arbitrator made known his decision to dismiss all but one of Heartland’s claims. Nor did it take advantage of Rule 7.05 of the AHLA, which reads in pertinent part:
“If a dispute arises between or among the parties regarding a. . . matter in which the propriety of continued service by the arbitrator is challenged and such dispute cannot be resolved among the parties and the arbitrator, tire Service, at its sole discretion, may resolve such issue, may remove tire arbitrator and malte another appointment based on tire parties’ stated preferences with respect to any list submitted to them, or may resubmit a new list.”
This rule does not require that Heartland had to report the matter at any time or by any date before it could raise the issue on appeal. But Heartland’s delay does indicate that perhaps it did not feel aggrieved by the arbitrator’s conduct until it received the award.
. In summary, we conclude that any ex parte contact by the arbitrator with Reed’s counsel did not corrupt the process or affect the substance of the award. The district court did not err in determining that this contact did not provide a basis for vacating the award.
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The opinion of the court was delivered by
HOLMES, J.:
This is an appeal under the Workmen’s Compensation Act from an order of the district court refusing to set aside a settlement agreement, final receipt and release of liability.
On August 27, 1974, appellant Bitnoff suffered an accidental injury within the terms of the Act. A settlement was effected and a Form D settlement agreement, final receipt and release of liability was executed by appellant and filed with the director November 5, 1974. Over sixteen months later, in March, 1976, appellant filed an application for compensation and a motion to set aside the prior agreement, receipt and release. The examiner found that under K.S.A. 44-527 the motion and application were filed out of time. The director reversed the examiner and directed the examiner to conduct a full hearing and take evidence. On appeal the district court reversed the director and reinstated the examiner’s finding that the motion and application were filed out of time.
Bitnoff appeals to this court and alleges that due to certain actions of the employer and the insurance company, they should be estopped from asserting the provisions of K.S.A. 44-527 and his claim should be heard on the merits. The matter comes to this court upon an agreed statement of facts and record. There are no allegations of fraud or misrepresentation in the record and none were claimed in the original motion, which, omitting formal parts, is as follows:
“Comes now the claimant and moves the Director to set aside the Form D Release taken and entered in this matter based upon his injury August 27, 1974, for the reason that additional medical treatments were necessary and a permanent disability resulted from the accident.”
K.S.A. 44-527 provides:
“At the time of making any final payment of compensation, the employer shall be entitled to a final receipt for compensation, executed and acknowledged or verified by the workman, which final receipt may be in form a release of liability under this act, and every such final receipt for compensation or release of liability or a copy thereof shall be filed by the employer in the office of the director within sixty (60) days after the date of execution of such final receipt or release of liability, and if the employer shall fail or neglect to so file such final receipt or release of liability, the same shall be void as against the workman.
“The director shall accept, receipt for, and file every agreement, finding, award, agreement modifying an award, final receipt for compensation or release of liability or copy thereof, and record and index same, and every such agreement, finding, award, agreement modifying an award, final receipt or release, shall be considered as approved by the director and shall stand as approved unless said director shall, within twenty (20) days of the date of the receipt thereof, disapprove same in writing and notify each of the parties of his disapproval, giving his reasons therefor, sending a copy of the same to each of the parties by registered mail: Provided, No proceedings shall be instituted by either party to set aside any such agreement, release of liability, final receipt for compensation or agreement modifying an award, unless such proceedings are commenced within one (1) year after the date any such agreement, release of liability, final receipt for compensation or agreement modifying an award has been so filed and approved by the director.” (Emphasis supplied)
Rule 51-3-4 adopted by the Workmen’s Compensation Director provides in part:
“The director rules that when an accidental injury or disability from occupational disease occurs which is covered by the act, and a written demand is made by the workman as prescribed by law, and compensation is paid by settlement agreement, and final receipt and release of liability is executed by the workman to the employer or carrier therefor, an action by the claimant to set aside the settlement agreement, final receipt and release of liability and to have his claim redetermined must be brought within one (1) year after the approval of the settlement agreement, final receipt and release of liability by the director, or such action is barred. ” (Emphasis supplied)
Appellees assert that based upon the act and rules of the director the examiner is without jurisdiction or authority to set aside a Form D release after one year from the time of its filing with the director. Appellant, on the other hand, asserts that the examiner should have conducted a full evidentiary hearing on all issues involving his claim, including evidence as to the cause of any delay in filing his motion to set aside the release.
“Our decisions are replete that the Workmen’s Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and exclusive, and we must look to the procedure of the act for the methods of its administration.” Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869, and decisions cited therein.
Under the facts and circumstances in this case, we hold that appellant’s motion to set aside the settlement agreement, final receipt and release of liability was not timely filed and is barred by K.S.A. 44-527.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the plaintiffs, Ned B. Gorrell and his wife, Ann J. Gorrell, from an order of the Labette District Court granting summary judgment to the defendant, the City of Parsons, on its motion. Plaintiffs contend that the trial court erred in entering summary judgment when there were contested issues of fact, and that the court erred in applying the doctrine of governmental immunity.
We deem it necessary to set forth in some detail the factual background, as reflected in the pleadings and the answers to interrogatories which were on file at the time summary judgment was entered.
Dr. and Mrs. Gorrell owned and made their home upon a tract of approximately 12 acres within the city limits of the City of Parsons. Shortly before noon on January 22, 1975, Mrs. Gorrell discovered that several city employees had driven onto her lawn, where they were cutting her trees. Mrs. Gorrell asked them to stop, since they were illegally on her property and they had no right to cut her trees. The men refused to stop, saying that they were following the written orders of their boss. Mrs. Gorrell demanded that they leave her property immediately; the men refused to do so, and continued cutting her trees. Mrs. Gorrell then called the city manager, but was told that he was too busy to talk to anyone that day, and that she should call the park department. She did so, but no one answered the phone. She again called the city manager’s office, and was referred to a Mr. Free-burg. She told him what was happening, but got no response. The crew continued to cut plaintiffs’ trees.
At midafternoon she reached the mayor. He called the city manager and arranged for the city manager to go to the Gorrell property at five o’clock that afternoon, but he took no action to stop the city crew from continuing with the destruction of plaintiffs’ trees. At five o’clock the city manager appeared at plaintiffs’ home, checked a right of way marker, and acknowledged to Mrs. Gorrell that the trees were on her property, not on the right of way, and that the cutting was wrongful. He made various promises.
Thereafter, Dr. and Mrs. Gorrell counted the stumps, secured an estimate of the damage, and wrote to the city manager; there was no immediate response; later, city officials suggested they wait until fall, some nine or ten months after the occurrence. Finally, after much runaround, plaintiffs consulted counsel and learned that they must file a claim within six months. They filed a claim on July 8, seeking $9,236.50 for the 104 trees cut by the city employees on January 22. The City rejected the claim, and this action followed.
The petition, filed July 30, 1975, describes the real estate, alleges ownership, recites the factual background, the damages, the filing and rejection of the claim, and seeks actual damages of $9,236.50, plus punitive damages of $10,000.
The answer — in spite of the admonitions of K.S.A. 60-208(b) and K.S.A. 60-211 — contains a broad general denial of every factual allegation contained in the petition. In addition, it alleges that the petition fails to state a “cause of action” upon which relief may be granted; that the City is immune from this suit by virtue of the doctrine of governmental immunity; and that plaintiffs failed to properly comply with K.S.A. 12-105, as amended, compliance being a condition precedent to bringing an action.
The City filed motions to dismiss and for summary judgment. The motion to dismiss was based, inter alia, upon the contention that plaintiffs’ claim failed to comply with K.S.A. 12-105, apparently on the basis that although the claim stated the date of the alleged occurrence, it failed to state the time of day each tree was felled. We need consider this claim no further, except to state that the statute does not require such detail, and the statement of the date was a patently sufficient statement of the time of the happening, and the City could not be misled by the claim. Cook v. Topeka, 75 Kan. 534, 536, 90 Pac. 244 (1907).
The motion for summary judgment alleged that the acts complained of in the petition were governmental in nature, and that the City is not liable for acts of its officers and employees in the performance of a governmental function under the doctrine of governmental immunity. The City also sought to limit the amount of plaintiffs’ prayer to actual damages, since punitive damages were not sought in the claim filed with the City. By their briefs and argument, plaintiffs have now abandoned any claim for punitive damages, and that is no longer an issue.
Interrogatories were answered by plaintiffs, briefs were filed, and the motion for summary judgment was submitted to the trial court. On June 28, 1976, the court granted the City’s motion for summary judgment, and entered judgment in favor of the City. In its Memorandum of Decision, the court said:
“Considering the facts of the case presented by the pleadings in the light most favorable to the plaintiff, it is apparent that the plaintiff’s theory for recovery of damages is that this is an action (in tort) for the wrongful, willful and wanton conversion and destruction of plaintiff’s property by the employees of the defendant for which plaintiff demands both actual and punitive damages.
“The defendant’s allegation that the acts complained of in plaintiff’s Petition are governmental in nature is not controverted; and there is no allegation on the part of the plaintiff that the defendant was acting in a proprietary capacity rather than a governmental capacity. Therefore, the Court finds that the defendant’s employees were engaged in the performance of governmental functions.
“The law in Kansas is well settled by a long line of cases that in the absence of a statute imposing liability a city is not liable in tort for the negligence or misconduct of its officers or employees in the performance of governmental functions. [Citing cases.]
“Accordingly, the Court finds that the defendant’s motion for Summary Judgment should be granted. . . .”
We acknowledge that it has long been the rule in this state that a municipality is not liable for the negligent acts of its officers or employees in the performance of a governmental function, unless such liability is expressly imposed by law. Exceptions engrafted onto this general rule include the imposition of liability (1) where the city creates or maintains a nuisance; (2) where its negligent and wrongful acts occur when it is acting in a proprietary capacity; (3) where it negligently fails to keep its streets reasonably safe for public use; and (4) where it has purchased liability insurance to cover the causal negligence. Grantham v. City of Topeka, 196 Kan. 393, 397-398, 411 P.2d 634 (1966); Bribiesca v. City of Wichita, 221 Kan. 571, 561 P.2d 816 (1977); Sly v. Board of Education, 213 Kan. 415, 516 P.2d 895 (1973); Culwell v. Abbott Construction Co., 211 Kan. 359, 506 P.2d 1191 (1973); Gardner v. McDowell, 202 Kan. 705, 451 P.2d 501 (1969); Paul v. Topeka Township Sewage District, 199 Kan. 394, 430 P.2d 228 (1967); Grover v. City of Manhattan, 198 Kan. 307, 424 P.2d 256 (1967); Rose v. Board of Education, 184 Kan. 486, 337 P.2d 652 (1959); Steifer v. City of Kansas City, 175 Kan. 794, 267 P.2d 474 (1954); Rhodes v. City of Kansas City, 167 Kan. 719, 208 P.2d 275 (1949); Wray v. City of Independence, 150 Kan. 258, 92 P.2d 84 (1939); and Eikenberry v. Township of Bazaar, 22 Kan. 556 (2d ed. 389) (1879). The origin and history of the immunity doctrine, its adoption and application in Kansas, and the exceptions created to temper the harshness of its application, are discussed in detail by Chief Justice Fatzer in Brown v. Wichita State University, 217 Kan. 279, 291, 292, 540 P.2d 66 (1975), modified on reh. 219 Kan. 2, 547 P.2d 1015 (1976), app. dis. 429 U.S. 806, 50 L.Ed.2d 67, 97 S.Ct. 41 (1976). We need not repeat that discussion here.
It is interesting to note, however, that prior to statehood, a contrary view was expressed by the Territorial Supreme Court. Associate Justice Joseph Williams, speaking for a unanimous court in City of Leavenworth v. Casey, 1 Kan. (2d ed.) 544, 549 [McCahon *124, 130] (1860), said:
“. . . The [city’s] charter does not place her beyond the reach of responsibility for acts of commission or omission done or left undone, by her or her agents, by which injury or wrong may accrue to the persons or property of individuals within her corporate jurisdiction. Such is the theory of our government. A corporation is an artificial body created by law, which, as well as a natural body or person, is amenable to the law. Like others of a similar character, existing and acting by virtue of her charter provisions as a corporation, she is capable of suing and being sued in actions at law. In view, then, of the act of incorporation of the city, and the law of such incorporations, as established by the uniform current of judicial decision, we hold that such a body corporate is legally and justly amenable to the law in redress of wrongful acts done by her or her agents, either willfully or through negligence, to the injury of other persons or their property. . .
The doctrine of governmental or sovereign immunity, as noted in Brown, supra, and in Carroll v. Kittle, 203 Kan. 841, 847, 457 P.2d 21 (1969) is of judicial origin. The legislature enacted a general governmental immunity statute, K.S.A. 46-901, et seq., following our decision in Carroll, but the provisions of that act are inapplicable to municipal governments. K.S.A. 46-902. The immunity of municipalities, then, rests upon judicial decision and not upon the constitution or statutory enactment.
We have expressed our dissatisfaction with the governmental immunity doctrine and its inequities in Brown and Carroll. In Brown, we said:
“The doctrine of governmental immunity is an historical anachronism which manifests an inefficient public policy and works injustice upon everyone concerned. The doctrine and the exceptions thereto operate in such an illogical manner as to result in serious inequality. Liability is the rule for negligent or tortious conduct, immunity is the exception. But when the tortfeasor is a governmental agency immunized from liability, the injured person must forego his right to redress unless within a specific exception. Equality is not achieved by artificial exceptions which indiscriminately grant some injured persons recourse in the courts and arbitrarily deny such relief to others. . . .” (217 Kan. at 297.)
Likewise, the distinction between governmental and proprietary functions provides no sound basis for dispensing or denying justice. The observation by Justice (now Chief Justice) Schroeder in Wendler v. City of Great Bend, 181 Kan. 753, 758, 316 P.2d 265 (1957), illustrates the inequity:
“. . . Shadowy distinctions between ‘governmental’ functions and ‘proprietary’ affairs . . . have been used to decide cases, all without much rhyme or reason.”
Turning to the case at hand, and applying — or attempting to apply — the governmental-proprietary distinction to the outrageous conduct of the City disclosed by the record before us, it would appear that plaintiffs’ tort action would not lie if the destruction was wrought by a repair crew from the city street department; it would lie if the crew worked for the municipal light plant; it would not lie if the crew worked for the city sewer department; it would lie if the crew came from the city gas department; it would not lie if the crew came from the park department or the zoo. Possible illustrations and variations are endless. We note that the record before us does not disclose the city department or agency, if any, by which the tree-cutters were employed. The City’s unverified motion alleges that “the acts complained of in plaintiffs’ petition are governmental in nature . . .” The claim is not further explained.
Property is as completely destroyed, people are as seriously injured, losses are as great, whether caused by a street department employee, a municipal light plant employee, a sewer department employee, a gas serviceman, or a park, zoo, or sanitation worker. We can see no just reason for granting immunity to the municipality in the one instance and denying it in the other. Certainly the resulting impact on the injured person is not in anywise reasoned or fair.
We conclude that the rule that a municipality is not liable for the negligent acts of its officers and employees in the performance of a “governmental” function should be abolished. It does not promote justice, and serves no rational purpose.
In its stead, we hold that municipalities are immune from tort liability only for acts and omissions constituting the exercise of a legislative or judicial function, or constituting the exercise of an administrative function involving the making of a basic policy decision. This rule, adapted from Restatement (Second), Torts § 895 C (1973 Tent. Draft) does not establish liability for acts or omissions which are otherwise privileged or are not tortious. Instead, it places municipalities, for the most part, on an equal footing with individuals and corporate entities so far as responsibility for injuries or damage caused by negligence is concerned. We believe this rule will better serve the citizens of this state.
All prior opinions of this court in conflict with this decision are overruled.
The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Fromme, J.:
The three appellants were convicted at a bench trial of possession with intent to sell a large quantity of marihuana to an undercover agent. The appellants, Larry Luginbill, Rene C. Cole, and Keith J. Goulet, were jointly charged and tried. They join in an appeal to this court but are represented by different attorneys.
In order to understand the first two arguments on appeal some preliminary facts must be developed. The statute in effect at the time of the incident reads:
“ ‘Marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination.” (K.S.A. 65-4101 [o].)
At trial Linda Lea Morgan Voss, a forensic chemist, testified as to tests she performed on the substance and concluded it was Cannabis sativa L., marihuana, containing tetrahydrocannabinol (THC).
Defense counsel examined Ms. Voss as to the difference in two schools of thought as to classification of marihuana. Ms. Voss testified she followed the monotypic theory of classification, i.e., there is one species of the genus Cannabis, sativa, and there are varieties of that species such as indica, ruderalis, Americus, and Mexicanus, which refer to the locale of growth. The polytypic theory, which she does not subscribe to, is that there is more than one species of the genus Cannabis, which species include sativa, indica and ruderalis. She stated she could not distinguish between the three varieties with the standard tests. She testified different varieties can only be identified in the growing plant. They cannot be identified after the plants are crushed and processed.
The defendants’ contention here is that the legislature in K.S.A. 65-4101 (o) did not define marihuana to embrace all Cannabis but only Cannabis sativa L. The defendants argue that this necessarily excludes all other “species” from the statute’s proscription.
The defense attorneys cite this court to two cases in their favor (United States v. Lewallen, 385 F. Supp. 1140 [W.D.Wis. 1974]; United States v. Collier, Crim. N. 43604-73 [Super. Ct. D.C. 1974]). However, they neglect to mention that nine of the ten federal circuit courts which have considered this issue have rejected this argument and have held the same language in the Comprehensive Drug Abuse Prevention and Control Act of 1970 was intended to and does include all forms of Cannabis. This includes the 10th Circuit; see United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974). Additionally, more than 20 states with similar language in their state statutes have rejected appellants’ argument. We find no clear cases to support appellants’ position.
In United States v. Kelly, 527 F.2d 961 (9th Cir. 1976), the court notes some of the holdings of the various circuit courts and continues:
“Faced with this array of authority, and numerous state court decisions to the same effect, Kelly’s position finds little support other than United States v. Lewallen, 385 F. Supp. 1140 (W.D.Wis. 1974). ... Of particular significance is the fact that the judge in Lewallen relied principally upon United States v. Collier (March 19, 1974), an unreported Superior Court case from the District of Columbia. That Collier was a slender reed on which to fashion a decision was made clear on March 5, 1975, when the District of Columbia Court of Appeals, sub silentio overruled that decision by reversing four other cases where trial judges had dismissed indictments on the same theory. See United States v. Johnson, D.C.App., 333 A.2d 393 (March 5, 1975), . . .” (pp. 963-964.)
The Lewallen case appears to support defendants’ contention. However, it was not appealable and the court of appeals for the 7th Circuit has not finally addressed the issue.
One of the most complete discussions of this issue is found in United States v. Walton, 514 F.2d 201 (D.C.Cir. 1975). That court noted the defendant’s expert testified that, applying the polytypic approach, four species existed other than sativa L. (indica, ruderalis, gigantea, and an Afghanistan species as yet unnamed) but conceded all five contain the toxic agent tetrahydrocannabinol which produces the hallucinogenic or euphoric effects which led to the congressional ban on marihuana. The court, pointing out that the defendant was arguing congress intended to ban the euphoric effects of sativa L. but not those of the other species, reasoned:
“ . . . This result seems manifestly unreasonable and furthermore could raise the most serious equal protection problems if it were adopted, i.e. an individual convicted for distribution of sativa L. could state with more than a little justification that no legitimate legislative purpose permits the government to jail persons who obtain a THC “high” from sativa L. but to not prosecute persons who obtain the exact same “high” from another species. Moreover, Walton’s expert concedes that at present there is no reliable biochemical or spectrographic method for distinguishing between the various species of marijuana. Thus, unless the government has access to the growing plant, an unlikely situation, it can not at present prove that a given defendant possesses one kind of marijuana or another. It may be that the government has the capacity to develop a method but since Congress did not have the benefit of any such method when it enacted the statute in issue here, one must certainly pause to consider why Congress would enact a law the violations of which could not be proven on the basis of present knowledge. Even if Congress did have such a method, it is apparently conceded that only citizens with expert botanical knowledge could distinguish between the various species of marijuana. This suggests a serious due process question: could the government prosecute an individual for possession of sativa L. when there are no means whereby the average citizen can distinguish between sativa L. and other species to thus conform his conduct to the requirements of the law? It presses us to extremes to hold that Congress would enact a law the violations of which are not detectable to the group of citizens to whom the law is addressed.” (pp. 202-203.)
The Walton court then turned to the federal legislative history, noting that although the defendant was convicted under the Controlled Substances Act of 1970, the definition of marihuana there was from the Marijuana Tax Act of 1937. The Walton court stated the legislative history shows that the 1937 definition was intended to include those parts of marihuana containing THC and exclude those which did not. No testimony before congress was found that marihuana was anything but monotypical.
Some of this legislative history of the Federal Drug Abuse Prevention and Control Act (21 U.S.C. § 801, et seq.) is set forth in United States v. Rothberg, 351 F.Supp. 1115 (E.D.N.Y. 1972), which was affirmed by the 2nd Circuit in United States v. Rothberg, 480 F.2d 534 (2nd Cir. 1973), cert. den. 414 U.S. 856, 38 L.Ed.2d 106, 94 S.Ct. 159 (1973).
The definition of marihuana in our 1972 Uniform Controlled Substances Act (K.S.A. 65-4101 [o]) and the Federal Drug Abuse Prevention and Control Act (21 U.S.C. § 801, et seq.) are virtually identical. The year the Federal Act was enacted the National Conference of Commissioners on Uniform State Laws adopted the Uniform Controlled Substances Act (1970). Two years later Kansas adopted the Uniform Controlled Substances Act.
We conclude the definition of marihuana contained in K.S.A. 65-4101 (o) of the Kansas Uniform Controlled Substances Act, enacted in 1972, was intended to include those parts of marihuana which contain the chemical tetrahydrocannabinol, to exclude those parts which do not, and to outlaw all plants popularly known as marihuana to the extent they possess the chemical regardless of the possible existence of more than one species of marihuana.
The principles of statutory construction in Kansas vary little from those employed in the federal cases cited. In State v. Bishop, 215 Kan. 481, 524 P.2d 712, the court quoted the rules of construction of penal statutes from an earlier case, State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P.2d 1011:
“ ‘It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.
“ ‘The object of the rule is to establish a rule of certainty to which the individual may safely conform without fear of the statute being misinterpreted by a court or prosecutor. If we go beyond the fair meaning of the language used in the statute and attempt enlargement by implication or intention we have abandoned certainty. . . . Aid cannot be sought from outside facts or circumstances, which would leave the results uncertain depending on the energy or the discretion of the investigator. Although the courts in determining the intention of the legislature may look to existing conditions, the causes which impelled the enactment and the object sought to be obtained, such factors in considering a penal statute should be matters of common knowledge.’ . . .” (p. 483.)
We have stated:
“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.” (State v. Dumler, 221 Kan. 386, Syl. 1, 559 P.2d 798.)
Also, this court has said:
“In determining legislative intent, courts are not limited to a mere consideration of the language employed but may properly look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished and the effect the statute may have under the various constructions suggested.” (State, ex rel., v. City of Overland Park, 215 Kan. 700, Syl. 10, 527 P.2d 1340; also State, ex rel., v. Kalb, 218 Kan. 459, 464, 543 P.2d 872.)
Considering the purpose to be accomplished by the enactment, we come to the conclusion that the prohibition was aimed at the euphoric effects produced by the species. This is illustrated by the specific enumeration in this statute of those parts of the plant known to cause the euphoric or hallucinogenic effects. This purpose is a matter of common knowledge, and thus it is entirely proper for the court to consider it.
Following the rule stated in State, ex rel., v. City of Overland Park, supra, this court should consider the effect the statute would have under various constructions. Adopting the defendants’ interpretation would lead to impossible results. (See discussion in United States v. Walton, supra, pp. 202-203, quoted above.) It would appear from the testimony from Ms. Voss as well as that appearing in the many cases deciding this issue that the “species”, if they are that, can only be distinguished in the growing plant. The result would be that the citizens at whom the statute’s prohibition was intended would be unable to know whether or not they were violating the statute. The police would be unable to distinguish for purposes of arrest and seizure, and the prosecution would be unable to secure a conviction. It is highly unlikely the legislature intended to pass a statute which could not be enforced.
Although we are aware of the rule of strict construction, the defendants’ argument must nevertheless fail. As was stated in United States v. Bettenhausen, 499 F.2d 1223 (10th Cir. 1974):
“ . . . While penal statutes are strictly construed, the maximum [sic] is not a command to override common sense and the evident statutory purpose. [Citations omitted.]” (p. 1234.)
Defendants urge the maxim “expressio unius est exclusio alterius” mandates their suggested construction. However, this is answered in language from In re Olander, 213 Kan. 282, 515 P.2d 1211:
“One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one thing implies the exclusion of another. This rule may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. [Citations omitted.]” (p. 285.)
Applying these rules of construction to the case at hand it is clear the intent of the Kansas legislature in enacting this statute was to make the prohibition apply to all marihuana and not to make a distinction between varieties (under the monotypic theory) or species (under the polytypic theory). The “ordinary meaning” of the word “marihuana” certainly includes all varieties. The language gave fair notice with no lack of certainty as to what was and what was not illegal. Rather, a lack of certainty would exist if the court were to accept defendant’s argument.
There is no error shown on this point.
Appellants further argue that K.S.A. 65-4101 (o) is unconstitutionally vague and indefinite and constitutes a violation of due process because of the use of “Cannabis sativa L.” in the definition.
We have previously addressed this argument. The language of the statutes, K.S.A. 65-4101 (o), K.S.A. 65-4105 (d), and K.S.A. 1973 Supp. 65-4127b, defining and proscribing the possession and sale of marihuana conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. Appellants’ argument that the statute proscribing possession of marihuana with intent to sell is unconstitutionally vague and indefinite is without merit.
The final three points in this appeal are raised by appellants Goulet and Cole. They challenge the sufficiency of the evidence to establish their participation in the possession of marihuana with intent to sell. Therefore it is necessary to review the evidence introduced at trial.
The prosecution relied largely on the testimony of Jack Hiebert, an undercover agent working for the Sedgwick County sheriff’s office. He met Goulet in a tavern in Wichita and told Goulet he had to leave Wichita because of “heat” from the law enforcement agencies. He was going to Garden City and wanted some “goodies” to take with him. Goulet advised Hiebert he knew where Hiebert could get 50 pounds. Goulet promised to check on it and contact Hiebert. Hiebert returned to the tavern later but the person Goulet was expecting did not show up. At a subsequent meeting Goulet and Cole were together. Hiebert advised them that he could “handle” as much as 500 pounds. Goulet asked Hiebert to meet him the next morning at the tavern.
The following day Goulet and Hiebert met at the tavern but Goulet had not yet contacted the person who was to supply the marihuana. They met a couple of times after that and on June 9, Hiebert advised Goulet he was leaving for Garden City with or without the marihuana. Hiebert gave Goulet his phone number. Nothing further transpired until the 15th when Goulet phoned Hiebert and said he was ready to deal. There were further delays but eventually they met at another lounge. At this meeting Hiebert, Goulet, Luginbill and Cole were present. Goulet talked to Luginbill and then Luginbill and Cole left the lounge to see about the deal. Before leaving Cole told Goulet he was taking Luginbill “to see about the dope”. When they returned arrangements were made to meet at Hiebert’s motel room at 2:00 a.m. the next morning. Cole told Hiebert, “Don’t worry, we’ll get you some stuff.” Cole, Goulet and Luginbill showed up at the motel the next morning and Luginbill stated he had 25 kilos of marihuana. Cole helped compute the selling price.
All four then left for an apartment complex. Cole drove Luginbill to the complex. Luginbill entered and came back with a “brick” of marihuana which was opened and tested. Cole took part in the testing. Hiebert then made a call to get his money. While waiting Luginbill stated he would make $400.00 and that Goulet would make approximately $250.00 on the deal.
A plain clothes officer in an unmarked car arrived with the money ($6,150.00) and after Luginbill was shown a roll of one hundred dollar bills he obtained two duffle bags of marihuana from the trunk of a car. The marihuana was placed in the back of Hiebert’s pickup. At this time the three defendants, all of whom were present, were arrested.
Both Goulet and Cole participated in negotiations leading to the aborted sale of the marihuana. All of the defendants were present when the 25 kilos of marihuana were tested and then transferred to Hiebert. The substance was identified as marihuana by the forensic chemist after chemical tests had been conducted.
Under the rule stated in State v. Steward, 219 Kan. 256, Syl. 14, 547 P.2d 773, the state’s evidence was sufficient to establish prima facie cases, and under the rule stated in State v. Wilson & Wentworth, 221 Kan. 359, Syl. 2, 559 P.2d 374, the trial court did not err in refusing to direct verdicts of acquittal.
The final argument of Goulet and Cole is that the evidence conclusively established they were merely “procuring agents” for the buyer, Hiebert, under the law declared in State v. Osburn, 211 Kan. 248, 505 P.2d 742. Whether the appellants were selling agents of the narcotic or merely procuring agents for the buyer was a question of fact to be determined from the evidence by the trier of fact. See State v. Fitzgibbon, 211 Kan. 553, 507 P.2d 313, and State v. Osburn, supra. This was a bench trial and the trial judge resolved the question in favor of the prosecution. On appellate review these convictions must stand. See State v. So verns, 215 Kan. 775, 529 P.2d 181; and State v. Baker, 219 Kan. 854, 549 P.2d 911.
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The opinion of the court was delivered by
Holmes, J.:
This action was filed by plaintiff-appellant, Charles E. Rauh, to restrain the Hutchinson, Kansas, City Commission from taking action on two ordinances providing for the issuance of industrial revenue bonds to finance Cargill, Inc. in the im provement and expansion of the former Barton Salt Plant. In addition to the restraining order, plaintiff prayed for a determination whether the proposed ordinances were legislative or administrative in character and therefore within the purview of the initiative and referendum statute, K.S.Á. 12-3013.
While the factual situation is relatively simple, the pleadings, procedural steps taken to date, record, arguments and contentions of the parties require a rather detailed résumé.
Originally, Cargill, Inc. was not a party to this action but, following the decision of the district court, was allowed to intervene for purposes of appeal. Sometime between 1971 and October, 1974, Cargill purchased the salt plant, which apparently was old and in need of extensive repairs and remodeling. In October, 1974, Cargill approached the city commission about issuing industrial revenue bonds to finance major plant improvements and expansion. On October 29, 1974, the commission adopted resolution #1637 in which it found that issuance of five million dollars of industrial revenue bonds would be in furtherance of the statutory purposes set forth in K.S.A. 12-1740 to 12-1749, inclusive, and would promote the welfare of the community. This resolution was not published as required under K.S.A. 12-3007 for an ordinance. No further action was taken by Cargill or the city to implement the issuance of the bonds until March, 1976, when Cargill announced plans to ask the city commission to approve the application for bonds. It appears to be undisputed that the delay by Cargill in requesting the city to proceed was due to an unfavorable bond market between the fall of 1974 and late winter, 1976. Plaintiff appeared at the next city commission meeting on March 30, 1976, protesting the use of industrial revenue bonds for Cargill. On April 13, 1976, plaintiff again appeared before the commission to advise that petitions, under the initiative and referendum statute (K.S.A. 12-3013), seeking the enactment of an ordinance declaring that no bonds be issued under resolution #1637, were being circulated to the electors of the city and would be filed with the city clerk. At the same meeting the city attorney advised the commission that inasmuch as the proposed ordinances to implement the issuance of bonds were administrative, the petitions were also administrative in nature and the ordinance proposed by the petitions would not be subject to the initiative and referendum statutes.
Cargill prepared two ordinances, #6519 and #6520, which were placed on first reading by the commission on May 25, 1976. These ordinances were designed to implement the issuance of the $5,000,000.00 in bonds as originally contemplated in the resolution of 1974. Following the first reading of the ordinances plaintiff filed an action in the district court and obtained a temporary restraining order preventing the city commission from acting further on the proposed ordinances. The matter was heard on the merits on June 8, 1976, at which time the court found in favor of the defendants. The court specifically found that the Cargill ordinances presented to the commission were administrative and not legislative and plaintiff’s requested ordinance was not subject to K.S.A. 12-3013. Plaintiff failed to post the required bond to keep the restraining order in effect pending appeal and the commission proceeded with the issuance of the bonds. Plaintiff has taken this appeal from the orders and findings of the trial court.
Plaintiff raises a number of issues on appeal and the defendants and intervenor raise various defenses. The basic question before this court, however, is whether the action of the city commission in adopting ordinances #6519 and #6520 was legislative, which would submit the ordinance requested by petitioner to an election under K.S.A. 12-3013, or was it administrative, which, by the express terms of the statute, would exclude the requested ordinance from election.
The use of industrial revenue bonds by municipalities and other governmental bodies has been a relatively recent development, which has become increasingly popular since the early 1950s. Revenue bonds, as such, have long been utilized to promote the construction or expansion of public utilities, or other similar ventures, where the facility is publicly owned through the governmental entity and the primary purpose is one of public use and necessity. The use of revenue bonds for the purposes of furthering private enterprise is another matter.
The possibility that some procedure similar to industrial revenue bonds might someday be used to promote private enterprise in Kansas was foreseen over a century ago when, in 1874, Justice Miller, speaking for the United States Supreme Court, stated:
“If these municipal corporations, which are in fact subdivisions of the State, and which for many reasons are vested with quasi legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the power of the Legislature of the State to authorize them to use it in aid of projects strictly private or personal, but which would in a secondary manner contribute to the public good; . . . Savings and Loan Association v. Topeka, 87 U.S. 455, 460, (20 Wall. 655, 659).
The distinguishing feature of all revenue bonds, whether for a municipally owned public purpose or for private enterprise, is that the bonds ordinarily are not a general financial obligation of the governmental body and its taxpayers, but are payable from the income or revenue generated by the particular facility. In Kansas, by statute, industrial revenue bonds and the interest thereon can never be paid as a general obligation of the city nor may they be payable in any manner by taxation. (K.S.A. 12-1743.)
The events speculated upon by Justice Miller in 1874 came to pass in 1961 when the Kansas Legislature, recognizing the potential of the use of industrial revenue bonds, passed a comprehensive act authorizing their use by cities. This act was in addition to existing revenue bond statutes. The provisions of the act are found in K.S.A. 12-1740 to 12-1749, inclusive, and amendments. The purpose of the act, as set forth in K.S.A. 12-1740, is:
“Purpose of 12-1740 to 12-1749. It is hereby declared that the purpose of this act shall be to promote, stimulate and develop the general economic welfare and prosperity of the state of Kansas through the promotion and advancement of physical and mental health, industrial, commercial, agricultural, natural resources and of recreational development in the state; to encourage and assist in the location of new business and industry in this state and the expansion of existing business and health development; and to promote the economic stability of the state by providing greater employment opportunities, diversification of industry and improved physical and mental health, thus promoting the general welfare of the citizens of this state by authorizing all cities of the state to issue revenue bonds, the proceeds of which shall be used only to purchase or construct, maintain and equip buildings and acquire sites therefor and to enlarge or remodel buildings and equip the same, for agricultural, commercial, hospital, industrial and manufacturing facilities and to enter into leases or lease-purchase agreements with any person, firm or corporation for said facilities.”
K.S.A. 1977 Supp. 12-1741 provides that any city shall have power to issue revenue bonds for the purposes indicated in 12-1740 providing the governing body declares that the facility would promote the welfare of the city and further provides certain restrictions as to location of the proposed facilities. It also provides that the city shall have the power to enter into leases and lease-purchase agreements for the facilities. K.S.A. 12-1742 sets forth details concerning such leases and lease-purchase agreements and for the disposition of any monies received by the city in lieu of taxes.
K.S.A. 12-1743 provides:
“Nothing in this act shall be so construed as to authorize or permit any city to make any contract or to incur any obligation of any kind or nature except such as shall be payable solely out of the rentals from such facilities. Such cities may issue bonds payable solely and only from the revenues derived from such facilities. Such bonds may be issued in such amounts as may be necessary to provide sufficient funds to pay all the costs of purchase or construction of such facility, including site, engineering and other expenses, together with interest.
“Bonds issued under the provisions of this act are declared to be negotiable instruments, shall be executed by the mayor and clerk of the city, and shall be sealed with the corporate seal of the city. The principal and interest of said bonds shall be payable solely and only from the special fund herein provided for such payments, and said bonds shall not in any respect be a general obligation of such city, nor shall they be payable in any manner by taxation. All details pertaining to the issuance of such bonds and the terms and conditions thereof shall be determined by ordinance of the city.” (Emphasis added)
K.S.A. 12-1744 provides the city may pledge the facility and the net earnings therefrom to the payment of the bonds and provides for the establishment of a sinking fund. K.S.A. 1977 Supp. 12-1744a through d provide the procedure for issuance of the bonds, filing of notices and details with the Kansas securities commissioner, findings to be made by the commissioner, provisions for filing a certificate evidencing the issuance of the bonds and sanctions against the members of the governing body of the city in the event of failure to comply with the notice and filing requirements. K.S.A. 12-1745 sets certain limitations on the amount of bonds which may be issued. K.S.A. 12-1746 exempts the bonds and all income or interest therefrom from all state taxes except inheritance taxes. K.S.A. 12-1747 defines the term revenue bonds, provides again that they shall not be general obligations of the city, shall not contain the recitals set forth in K.S.A. 10-112 (under the general bond law) and sets forth specific recitals which shall be included. K.S.A. 12-1748 provides for the construction of the terms of the act. K.S.A. 12-1749 makes the act supplemental and cumulative to other existing laws. K.S.A. 1977 Supp. 12-1749a provides for refunding of any bonds issued under the act.
Following enactment of the original act in 1961, its constitutionality was challenged and upheld by this court in State, ex rel. v. City of Pittsburg, 188 Kan. 612, 364 P.2d 71 (1961). Amendments which have been made to the act since 1961 are such that the discussion in State, ex rel. v. City of Pittsburg, supra, remains pertinent and for those interested in a detailed analysis of the constitutional aspects of the act, we would refer them to that opinion.
The initiative and referendum statute, K.S.A. 12-3013, provides a procedure whereby a city’s electors may place legislative action of the city governing body before a vote of the people. The statute specifically exempts administrative ordinances from its operation.
With the foregoing rather verbose statement of the facts and background in this case, we turn to the issue at hand.
Were the original Cargill ordinances #6519 and #6520 legislative or administrative?
This court has recently set forth certain guidelines for determining whether an action is legislative or administrative in character in City of Lawrence v. McArdle, 214 Kan. 862, 522 P.2d 420 (1974). The first four paragraphs of the syllabus state:
“1. The operation of the initiative and referendum statute is to be confined with a considerable degree of strictness to measures which are quite clearly and fully legislative and not principally executive or administrative.
“2. One crucial test for determining that an ordinance is administrative or legislative is whether the ordinance is one making a new law or one executing a law already in existence. Permanency and generality of application are two additional key features of a legislative ordinance.
“3. Acts constituting a declaration of public purpose and making provisions for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power. Acts dealing with only a small segment of an overall policy question are generally of an administrative character.
“4. Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative, even though they may also be said to involve the establishment of policy.”
The distinction between legislative and administrative enactments is treated at some length in 5 McQuillin, Mun. Corp. (3rd Ed.) § 16.55, pp. 211-214:
“§ 16.55 — Legislative or administrative measures. The power of initiative or referendum usually is restricted to legislative ordinances, resolutions, or measures, and is not extended to executive or administrative action, although a city charter may dispense with this distinction. It has been said, however, that if the subject is one of statewide concern in which the legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state’s designated agent for local implementation of state policy, the action receives an ‘administrative’ characterization, hence is outside the scope of the initiative and referendum.
“Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative. In this connection an ordinance which shows an intent to form a permanent rule of government until repealed is one of permanent operation. Obviously, details which are essentially of a fluctuating sort, due to economic or other conditions, cannot be set up in and by an ordinance to be submitted to the vote of the people.
“The test of what is a legislative and what is an administrative proposition, with respect to the initiative or referendum, has further been said to be whether the proposition is one to make new law or to execute law already in existence. The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it. Similarly, an act or resolution constituting a declaration of public purpose and making provision for ways and means of its accomplishment is generally legislative as distinguished from an act or resolution which merely carries out the policy or purpose already declared by the legislative body.” (Emphasis added)
The industrial revenue bond act is comprehensive and complete and sets forth the legislative policy and purposes in K.S.A. 12-1740. The balance of the act specifies the powers, restrictions and procedure to be utilized by the governing body of the city in exercising its administrative functions to carry out that policy. The act specifies no particular form in which the city shall make the necessary declaration that the proposed facility would promote the welfare of the city. The initial resolution and the subsequent ordinances enacted by the City of Hutchinson would appear to satisfy the statutory requirements to put the administrative procedure contemplated by the statutes into operation.
K.S.A. 12-1743, which provides in part:
“All details pertaining to the issuance of such bonds and the terms and conditions thereof shall be determined by ordinance of the city”
grants the governing body of the city broad discretionary powers in the exercise of its administrative functions.
In State, ex rel. v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 296 P.2d 656, there was a constitutional attack upon the urban renewal act which authorized cities to set up and carry out urban renewal projects. While not directly in point, one argument raised against the statute was that it constituted an unlawful delegation of legislative power. We stated at page 440:
“We think it clear that while the legislature cannot delegate its constitutional power to make a law, it can make a law which delegates the power to determine some fact or state of things upon which such law shall become operative. In other words, the legislature may enact general provisions but leave to those who are to act certain discretion in ‘filling in the details,’ so to speak, provided, of course, it fixes reasonable and definite standards which govern the exercise of such authority. . . .”
In the case at bar the legislature has enacted the broad general provisions and policy and delegated to the city the administrative function of “filling in the details” under reasonable and definite standards as contained in the act itself.
If the legislature had intended that industrial revenue bonds under K.S.A. 12-1740, et seq., be subject to initiative and referendum it could have included such provisions in the act. Voluminous legislation has done so. One has only to make a cursory examination of the various bond statutes now in existence to find that in many, if not most, instances legislation authorizing bonds either requires an election in the first instance or provides for one upon the filing of protest petitions. (See, for example, Municipal Airfields, K.S.A. 3-113, et seq.; County Airports, K.S.A. 3-301, et seq.; Industrial Development Bonds, K.S.A. 12-3801, et seq.; Public Utilities, K.S.A. 12-801, et seq.; General Improvements, K.S.A. 12-6al5; Libraries, K.S.A. 12-1221; Swimming Pools and Golf Courses, K.S.A. 13-13,101; ad infinitum.)
One may question the reasoning behind the legislature’s action in not providing such procedures under K.S.A. 12-1740, et seq. However, a close examination of the statutes may provide an answer. The statutes themselves contain strong and binding safeguards for the public. The obligations for payment of the bonds and interest thereon shall not in any respect be payable as a general obligation of the city nor shall they be payable in any manner from taxation. The bonds are payable solely and only from the revenues derived from the facilities financed. (K.S.A. 12-1743)
42 Am. Jur. 2d, Initiative and Referendum, Sec. 12, states:
“Generally, an enactment originating a permanent law or laying down a rule of conduct or course of policy for the guidance of citizens or their officers or agents is purely legislative in character and referable, while an enactment which simply puts into execution previously declared policies or previously enacted laws is administrative or executive in character and not referable. If an act carries out an existing policy of a legislative body, it is administrative whether the policy came into existence in an enactment of the body itself, in the organic law creating the body, or in an enactment of a superior legislative body.” (Emphasis added)
An examination of the cases and legal authorities will disclose that the determination of whether a municipality has acted in its legislative or administrative capacity is indeed difficult and by no means consistent. Each case must be determined on its particular facts and even then there is no unanimity of opinion. Action based on one set of facts will be considered legislative in one jurisdiction while the same or similar action may be considered administrative in a different jurisdiction.
Considering the broad general policy and the comprehensive nature of the industrial revenue bond act and applying the criteria set forth in City of Lawrence v. McArdle, supra, we find that the acts of the governing body of the City of Hutchinson in the adoption of ordinances #6519 and #6520 were administrative in character and not subject to contest by election under K.S.A. 12-3013.
In view of the conclusion reached it is not necessary to consider the other points and contentions raised by the parties.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Mark E. Ritchey was convicted by a jury of second-degree murder and felony theft in violation of K.S.A. 21-3402 and 21-3701 (a). He was sentenced to imprisonment for consecutive terms of fifteen years to life and three to ten years. He appeals, contending that the trial court erred in overruling his motion for a psychiatric evaluation, and in instructing the jury that “malice may be inferred by use of a deadly weapon.”
A complaint was filed in Sedgwick County on April 21, 1975, charging that on March 25, 1975, Mark E. Ritchey unlawfully, willfully and maliciously killed and murdered Joey Tapscott by hitting him about the head with a pool cue, and that on the same date Ritchey obtained and exercised unauthorized control over Tapscott’s automobile, a 1968 Pontiac which was valued at more than $50.
Ritchey was indigent, and at his request counsel was appointed for him. He then filed a motion, requesting that the court appoint a psychiatrist to evaluate him “for the effective preparation of his defense, and so that his counsel can consult with said psychiatrist and testify at his trial.” The motion was argued before a district judge on April 28, 1975. Ritchey had given a statement in which he said that he had been staying with Tapscott in a Wichita motel. He knew that Tapscott was a homosexual. Tapscott and Ritchey argued; Tapscott approached him from the rear and made homosexual advances; he shoved Tapscott away; Tapscott advanced again and Ritchey struck him with a pool cue, knocking him onto the bed. Then Ritchey “clicked and went crazy,” and thereafter he struck Tapscott repeatedly with the pool cue.
Defense counsel contended that Ritchey acted in the “heat of passion,” and that this would be his defense to the second-degree murder charge. Counsel contended that the “heat of passion” should be a subjective standard, and that the acts of Tapscott, a homosexual who allegedly made advances toward the defendant, had a different effect on the defendant than they might have had on another person. The court overruled the motion and denied the request. An information was filed on the following day, and trial was held in June, 1975.
Voluntary manslaughter, the unlawful and intentional killing of a human being without malice and in the heat of passion, is a lesser degree of homicide than second-degree murder. Evidence that the homicide was committed in the heat of passion would, therefore, be desirable from the viewpoint of the defense. The question presented is whether the trial court erred in denying psychiatric services upon the showing made when the motion was argued. The request was not renewed thereafter.
“Whether expert services are necessary to an adequate defense is a matter left to the sound discretion of the trial court. A denial of an application for expert services will not be disturbed in the absence of a showing of abuse of discretion to the extent that a defendant’s substantial rights have been prejudiced thereby.” State v. Burnett, 222 Kan. 162, 563 P.2d 451, Syl. 3; and see cases cited in that opinion.
“Heat of passion” includes an emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror. State v. McDermott, 202 Kan. 399, 402, 449 P.2d 545, cert. den., 396 U.S. 912, 24 L.Ed.2d 187, 90 S.Ct. 226. It must be of such a degree as would cause an ordinary man to act on impulse without reflection. State v. Jones, 185 Kan. 235, 341 P.2d 1042. The emotional state must have arisen from circumstances constituting sufficient provocation. State v. McDermott, supra. Whether the provocation was sufficient to cause an ordinary man to lose control of his actions and his reason is a question for determination by the trier of fact.
We agree with the rationale expressed .by the Supreme Court of Wisconsin when, discussing the sufficiency of provocation, that court said:
“. . . The test is objective, not subjective. The inquiry is not as to whether this defendant was angry at someone or about something at the time he shot and killed the deceased. The question to be asked is whether there existed such provocation as would have caused the state of mind claimed in an ordinary person under the same circumstances. . . .” Ameen v. State, 51 Wis. 2d 175, 183, 186 N.W.2d 206. (Emphasis supplied.)
Ritchey had been living in the same motel room with Tapscott for several days. He knew that Tapscott was a homosexual. Tapscott’s advances, while both vocal and physical, were not described as violent, powerful or threatening. There was no indication that the advances were sudden or unexpected, or that Ritchey had any prior mental aberration or had any prior history or experience which caused, contributed, or was germane to Ritchey’s reaction or to his actions. The trial court was not shown, nor has this court been made aware, that Ritchey is other than an “ordinary man.”
The issues of provocation and heat of passion, as presented here, were not ones which depended upon expert testimony, but ones which the jury could properly decide from the facts before it.
Under the circumstances we conclude that the trial court did not err in denying the request.
At trial, the defendant did not object to the instruction which he here seeks to challenge. Under our contemporaneous objection rule, now codified in the last paragraph of K.S.A. 22-3414 (3), the instruction may not be assigned as error unless it is clearly erroneous. That a jury may infer malice from the fact that a deadly weapon was used has abundant support in our cases. State v. King, 221 Kan. 69, 74, 557 P.2d 1262; State v. Wright, 219 Kan. 808, 814, 549 P.2d 958. The instruction was not clearly erroneous, and when considered in the light of all of the instructions given, it was entirely proper.
We find no error, and affirm the judgment. | [
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The opinion of the court was delivered by
Harman, C.:
This action arises as an aftermath to a proceeding in eminent domain wherein appellant’s application to share in the appraisers’ award for the property taken was denied by the trial court.
On July 23, 1969, the Urban Renewal Agency of Kansas City, Kansas, and the city of Kansas City, Kansas, filed in the trial court their petition in eminent domain wherein they sought to take a tract of realty for use in their Center City Urban Renewal Project. The property was described as three adjoining lots, with accreting strips, in the downtown business area of Kansas City. In the petition appellee Vincent V. Lane was named as owner of the tract; a bank, the board of county commissioners of Wyandotte county and the board of city commissioners were listed as lien-holders, and seventeen other individuals, businesses or companies were listed as “Parties in Possession.” The second party named in this latter group was appellant Naegele Outdoor Advertising Company. Appraisers were appointed to view the property and determine the damages resulting from the taking, and all interested parties, including appellant, were duly notified of the proceeding and of the appraisers’ hearing. Thereafter appellant appeared at the hearing and presented its claim. The record does not reveal the exact nature or extent of that claim to an interest in the property taken but we are told that appellant, pursuant to lease with the realty owner, had an outdoor advertising sign or billboard erected on a commercial building on the tract.
The appraisers filed their report September 12, 1969. This report followed typographically the form of the petition, listing the property taken by its legal description, then the names of the owner, the lienholders and the parties in possession. This latter group of names again included that of appellant. Following the names the report concluded thus:
“Fair market value of land and improvements: ............ $258,000.00
“Note: All permanent improvements within the taking area are considered to be real property with the exception of the Naegele Outdoor Advertising Company sign and other tenants’ signs, which were considered personal property.”
On September 12, 1969, a judge of the trial court approved the appraisers’ report and on the same day a copy of it was mailed to all parties including appellant. On September 23, 1969, another judge of the trial court entered a written order of distribution as to proceeds of the award made for the tract. The order first contained the recital that “the defendants Vincent V. Lane, et al, apply to withdraw the award made herein to them.” The order then contained findings with respect to the amounts due upon a mortgage and for taxes, and concluded as follows:
“It is Therefore by the Court Ordered that the Clerk of the District Court of Wyandotte County, Kansas pay out the amount of the award of the above described property as follows:
“To Wyandotte County Treasurer for taxes ............... $12,761.40
“To the Treasurer of the City of Kansas City, Kansas for special assessments .............................. 8,299.85
“To Exchange State Bank of Kansas City, Kansas .......... 115,631.40
“To Vincent V. Lane, et al.............................. 116,307.35”
The following day, September 24, 1969, the same judge modified the mandate portion of the order by manually striking with pen the phrase “et al.” following the name of appellee Lane. The judge dated and initialed this deletion. Appellant had no notice of any application for an order of distribution of the award or of any hearing thereon.
No appeal from the appraisers’ award was taken by anyone.
The next step in this proceeding came on December 15, 1969, with the filing in the trial court by appellant of an application entitled “Motion For Order For Recovery of Erroneous Payment and For Modification of Order of Distribution.” In this motion appellant recited the facts as generally outlined heretofore, stating that the appraiser's, as directed by the court, did not separately appraise its interest in the property taken, and further:
“6. That this defendant was not notified of any application to withdraw the award and was not notified of the time and place of any hearing on any application to withdraw said award; that this defendant owned an interest in the property taken and in the award made, and was entitled to notice and opportunity to be heard upon any application for an order of distribution.
“Wherefore, defendant Naegele Outdoor Advertising Company prays for an order of the court directed to defendant Vincent V. Lane ordering said defendant to repay to the clerk of the above entitled court the sum of $116,307.35, and for an order modifying the order of distribution heretofore entered and ordering payment to this defendant of the amount it is entitled to receive from the amount awarded by the appraisers.”
On January 23, 1970, the trial court overruled appellant’s motion, the rationale being that a motion for distribution of an appraisers’ award pursuant to what is now K. S. A. 1970 Supp. 26-517, must be filed within the thirty day time limit prescribed in what is now K. S. A. 1970 Supp. 26-508 for appealing from an award of the appraisers, and appellant’s motion was not therefore timely filed.
On February 20, 1970,'appellant filed its notice of appeal to this court, challenging the January 23, 1970, order. Although appellant has directed its notice of appeal to both of the condemning authorities as well as all others listed in the initial proceeding as parties in possession it has disclaimed the pursuit of any judgment or form of relief against them and has directed its claim for a share of the award solely against appellee Lane.
As presented, the appeal has both procedural and substantive aspects. Appellees first assert no appeal lies from the action of the trial court for the reason that until such time as an appeal is taken from the appraisers’ award the proceeding is not a judicial one but remains merely an inquisitive statutory proceeding. Appellees cite cases generally announcing this rule; however, we think those cases applying it present a context distinguishable from that at bar. For example, in Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373, upon which appellees principally rely, the condemnors filed their petition in eminent domain in the district court. In that same proceeding certain property owners objected to the taking of their land on the premise it was not necessary to the lawful purposes of the condemnors. The district judge, over the petitioners’ objection, heard testimony concerning the necessity for the taking and petitioners’ authority to take the particular tracts. The judge approved the petition as to the entire project except for three lots owned by the objecting landowners, which were specifically ordered deleted from the project. Upon the condemning authorities’ appeal this court reversed that part of the judgment, holding:
“A condemnation proceeding instituted under the 1963 Eminent Domain Procedure Act (K. S. A. 26-501, et seq.) remains a special statutory proceeding. Prior to the taking of an appeal from the award of the commissioners, it is not judicial in nature. Such a proceeding does not provide a forum for litigation of the right to exercise eminent domain nor determine the extent of said right.” (Syl. If 1.)
Appellant here framed its application for relief pursuant to the then newly enacted terms of Section 3, Chapter 196, Laws, 1969, now K. S. A. 1970 Supp. 26-517, which provides:
“In any action involving the condemnation of real property in which there is a dispute among the parties in interest as to the division of the amount of the appraisers’ award or the amount of the final judgment, the district court shall, upon motion by any such party in interest, determine the final distribution of the amount of the appraisers’ award or the amount of the final judgment.”
This 1969 enactment plainly authorized the district court to act as a forum for the resolution of disputes among the parties in interest as to the division of the amount of an award, either as made by the appraisers or upon final judgment after appeal. The determination of such disputes is judicial work, adversary in nature, as contrasted with the usual type of inquest or inquisition where the inquiry is largely or wholely in a nonadversary setting. We think the rule announced in Decker and like cases inapplicable to a proceeding authorized by 26-517 of our eminent domain procedure act. Accordingly, we hold that the function placed upon a district court in determining final distribution of the appraisers’ award in an eminent domain proceeding is judicial in nature so that an appeal lies to this court from the action taken.
Appellees also point out the appeal actually taken by reason of the February 20, 1970, notice was only from the January 23, 1970, order denying relief under appellant’s motion and that there was no timely appeal taken either from the appraisers’ award or from the September 23 or 24, 1969, order of distribution, and they contend appellant is therefore barred from review here. We treat the latter aspect first. Our eminent domain procedure act provides in pertinent part:
“Appeals to the supreme court may be taken from any final order under the provisions of this act.” (K. S. A. 26-504.)
The January 23, 1970, order was a final order denying relief after appellant’s plight had been called to the trial court’s attention and was specifically appealable under the foregoing statute and appeal from it was timely perfected. K. S. A. 60-2103 (i), also relating to appeals to this court, provides:
“Intermediate rulings. When an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains was made more than thirty (30) days before filing of the notice of appeal shall not prevent a review of the ruling.”
Hence we see no impediment to full review of all matters at issue either for want of timely filing of notice of appeal or specification of the order appealed from.
We turn now to the principal issue presented upon the appeal. Appellant relies upon the provisions of 26-517 for its request for relief and contends first that no time limitation is prescribed therein and therefore the only limitation which should be read into the statute is that of reasonableness. It points out that 26-508, which does contain a thirty day limit for action, relates only to an appeal from the award allowed by the appraisers based upon dissatisfaction by any party (including the condemnor) with the amount of the award, while 26-517 relates to determination of disputes between co-owners as to distribution or division of the amount of award. Appellant further points out the appraisers are not required to make separate awards to owners having separate interests in property being condemned and that they did not do so here but rather awarded damages in a lump sum for everything taken. Appellant asserts it should have had a reasonable time in which to act under 26-517 after it had notice of a dispute as to distribution.
Appellees counter with the assertion appellant had all the notice appellees had and should have moved out within thirty days by way of appeal under 26-508 if it was dissatisfied in any way with the award. Appellees further contend appellant was made fully aware by the note appended to the appraisers’ award that it had nothing coming in the proceeding and its only remedy was by way of appeal from the award. Parenthetically, we assume this may well have been the theory upon which the district judge on September 24, 1969, deleted on the distribution order the abbreviated designation for the names of the other parties listed in the proceedings as being in possession of the property.
We agree with appellant’s contentions. It must be kept in mind appellant’s fuss is with appellee Lane, not with the condemnors, and its failure to appeal from the appraisers’ award evinces no more than satisfaction with the total amount of damages awarded. The appraisers’ report did state appellant’s sign was treated as personal property for which nothing was allowed. Appellant evidently was allowed to and did remove the physical property comprising the sign and it is out of the picture. Personal property, in and of itself, of course, is not subject to condemnation. But appellant here claims a leasehold interest in the property taken, beyond the physical billboard. Nothing in the award purported to, or did, tell appellant that damage for that interest was disallowed or that it was excluded from sharing in the award. In Phillips Petroleum Co. v. Bradley, 205 Kan. 242, 468 P. 2d 95, we held that a tenant for years under a written lease is an owner of property within the meaning of that term as used in our condemnation statutes and is entitled to compensation if his leasehold estate is damaged by the exercise of eminent domain and that where there has been a total taking of leased premises by eminent domain, the lessee’s right to share in the award becomes vested at the time of the taking, absent an agreement in the lease to the contrary. There we also recognized that where leased property is taken by eminent domain, it is ordinarily valued as though held in a single ownership rather than by separately valuing the interests of the lessor and lessee according to their respective interests, the condemnor having no interest in the latter proceeding.
The provisions of 26-508 and 26-517 relate to different forms of relief and we are unable to read into the latter the thirty day-time limitation prescribed in the former. Another section, K. S. A. 26-510, permits the defendants upon order of the judge, and without prejudice to the right of appeal, to withdraw the amount paid to the court clerk as their interests are determined by the appraisers’ report, in which section no time limit is prescribed. As a general proposition, where no express provision for notice is made in a statute under which substantial rights may be determined, if there be nothing in the statute which prevents notice from being given, the requirement of reasonable notice will be implied (see Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239). Appellant here had no notice of any dispute as to its right to participate in the award at the time the distribution orders were entered on September 23 and 24, 1969, and it had no notice of those hearings as it was entitled to have before its rights were summarily foreclosed.
We hold that a party named as a party in interest in the appraisers’ award in an eminent domain proceeding has a reasonable time, after it has notice of dispute as to division of the award, within which to apply for an order of distribution under 26-517 and is entitled to reasonable notice before being foreclosed by an order of distribution from participation in the award. Appellant here had no such notice and it made timely application for relief.
The judgment must be reversed and remanded for further proceedings in the trial court for determination of the dispute between appellant and appellee Lane as to their respective interests in the property taken and the division, if any, of the amount of the appraisers’ award. However, we see no reason for ordering return by appellee Lane to the clerk of the district court of any specific sum of money as though it were the res of the action as requested by appellant in its motion. The action may now proceed as an ordinary one for money judgment between the parties, to be de cided by the trial court as may be just and proper upon further disclosure of the relevant facts.
The judgment is reversed for further proceedings in harmony with the views expressed herein.
APPROVED BY THE COURT.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
White Lakes Shopping Center, Inc. (appellant) brought this action in the district court to recover $77,000 which it had paid Jefferson Standard Life Insurance Company (appellee) in connection with a $3,850,000 written loan commitment agreement. The claim was denied in the trial court and this appeal followed. A brief recitation of background facts is necessary.
White Lakes desired to build a modern shopping center in Topeka, Kansas. White Lakes approached a mortgage brokerage company, Kansas City Mortgage Company, to locate financing. The brokerage company found that Jefferson Standard was interested in making a loan for construction of the shopping center. White Lakes then submitted a loan application to Jefferson Standard asking for $4,000,000 in “end financing.” (We are advised the term “end financing” denotes the long term mortgage loan to be given on completion of construction as distinguished from interim or temporary financing used to make payments as construction progresses.) After a personal investigation of the project planned, Jefferson Standard prepared and submitted to White Lakes the first written loan commitment for $3,500,000 on September 5, 1963. The commitment agreement obligated Jefferson Standard to make the $3,500,000 loan to White Lakes on completion of the project on or before May 31, 1965.
The loan for “end financing” guaranteed by the commitment agreement was to be secured by a first mortgage on the completed shopping center property. The mortgage was to extend for a term of 22 years. Interest under the mortgage was to be paid at a rate of 5.75 percent per annum. The commitment agreement contained a provision for an advance payment by White Lakes to Jefferson Standard which payment is the subject of the present action. The payment was made and the commitment agreement'was accepted and signed by White Lakes. At the request of White Lakes the amount of the commitment was increased on two occasions. Separate commitment agreements covering the increases were executed. These contained a similar binder provision requiring additional advance payments.
A total of $77,000 was paid to Jefferson Standard under the provision common to all three commitment agreements. This provision for advance payment reads:
“. . . Upon the loan being closed this $77,000 deposit is to be refunded promptly; but if the loan is not closed in accordance with the terms of this alternate commitment, the $77,000 deposit is to be retained permanently by the Jefferson Standard Life Insurance Company as liquidated damages. . . T
In passing, we note the trial court held that the loan commitment agreement was complete and unambiguous. We agree. Appellant fails to point to any specific provisions to the contrary.
The final commitment agreement for $3,850,000 was dated June 29, 1964, and accepted by White Lakes on July 9, 1964. Jefferson Standard refused further requests to increase the amount of the •commitment. Shortly thereafter White Lakes, through the mortgage brokerage company, located another life insurance company which eventually furnished “end financing” of $4,250,000 for the shopping center. White Lakes now sues to recover the $77,000 paid to Jefferson Standard under the loan commitment agreement.
White Lakes filed the action making two claims in separate •counts of the petition. The claim in count one is based upon a contention that the provision for payment of the $77,000 was a penalty provision rather than a provision for liquidated damages and that the amount paid should be returned to them. The claim in count two is based upon a contention that the $77,000 was paid under an agreement with Jefferson Standard to meet the “ultimate necessary financing as would be required” by White Lakes and that Jefferson Standard’s refusal to do so entitled White Lakes to a return of the money under a theory of unjust enrichment arising from an impossibility of performance.
After the discovery of evidence had been completed by both parties Jefferson Standard filed a motion for summary judgment against count two of the petition. The motion was sustained. Error is claimed thereon.
In entering summary judgment against White Lakes on count two the trial court found, (1) there was no evidence discovered tending to support a promise to loan an amount sufficient to meet the ultimate financial needs of White Lakes to complete the project, (2) that any evidence to support such a promise would be inadmissible under the parol evidence rule as tending to change the terms of the unambiguous written agreement, (3) that there was no evidence discovered to support any legal theory of impossibility of performance,' and (4) there was no genuine issue as to any material fact and that appellee was entitled to judgment as a matter of law on count two of the petition.
These findings and the judgment as to count two are supported by the record. The written loan commitment agreement is complete, unambiguous and free from uncertainty. A written contract which is complete, unambiguous and free from uncertainty cannot be varied or changed by parol evidence of prior or contemporaneous agreements or understandings in the absence of fraud. (Williams v. Safeway Stores, Inc., 198 Kan. 331, 338, 424 P. 2d 541.) When no fraud is alleged and a contract is complete and unambiguous, evidence of negotiations which culminated in a written contract is not admissible for the purpose of varying the terms of the written contract (Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P. 2d 23.)
Impossibility of performance, recognized in the law as a basis for relief from contractual obligations, is not of the nature contended for by appellant. When one agrees to perform an act possible in itself he will be liable for a breach thereof although contingencies not foreseen by him arise which make it difficult, or even beyond his power, to perform and which might have been foreseen and provided against in the contract.
The impossibility which will, or may, excuse the performance of a contract must exist in the nature of the thing to be done. It must not exist merely because of the inability or incapacity of the promisor or obligor to do it. (17A C. J. S., Contracts, §463 (1), P. 610; 17 Am. Jur. 2d, Contracts, § 506, p. 987; State Highway Construction Contract Cases, 161 Kan. 7, 166 P. 2d 728; Winfrey v. Automobile Co., 113 Kan. 343, Syl. 4, 214 Pac. 781.)
In Winfrey v. Automobile Co., supra, it was said:
“Where one agrees to perform an act possible in itself he will be liable for a breach thereof although contingencies not foreseen by him arise which make it difficult or even beyond his power to perform and which might have been provided against in the agreement.” (Syl. f 4.)
The impossibility of performance in this case existed, if at all, by reason of the inability of White Lakes to complete construction at a cost within the loan commitment it had previously secured from Jefferson Standard. This is not the impossibility recognized in the law.
We turn now to count one. The issues presented therein were submitted to the court on a stipulation of the parties as a court trial on the pleadings, depositions and the briefs of both parties. A contention of the appellant to the contrary is not supported by the record.
The issues raised on appeal as to count one depend upon the nature of the provision for payment of the $77,000. Was it a penalty provision or one for liquidated damages?
The trial court, after considering the loan commitment agreement and the deposition testimony, found the provision for the advance payment by White Lakes was a valid provision for liquidated damages and that it was not a penalty provision. In addition the court found (1) that White Lakes had willfully breached the contract, (2) that it had failed to prove the $77,000 was an excessive amount for the damages resulting from the breach, (3) that there was no showing unjust enrichment would result from enforcement of the provision, and (4) that the White Lakes’ claim should be denied.
Under certain circumstances provisions similar to the present one have been enforced by this court. In such cases the advance payment is determined to have been paid under a proper agreement for liquidated damages. The amount of damages has been agreed upon in advance and such agreement forecloses any need to prove the actual damages resulting from the breach. (Gregory v. Nelson, 147 Kan. 682, 78 P. 2d 889; Owen v. Christopher, 144 Kan. 765, 62 P. 2d 860; Kansas City v. Industrial Gas Co., 138 Kan. 755, 28 P. 2d 968; City of Topeka v. Industrial Gas Co., 135 Kan. 646, 11 P. 2d 1034, cert. den. 287 U. S. 658, 77 L. Ed. 568, 53 S. Ct. 121.)
However, when a provision for forfeiture of the advance payment is determined by the court to be a penalty provision, a punishment for default, without regard to actual damages resulting on a breach of the contract, it is held to be unenforceable. In such cases the nondefaulting party is left to a recovery of such actual damages as he can prove. (Heatwole v. Gorrell, 35 Kan. 692, 12 Pac. 135; Land Co. v. Barton, 51 Kan. 554, 33 Pac. 317; Evans v. Moseley, 84 Kan. 322, 114 Pac. 374; Kuter v. Bank, 96 Kan. 485, 152 Pac. 662, modified 97 Kan. 375, 154 Pac. 1009; Metz v. Clay, 101 Kan. 45, 165, Pac. 809.)
The rules for determining the true nature of such an advance payment provision are set forth in Beck v. Megli, 153 Kan. 721, 114 P. 2d 305, as follows:
“In determining whether contractual agreements are to be treated as penalties or as liquidated damages, courts look behind the words used by the contracting parties to the facts and the nature of the transaction. The use of the terms ‘penalty’ or “liquidated damages’ in the instrument is of evidentiary value only. It is given weight and is ordinarily accepted as controlling unless the facts and circumstances impel a contrary holding. . . . The instrument must be considered as a whole, and the situation of the parties, the nature of the subject matter and the circumstances surrounding its execution taken into account. There are two considerations which are given special weight in support of a holding that a contractual provision is for liquidated damages rather than a penalty — the first is that the amount stipulated is conscionable, that it is reasonable in view of the value of the subject matter of the contract and of the probable or presumptive loss in case of breach; and the second is that the nature of the transaction is such that the amount of actual damage resulting from default would not be easily and readily determinable. . . .” p. 726.
Let us apply these rules to the present case. The provision in the present contract employed the term “liquidated damages.” Although not conclusive this should be given some weight. No claim is made that the amount stipulated (2% of the amount of the loan committed) was unconscionable. No contention is made that a lesser percentage is commonly required. An officer of the mortgage brokerage company testified that the percentage was within the customary percentages required, i. e., one-half of one percent to three percent. In this case the original commitment was issued on September 5, 1963, and the loan was to be closed in May, 1965, a year and eight months later. The commitment provided for a locked-in interest rate of 5.75 percent per annum on the long term mortgage. There was evidence that during construction of the project Jefferson Standard could be expected to make thorough inspections of the work as it progressed to insure itself of lasting construction. Jefferson Standard had its principal place of business located in Greensboro, North Carolina, and would have substantial expenses of transportation and time spent during this construction period. It would incur substantial legal and professional services in examining, evaluating and approving long term leases which would be assigned to it to assure payment of the loan. The company’s financial house had to be kept in order during the period to assure that $3,850,000 would be available on completion. We need not recite all evidence introduced on this point. Suffice it to say, the court’s finding that the amount was reasonable is supported by substantial evidence in the record.
It is contended this was an adhesion contract and the provision for liquidated damages was not agreed upon “at arm’s length.” The loan commitment was obtained by White Lakes through a mortgage brokerage company with which it chose to deal and upon which it relied. Obviously the parties to this transaction which involved approximately four million dollars were dealing at arms length. No change in the percentage required was requested. It cannot be denied that White Lakes understood and paid this amount without compulsion other than a need for a commitment. The commitment for “end financing” made it possible for White Lakes to obtain interim construction financing from other sources.
The other consideration which enters into a determination of a liquidated damages provision is whether the elements and the amount of actual damage resulting from a breach are difficult to determine. When the damages on breach are more involved and difficult to establish the situation lends itself to an agreed provision for liquidated damages which will be approved by the court. Here the elements of damage are varied in nature and the actual amount would be difficult to establish with certainty and particularity.
It is suggested that we have no Kansas cases which cover like provisions in loan commitment agreements and that the rules for determination set forth herein should not apply to loan commitment agreements. The rules set forth in Beclc v. Megli, supra, are applicable under the general law relating to contracts. We see no reason for applying different rules to loan commitment agreements. Liquidated damage provisions in loan commitment agreements are quite generally approved. Today the commitment fee has become a fact of financial life. A commitment to make the end loan is necessary for the construction as it progresses. (See Boston Road Shopping Center, Inc., v. Teachers Insurance and Annuity Association of America, 13 A. D. 2d 106, 213 N. Y. S. 2d 522, aff’d 11 N. Y. 2d 831, 227 N. Y. S. 2d 444, 182 N. E. 2d 116; Goldman v. Connecticut General Life Insurance Company, 251 Md. 575, 248 A. 2d 154, and Chambers & Co. v. Equitable Life Assurance Society, 224 F. 2d 338 [5 C. A. 1955].)
In determining whether a provision in a loan commitment agreement for payment of a stipulated amount in case of breach is to be construed and enforced as a provision for “liquidated damages” or as a “penalty,” the terms used by the parties are given evidentiary weight, but are not necessarily controlling, and coruts will look to all the facts and circumstances of the transaction.
Unless invalid for other reasons, advance payments to be forfeited in event of a breach between parties to a loan commitment contract should be held liquidated damages, (1) if the amount is reasonable in view of the value of the subject matter and of the probable and presumptive loss in case of breach, and (2) if the amount of actual damages in case of breach would not be easily and readily determinable.
We conclude the trial court properly held the $77,000 advance payment was made under a binding agreement for liquidated damages.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an action by a real estate broker to recover a commission for the sale of a residence. The case was tried to the court and judgment was rendered for plaintiff in the sum of $3,300.00, the amount of the commission claimed.
Defendant owner has appealed charging primarily that plaintiff did not put defendant seller and the purchaser in communication with each other, and thus the court erred in finding plaintiff to be the procuring cause of the sale.
On February 7, 1969, plaintiff Holloway solicited and obtained from the defendant an “open” listing for the sale of a residence located at 562 Wetmore Court, Wichita.
The listing was in the form of an oral contract providing for a commission of six percent of the sale price listed at $55,000.00.
On May 17, 1969, Elaine Sparks, a real estate agent employed by plaintiff, showed the property to Mr. and Mrs. Lorris V. Bell and discussed the price and loan balance with them. The Bells indicated interest in buying the property, but did not make an offer. Mrs. Sparks also told the Bells that Mr. Forshee, the owner, lived next door and that the house in which he lived was also for sale. Two days later, on Monday, May 19, Mrs. Sparks called the Mid Kansas Federal Savings and Loan to check on the existing mortgage of the subject property and also to inquire concerning financing and interest rates. The next day Mrs. Sparks telephoned the Bells and inquired of Mrs. Bell if she could help with the financing. Mrs. Bell informed Mrs. Sparks that Mr. Bell was already checking into financing. Mrs. Sparks testified she had shown the property to other people and she believed Mr. Forshee was aware that she had shown the property.
On May 23, 1969, Mrs. Sparks learned the property had been sold; she and plaintiff Holloway confronted Forshee who informed them that he had sold the house to Bell and that Bell had not disclosed that he had been shown the house by Mrs. Sparks. Mrs. Sparks, Holloway and Forshee then proceeded to the Bell home; when confronted by them, Mr. Bell admitted that Mrs. Sparks had shown the property to him and Mrs. Bell.
Thereafter, plaintiff filed his petition initiating this lawsuit. Defendant answered by alleging that plaintiff did not produce Bell as a ready, willing and able buyer, and that if plaintiff did, he was not the procuring cause of the sale being consummated. Defendant further alleged as an affirmative defense that neither plaintiff nor his agent notified defendant that they had procured Bell as a buyer and such lack of notification constituted negligence on the part of plaintiff.
Defendant also filed a third party complaint against Bell alleging fraud and misrepresentation and praying for judgment in the amount of any judgment recovered by plaintiff against the defendant and for punitive damages in the amount of $10,000.00. The third party complaint was voluntarily dismissed by plaintiff before the trial. We were informed by defendant’s counsel on oral argument that an arrangement had been arrived at between Forshee and Beil which resulted in the dismissal of the third party complaint. Counsel who had represented Bell as third party defendant now represents defendant Forshee on appeal.
After hearing the evidence of both parties, the trial court found that plaintiff was the efficient and procuring cause of the sale. The trial court further found that under all of the circumstances and, in particular, the brief period of time intervening between the showing of the house by Mrs. Sparks and the purchase thereof by Bell, it could not be said that plaintiff was guilty of negligence, as a matter of law, in failing to notify defendant of the showing to Bells.
Defendant’s first two points on appeal are based upon the claim that plaintiff did not put Forshee and the Bells in communication with each other. Defendant says that a broker cannot be the procuring cause of a sale nor be said to have produced an able and willing purchaser unless he has put the seller and buyer in communication with each other.
Defendant cites the general rule stated in our holding in Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305, which reads:
“Where a real estate broker is employed to find a purchaser for land, the general rule is that he is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal.” (Syl. f 1.)
The rule quoted is the well-established law of this jurisdiction but it does not support defendant’s position here. We stated in Hiniger:
“. . . [T]he appellate question is whether there is any evidence to sustain a finding that the efforts of the real estate broker were the procuring cause of the sale.” (p. 156.)
It is in this perspective that we must consider the instant appeal.
There is evidence that Mrs. Sparks, the employee of plaintiff, introduced the Bells to the particular residential area for the first time, showed them the residence in question for the first time, established the price, discussed mortgage money and interest rates, identified the owner and pointed out his place of residence. Within two days after he was shown the house by Mrs. Sparks, Bell contacted Forshee and within six days he had purchased the house and moved in. It is true that Mrs. Sparks did not introduce Bell and Forshee face to face, but she did identify Forshee as the owner and made his whereabouts known to Bell. It is not necessary that a broker bring the parties together face to face. In Owen v. Spangler, 111 Kan. 484, 207 Pac. 772, we held:
“Where a real-estate agent is employed to find a purchaser ready, able and willing to buy on terms acceptable to the seller, it is not required in order to earn his commission that he bring the parties together personally or introduce them, nor is it the law that in order to earn his commission he must procure a binding contract signed by the purchaser.” (Syl. ¶ 1.) (Emphasis supplied.)
Even though the broker’s contract here was an “open” listing, if plaintiff were otherwise entitled to a commission, the defendant could not defeat that right by closing the deal himself. In the recent case of Martin v. Weidman, 199 Kan. 716, 433 P. 2d 459, it was held:
“If a real estate broker is otherwise entitled to a commission, the principal cannot defeat that right by closing the deal himself.” (Syl. ¶ 2.)
We believe the actions of Mrs. Sparks constitute ample evidence to support the findings of the trial court.
Defendant next contends the trial court erred in not finding plaintiff guilty of negligence, as a matter of law, in failing to notify defendant that Bell was a prospect prior to the sale.
On this point the trial court commented:
“I would also comment that in light of your argument I think there was hardly time in this instance for them to communicate anything to Mr. Forshee, because Mr. Bell was in contact with him almost immediately after having been shown the property, at least, according to the testimony, within a couple of days, and even while the broker in this instance, the plaintiff, was still gathering financing information to transmit to the prospective purchaser, Mr. Bell.”
The court further found:
“I think that there is no negligence as you contend due to extremely short period of time between the time that they were shown the house by the broker and the time that the prospective purchaser, himself, contacted the seller.”
Whether a broker was the procuring cause of a purchase is ordinarily a question of fact and must be determined in the light of all the facts and circumstances leading up to and including any final negotiations between the vendor and purchaser. (Martin v. Weidman, supra; Hiniger v. Judy, supra; Patee v. Moody, 166 Kan. 198, 199 P. 2d 798; DeYoung v. Reiling, 165 Kan. 721, 199 P. 2d 492; and Grimes v. Emery, 92 Kan. 911, 141 Pac. 1002.) Likewise, any issue concerning negligence on the part of the broker is to be determined by the trier of facts.
In Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135 (opinion on rehearing) the identical issue was before this court. There the broker, as in the instant case, failed to notify the vendor that the property had been shown to the prospect who ultimately purchased the property directly from the vendor. In closing the deal with the vendor, as in this case, the purchaser denied that he had been shown the farm by the plaintiff broker. In the opinion the court noted that the controversy might have been avoided if the broker had telephoned the vendor; nevertheless, the court held that under all the circumstances the question whether the broker was the procuring cause of the sale was properly a jury question and it was not error to overrule defendant’s demurrer to the evidence. In a dissenting opinion it was argued that the jury should have been more specifically instructed on the question whether the broker unjustifiably concealed the fact that the ultimate purchaser was his customer. In the instant case, the trial court recognized and dealt with the claimed negligence on the part of plaintiff. There is no evidence of overt misconduct or unjustifiable concealment on the part of plaintiff in the case at bar. Bell admitted that he contacted Forshee on the Monday following the Friday on which he was shown the property by Mrs. Sparks, and that when Mrs. Sparks called him on Tuesday or Wednesday he told her he was not interested in the property, although he was at the time completing negotiations with Forshee. It should also be noted that when Mrs. Sparks and plaintiff learned of the sale they immediately notified defendant, on the same day the sale was consummated, that Bell was their customer. Under such circumstances, it cannot be said the trial court erred in finding no negligence on the part of plaintiff in failing to notify defendant of the showing to Bell.
We have examined other points raised by defendant and find no merit therein.
The judgment is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Blue Star Supper Club, Inc., is a nonprofit Kansas corporation with its place of business at 4545 South Hydraulic in Wichita. The club holds a class A private club license issued under the provisions of K. S. A. 1971 Supp. 41-2601, et seq., commonly known as the Private Club Act (sometimes referred to herein as the act).
On August 19, 1969, the city of Wichita adopted Ordinance No. 30-747 requiring that the premises of any club licensed under the act be closed to members and to the public between the hours of 3 a. m. and 9 a. m. on any day other than Sunday and from 3 a. m. to 12 noon on Sundays. The present action is brought by the club for a declaratory judgment declaring the ordinance void and for an injunction precluding the city from enforcing the ordinance. Judgment was entered in the city’s favor and the Blue Star Supper Club has appealed.
The club presents three points: (1) The ordinance conflicts with K. S. A. 1971 Supp. 41-2614 and hence is void under K. S. A. 41-208 and K. S. A. 1971 Supp. 41-2631. (2) The ordinance is unreasonable, arbitrary and capricious and therefore void. (3) The ordinance is not a valid exercise of the city’s police power. The latter two points present basically the same issue and will be considered together.
Point number one is two pronged. First, is the ordinance void as being in conflict with 41-2614? This statute provides that no licensed club shall allow the serving, mixing or consumption of alcoholic liquor on its premises between 3 a. m. to 9 a. m. on weekdays and from 3 a. m. to noon on Sundays. K. S. A. 1971 Supp. 41-2631 provides no city shall enact an ordinance in conflict with the provisions of the Private Club Act and any ordinance conflicting with that act shall be void.
A similar situation was disclosed in Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P. 2d 183. In that case the city of Leavenworth adopted an ordinance prohibiting licensed clubs from allowing the serving, mixing or consumption of alcoholic liquor between 1:30 a. m. and 9 a. m. on weekdays and from 1:30 a. m. to 12 noon on Sundays. The plaintiffs contended in that case that the Leavenworth ordinance conflicted with K. S. A. 1971 Supp. 41-2614. We rejected that contention and held that 41-2614 gave the plaintiffs in that case no vested right to serve or permit the mixing or consumption of alcoholic drinks -until the hour of 3 a. m.; that the limitation contained in the ordinance merely added to or enlarged the limitation imposed by the statute and hence was not contradictory or conflicting in a legal sense. In this connection see, also, Clemons v. Wilson, 151 Kan. 250, 98 P. 2d 423.
We believe the rationale underlying the decisions in Clemons and Leavenworth is clearly applicable here. The Wichita ordinance does not conflict with K. S. A. 1971 Supp. 41-2614. While the statute relates to the horns during which alcoholic liquor may be served, mixed or consumed on licensed club premises, the ordinance simply imposes closing hours. Those hours do not interfere with the time limitations of the statute. Although the hours set by ordinance for closing coincide with the hours during which the serving, mixing or consumption of alcoholic liquor is prohibited by statute, this coincidence does not imply that the statute and ordinance are at cross purposes, or that the ordinance contravenes the provisions of the statute. There is no disharmony between the two enactments; they may coexist with amity.
But the plaintiff contends that the ordinance is void as contravening the pre-emptive provisions of K. S. A. 41-208. This statute was enacted in 1949 as part of the Kansas Liquor Control Act and reads as follows:
“The power to regulate all phases of the control of the manufacture, distribution, sale, possession, transportation and traffic in alcoholic liquor and the manufacture of beer regardless of its alcoholic content, except as specifically delegated in this act, is hereby vested exclusively in the state and shall be exercised as provided in this act. No city shall enact any ordinance in conflict with or contrary to the provisions of this act and any ordinance of any city in effect at the time this act takes effect or thereafter enacted which is in conflict with or contrary to the provisions of this act shall be null and void. Nothing contained in this section shall be construed as preventing any city from enacting ordinances declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city and prescribing penalties for violation thereof, but the minimum penalty in any such ordinance shall not exceed the minimum penalty prescribed by this act for the same violation, nor shall the maximum penalty in any such ordinance exceed the maximum penalty prescribed by this act for the same violation.”
In our opinion the pre-emptive provisions of the foregoing statute are not as broad or as inconclusive as the plaintiff suggests. By its own terms, the statute applies only to the act of which it is a part— the Liquor Control Act of 1949 (L. 1949, ch. 242). The passage of the Liquor Control Act closely followed approval by Kansas voters of a proposal to amend Article 15, Section 10, of the Kansas Constitution which at that time prohibited the manufacture and sale of intoxicating liquors. As amended, Article 15, section 10, now empowers the legislature to prohibit intoxicating liquors in certain areas, to regulate, license and tax the manufacture and sale of intoxicating liquors and to regulate the possession and transportation of the same.
It occurs to us that what the legislature intended by including the pre-emptive provisions of 41-208 as part of the Liquor Control Act was to give the state exclusive power to control and regulate the traffic in alcoholic liquor and the manufacture of beer. To such end it was provided that the power to regulate and control the “manufacture, distribution, sale, possession, transportation and traffic in alcoholic liquor and the manufacture of beer regardless of its alcoholic content” should be vested exclusively in the state. This pre-emptive clause contains no reference whatever to the consumption of alcoholic liquor, nor were any restrictions placed upon consumption in the entire Liquor Control Act, with one exception. That exception is found in section 82 of that act, K. S. A. 41-719, where it was made unlawful for any person to drink or consume alcoholic liquor upon the public streets, alleys, roads or highways, or in beer parlors, taverns, pool halls or places to which the general public had access. (Subsequent amendments make it possible for certain public property, in limited cases, to be exempted from the restrictions of this statute. See K. S. A. 1971 Supp. 41-719.)
It was not until the year 1965, some sixteen years after the Liquor Control Act was adopted, that the legislature again turned its attention to the consumption of alcoholic beverages and enacted the Private Club Act (L. 1965, ch. 316). This act deals with places where alcoholic liquor may be served and consumed. In section 1 of the act (now K. S. A. 1971 Supp. 41-2601 [b] [1]) a club is defined as “an organization licensed hereunder to which the club members shall be permitted to resort for the purpose of consuming alcoholic liquor.” Section 2 of the act, now K. S. A. 1971 Supp. 41-2602, specifically relates to consumption. This statute reads:
“The consumption of alcoholic liquor by any person shall be authorized in this state:
“(c) Upon private property by those occupying such private property as an owner or as the lessee of an owner and by the guests of said owner or lessee provided that no charge is made by the owner or lessee for the serving or mixing of any drink or drinks of alcoholic liquor or for any substance comixed with any alcoholic liquor; and if no sale of alcoholic liquor in violation of K. S. A. 41-803 takes place on said private property;
“(b) at a club licensed by the director under the provisions of this act;
“(c) in a lodging room of any hotel, motel or boarding house by the occupant of said lodging room or his guests provided the occupant is not engaged in a sale of liquor in violation of K. S. A. 41-803; and if the occupant makes no charge for (1) serving or mixing any drink or drinks of alcoholic liquor, or (2) for any substance comixed with any alcoholic liquor;
“(d) in a private dining room of a hotel, motel or restaurant when said dining room is rented or made available on a special occasion to an individual or organization for a private party and if no sale of alcoholic liquor in violation of K. S. A. 41-803 takes place at said private party.”
A third section of the Private Club Act, now appearing as K. S. A. 1971 Supp. 41-2603, declares that consumption of alcoholic liquor at any place other than those provided in the act shall be deemed to be consumption in a place to which the general public has access.
The foregoing provisions of the Private Club Act clearly indicate to us that its purpose is to regulate and control the consumption of alcoholic liquor, not the liquor traffic. In our opinion the act does not encroach upon those areas which the legislature intended to pre-empt for exclusive state action.
In concluding that the regulation and control of the consumption of alcoholic liquor is not an area exclusively reserved by the state we believe it is significant that when the legislature adopted K. S. A. 1971 Supp. 41-2631 as a component part of the Private Club Act, and forbade therein the enactment of any ordinance conflicting with the act, it did not include a pre-emptive provision. We cannot view the omission as unintentional. The legislature was perfectly aware of the method by which it could have vested exclusive control and regulation of liquor consumption in the state had it so intended, as is evidenced by its inclusion of the pre-emptive provision contained in K. S. A. 41-208.
We turn to the other issue. Is the Wichita ordinance void as being an unreasonable, arbitrary and capricious exercise of the police power?
The regulation of an occupation, trade or business is widely held to be a legitimate exercise of the police power, where the unrestricted pursuit of the same might adversely affect the public health, safety, morals or general welfare. This principle presupposes that the regulation is reasonable, is not arbitrary, and that it bears a logical connection with the objectives to be accomplished. (56 Am. Jur. 2d, Municipal Corporations, §§471, 472, pp. 520-523.) The general subject was explored by this court in Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363, where a challenge was directed to an ordinance enacted by the governing body of Kansas City, Kansas requiring a license for the operation of pinball machines in that city. In the course of its opinion the court said:
“Almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, or involve an injury to a person, or deprive a person of property within the meaning of the Fourteenth Amendment to the Constitution of the United States. Nevertheless, it is well settled that an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public, and if it is not unreasonable or arbitrary.
“Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.
“In determining whether an ordinance which has the effect of prohibiting pinball machines by conditions imposed upon tire issuance of a license is reasonable, and whether it has a substantial relationship to the health, morals, safety or general welfare of the people of a municipality, the court may weigh the benefit to those people affected by the elimination of such devices against the benefits in having such devices available for use by those people, and the interests of the appellees as the owners of those devices.” (p. 302.)
In the Grigsby case the court reached the conclusion that the ordinance was valid and that its enactment was within the legislative power of the city.
Rules relating to the regulation of hours of business are found stated in 56 Am. Jur. 2d, Municipal Corporations, Etc., § 474, p. 526:
“No generalization can safely be stated as to the validity and reasonableness of municipal regulations of the time during which businesses may be conducted. The result depends largely on the nature of the business sought to be regulated.
“Regulations by municipalities of the hours during which specified businesses may be conducted have been declared reasonable and constitutional where there is a patent relationship between the regulations and the protection of the public health, safety, morals, or general welfare, such as where the business is of such a character that the public health or morals are likely to be endangered if it is carried on during the late hours of the night. . . .”
It may be argued that the Blue Star Supper Club is not a business within the usually accepted meaning of that term, and it must be conceded there are points of difference. We believe, however, there is sufficient analogy between the two for purposes of comparison. Especially would there seem to be points of similarity between a licensed private club and an ordinary restaurant where the former dispenses both food and drink, as is true in the case before us.
The plaintiff complains that the city ordinance is unreasonable, arbitrary and capricious, in that it does not apply to commercial twenty-four hour restaurants or truck stops. We do not view the classification made by the ordinance as being unreasonably discriminatory. Premises on which alcoholic liquor is available for consumption as late as 3 a. m. can well be said, in our estimation, to occupy a different status than do those where more innocuous beverages alone are available for those who thirst. The ordinary commercial twenty-four hour dining stop does not provide its patrons with facilities for having a snifter with their late meals. Although the record before us reveals no infractions of K. S. A. 1971 Supp. 41-2614, so far as after-hours consumption of liquor is concerned, the potential for violation appears obvious. At the very least we feel safe in saying there is greater opportunity for one, so inclined, to slake his post 3 a. m. thirst at a private club than at a common commercial all-night eatery.
The question of reasonable classification came before this court in Tuloss v. City of Sedan, 31 Kan. 165, 1 Pac. 285, and we believe it was properly answered in that case. The city had adopted an ordinance providing for the levy and collection of a license tax on merchants. Under the ordinance an annual license fee of eighty dollars, payable quarterly, was levied on druggists having a permit from the probate judge for the sale of intoxicating liquors, and a fee of only five dollars on druggists who did not have such a permit.
The plaintiff paid into the city treasury the sum of twenty dollars (a quarterly payment) and obtained a license as a druggist having a permit to sell intoxicating liquors. He then commenced an action to recover fifteen dollars of that amount as being an illegal exaction. The question presented was whether the ordinance was valid, and this court provided an affirmative answer. The court’s discussion on the point is found on page 168:
“Now we think there is a material difference between the two classes of druggists above mentioned. We must suppose that druggists who have permits to sell intoxicating liquors will sell the same for all lawful purposes, while the druggists who do not have any such permits will not sell intoxicating liquors for any purpose. We suppose that the one class will sell intoxicating liquors, because they have obtained permits therefor, while the other class will not sell intoxicating liquors at all, because it would be a violation of law for them to do so; and the druggist who sells intoxicating liquors may do a business vastly greater than the druggist who does not sell any such liquors. Hence there is a substantial difference between the two classes, and some reason for taxing the former at a greater rate than the latter. . . .” (p. 168.)
In the light of what has been said we conclude that Wichita Ordinance No. 30-747 is valid and we therefore affirm the judgment of the court below. | [
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The opinion of the court was delivered by
Harman, C.:
Plaintiff-appellant Ocie Cribbs appeals from an adverse ruling terminating his action for personal injuries because of insufficiency of his evidence offered in a jury trial.
At the outset defendant-appellee Pacific Intermountain Express challenges appellant’s right to be heard here.
Appellee asserts several procedural deficiencies and irregularities on appellant’s part in processing the appeal but we limit attention to those which must determine disposition of the case.
A stenographic transcript of the proceedings in the trial court was necessary for appellate review of the order complained of. After filing his notice of appeal in the trial court appellant failed timely to serve upon appellee copy of a written request to the court reporter for such transcript and to make proof of such service as required by Rule 6 (a) of this court relating to appellate practice (205 Kan. xxviii). This delinquency triggered the filing by appellee of a motion to dismiss the appeal which the trial court heard and sustained. Thereafter appellant chose only to file in the trial court a motion to rehear appellee’s motion to dismiss and then when that motion was denied to file a notice of appeal from the trial court’s denial order.
Thereafter appellant continued to process his appeal in this court as though nothing untoward had occurred, filing successively a record on appeal, supplement to record (in the preparation of neither of which appellee participated), and a brief. Meanwhile appellee filed in this court its motion to dismiss the appeal, which was denied with leave to renew at the hearing of the appeal upon its merits. During oral argument appellee renewed that motion which upon its full presentation and consideration, we now sustain.
Implicit in the trial court’s initial order dismissing the appeal was a finding that appellant had abandoned his appeal by reason of his failure timely to serve upon appellee copy of his written request to the court reporter for a transcript of the trial proceedings.
Rule 6 (p) (205 Kan. xxxi-xxxii) provides:
“Effect of Delays — Extensions of Time. Whenever an appellant fails to complete any step necessary to the docketing of an appeal within the time prescribed by this rule, he shall be deemed to have abandoned the appeal unless the time for such step shall be extended by the Judge of the court from which the appeal is taken for good cause and after reasonable notice to the other parties. Whenever an appellee fails to complete any step permitted to him within the time prescribed by this rule, he shall be deemed to have waived his right to such step unless the time for the same shall be extended by the Judge for good cause and after reasonable notice to the parties affected. No application for an extension of time in which to complete any step may be considered by the Judge of the court from which the appeal is taken unless such application is filed prior to the expiration of the period of time which is sought to be extended, except in those cases where the failure to file such application before the time has expired is the result of excusable neglect. The refusal of the Judge to extend the time for the completion of any such steps shall be final, unless the Supreme Court shall upon immediate application, filed in accordance with Rule No. 7, find such x-efusal to have been an abuse of discretion and shall grant such extension as justice may reqxxire. Any application filed pursuant to this rule shall be docketed in accordance with Rule No. 3, insofar as applicable, and comply with Rules No. 2 and No. 7. When an appeal has been abandoned in accordance with this subdivision, the Judge of the court from which the appeal has been taken, after reasonable notice to the parties affected, shall enter a finding of such abandonment; and thereupon the costs of the appeal shall be assessed against the appellant.”
This rule mandates dismissal of an appeal for failure to complete any step necessary to its docketing within the period of time prescribed therein. Extension of time for the completion of any such step may be granted by the trial court upon application made before expiration of the prescribed period of time. Where timely application for extension is not made the trial court is vested with discretion to determine whether such failure was the result of excusable neglect and to grant further extension of time where appropriate under the particular circumstances.
Once an appeal has been declared abandoned and dismissed by the trial court it is incumbent upon the appellant to take the action further prescribed in Rule 6 (p) for the reinstatement of such appeal.
Appellant made no application to the trial court for an extension of time within which to comply with Rule 6(c) and the trial court was never called upon to find that appellant’s failure to file timely application was the result of excusable neglect. The record is barren of any facts which would constitute excusable neglect. Appellant thus deprived himself of the opportunity to have any refusal by the trial court to grant him an extension of time reviewed by this court upon immediate application to it whereby, if the circumstances revealed by the record warranted, such refusal might have been declared an abuse of discretion.
Appellant’s purported appeal from the trial court’s denial of his motion to rehear appellee’s motion to dismiss has no sanction in our procedural code or rules and, in the interest of orderly procedure, cannot be used to circumvent the authority vested in the trial court under Rule 6 (p). The result is, the appeal has been finally dismissed under well-established rules for appellate practice and we have nothing before us for review.
The purported appeal is dismissed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
The question presented in this State appeal is whether section 21-3708 of our New Criminal Code (K. S. A. 1970 Supp.) entitled “Habitually giving worthless checks” is a form of an Habitual Criminal Act or a declaration of a distinct and separate criminal offense.
Defendant was charged with two violations of the statute in two counts of an information filed on August 14, 1970. The information reads in full as follows:
“Count I
“I, Robert G. Frey, the undersigned, County Attorney of said County, in the name, by the authority, and on behalf of the State of Kansas, come now here and give the Court to understand and be informed that on the 5th day of July, A. D., 1970, in said County of Seward and State of Kansas, one Clint Walden a/k/a Clint Stout a/k/a Clinton Stout did then and there unlawfully, feloniously, and willfully give a worthless check as defined by K. S. A. 21-3707, in the sum of $20.00 the said Clint Walden having been twice convicted of giving a worthless check on the 23rd day of May, 1970, in the County of Seward, State of Kansas, and on the 20th day of June, 1970, in the County -of Seward, State of Kansas, both of said convictions having occurred within two (2) years immediately preceding the giving of said worthless check alleged above, which check is as follows:
Payee and endorsed: KT Oil Company
Dated: July 5, 1970.
Drawn upon: First National Bank, Liberal, Kansas
Signed: Clint Stout
Returned: No account
Amount: $20.00
In violation of K. S. A. 21-3708, penalty section 21-4501 (d).
“Count II
“That, on or about the 19th day of July, 1970, said Clint Walden did then and there unlawfully, willfully and feloniously give a worthless check as defined by K. S. A. 21-3707, in the sum of $30.00, the said Clint Walden having been twice convicted of giving a worthless check on the 23rd day of May, 1970, in the County of Seward, State of Kansas, and on the 20th day of June, 1970, in the County of Seward, State of Kansas, both of said convictions having occurred within two (2) years immediately preceding the giving of said worthless check alleged above, which said check is as follows:
Payee and endorsed: KT Oil Company
Dated: July 19, 1970
Drawn upon: First National Bank, Liberal, Kansas
Signed: Clint Stout
Returned: No account
Amount: $30.00.
In violation of K. S. A. 21-3708, penalty section 21-4501 (d).
“Seward County Attorney
“s/Robert G. Frey
“Filed August 14, 1970.”
On August 21,1970, the parties appeared before the district court. Defendant made an oral motion to dismiss. The motion was set for hearing on September 4, 1970, when it was sustained. This appeal by the State ensued.
K.S.A. 1970 Supp. 21-3708 reads:
“(1) Habitually giving worthless checks is:
“(a) Giving a worthless check, as defined by section 21-3707, drawn for less than fifty dollars ($50), by a person who has within two (2) years immediately preceding the giving of such worthless check, been twice convicted of giving worthless checks; or
“(b) Giving two (2) or more worthless checks, as defined by section 21-3707, each drawn for less than fifty dollars ($50), where the total amount for which such worthless checks are drawn is fifty dollars ($50) or more and each of such checks were giv.en on the same day.
“(2) A complaint, information or indictment charging a violation of subsection (1) (a) shall allege specifically that the defendant has twice been convicted of giving a worthless check and shall allege the dates and places of such convictions and that both of them occurred within a period of two (2) years immediately preceding the crime charged. For the purpose of subsection (1) (b) worthless checks bearing the same date shall be presumed to have been given the same day. Any complaint, information or indictment charging a violation of this section shall allege that the defendant feloniously committed the crime.
“(3) Habitually giving worthless checks is a class D felony.”
Defendant contended before the district court that 21-3708 is in fact an habitual criminal statute designed and intended to authorize an increased punishment only after a showing of two separate offenses and convictions in such chronological order that the defendant has had two prior chances to profit from his experiences and reform.
In order to establish his position defendant prevailed upon the district court to notice records showing the chronological sequence of defendant’s prior offenses and convictions. Since the records concerned were extraneous to the information, the State makes a point in its brief that a motion to dismiss for insufficiency of the information must be based upon some defect apparent on the face of the information. On oral argument, however, the State abandoned this collateral point and requested a determination of the root question.
The chronology of defendant’s prior offenses and convictions, about which there is no dispute, are set out in the trial court’s findings as follows:
“That the Defendant signed an insufficient funds check dated April 2, 1970, and was convicted on May 23,1970.
“That the Defendant signed an insufficient funds check on May 13, 1970, and was convicted on June 30,1970.
“That the commission-conviction on the check signed April 2, 1970, did not occur prior to the commission and conviction of the check signed May 13, 1970.
“The Court finds the conviction on the check signed April 2, 1970, followed the commission of the check signed May 13, 1970, but prior to the conviction of the check signed May 13,1970.”
Even though the two checks referred to in the court’s findings were given and convictions had in each instance prior to defendant’s alleged giving of the checks for which he is charged herein, defendant claims the two previous convictions do not meet the requirements of the statute because the conviction on May 23, 1970, for giving the check on April 2, 1970, did not occur until after defendant had given the second check on May 13, 1970.
Defendant develops his theory by first treating 21-3708 as an habitual criminal act and then applying the pronouncements of this court concerning the purpose and operation thereof in State v. Gauger, 200 Kan. 563, 438 P. 2d 463; State v. Felton, 194 Kan. 501, 399 P. 2d 817; and State v. Ricks, 173 Kan. 660, 250 P. 2d 773. The cases mentioned declare that prior convictions relied on to enhance the punishment as authorized by the habitual criminal act must precede the commission of the principal offense. The valid reasons for the rule are fully set forth in the opinions noted. The trouble encountered by defendant in attempting to apply his theory to the statute in question is that it does not merely provide for the enhancement of punishment in the case of proven prior convictions; it defines in plain and unambiguous language the elements of a separate and distinct offense and declares it to be a class D felony.
Habitual criminal acts do not involve a charge of a commission of a criminal offense; they involve a status rather than the commission of a separate offense. (39 Am. Jur. 2d, Habitual Criminals, Etc., § 2, pp. 308-310; State ex rel. Ringer v. Boles, 151 W. Va. 864, 157 S. E. 2d 554.)
The clear import of K. S. A. 1970 Supp. 21-3708 is to define the elements of a separate offense which may be committed under subsection (1) (a) by giving a worthless check within two years after two prior convictions or under subsection (1) (b) by giving two or more worthless checks on the same day. Subsection (2) specifies the allegations necessary to charge a violation of the act and sets forth a presumption with respect to subsection (1) (b). Subsection (3) declares the offense to be a class D felony.
There is no mention of sequence in the provisions of subsection (1) (a), nor are there any requirements concerning either sequence or convictions in subsection (1) (b). An examination of the statute in its entirety clearly reveals the intendments to define a separate and distinct offense based upon the elements of giving checks in the manner and under the circumstances described in subsections (1) (a) or (1) (b).
In reaching the conclusions just announced we have not overlooked the familiar rule that ordinarily criminal statutes are to be strictly construed. The rule of strict construction, however, does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language used in the statute under consideration. (State v. McGaugh, 180 Kan. 850, 308 P. 2d 85; and State v. Brown, 173 Kan. 166, 244 P. 2d 1190.) A penal statute should not be so read as to add that which is not found therein or to read out what as a matter of ordinary English language is in it. (State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P. 2d 1011.)
The judgment of the trial court is reversed with directions to proceed with the trial of the case. | [
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The opinion of the court was delivered by
Fromme, J.:
This action arose from a rear-end automobile collision which occurred in Wichita, Kansas. The collision was caused by a brake failure. Plaintiff, Juanita Langley, recovered a jury verdict for $16,000 against the defendant, Byron Stout Pontiac, Inc., because of defendant’s negligence in repairing the brakes of the offending vehicle. Defendant appeals from the judgment entered on the verdict.
The general thrust of defendant’s argument is two pronged, excessive verdict and trial errors.
Plaintiff’s automobile was stopped at a stop light when it was struck from the rear by an automobile owned and operated by Darrel M. Gaines. The brakes on the Gaines vehicle had been repaired by the defendant, Byron Stout Pontiac, Inc., on May 20. The brakes failed and the collision occurred on June 28. The pretrial order contained the following stipulations of the parties:
“1. The parties have agreed to be bound by the following stipulations:
“A. Plaintiff was involved in a multiple car collision on June 28, 1966, on South Oliver Street in Wichita, Sedgwick County, Kansas. Plaintiff’s car was run into in the rear by one Darrell Gaines.
“B. Said collision was caused by a brake failure on the Gaines automobile. At the time of the collision, plaintiff was employed at the rate of $2.75 per hour and worked a forty hour week.
“C. As a result of the collision, plaintiff was injured and incurred hospital expenses as reflected by her bill.”
Evidence at the trial conclusively established the brakes had been repaired by an employee of the defendant. Evidence further indicated that a bolt securing the brake cylinder to the backing plate on the inside of the wheel drum was missing after the accident. The absence of this bolt permitted the brake cylinder to turn and allowed the brake fluid to escape.
The driver Gaines testified he observed a quantity of brake fluid underneath his car after the accident. The brakes had been working shortly before the accident. When his brakes suddenly gave way he attempted to engage the emergency brake but time did not permit him to reach the second brake. Prior to the collision he was driving with the traffic at 20 to 25 miles per hour. When his brakes were first engaged he felt some pedal pressure but on further pressure the pedal gave way and the brakes failed.
The plaintiff was 42 years of age and was working for Boeing Airplane Company as a sheet metal assembler. Prior to the accident she was in good health and had worked for tihat company seventeen years. When the accident occurred her car was stopped at a stop light. The force of the impact threw her forward into the steering wheel. She was. aware of pain in her neck at that time and was admitted to the hospital two hours later. She was discharged from the hospital five days thereafter but continued to complain of pain in her right shoulder and neck. Treatments for muscle spasm in the shoulder and neck muscles were continued over a period of 20 months. At the time of the trial she used a traction appliance at home to stretch her neck muscles and reheve the pain. She further testified of other physical limitations caused by her injury. Her eyesight was affected. She could not hold a pillow under her chin to place it in a pillow case. She had difficulty in moving her head when driving a car. She could not sleep on her stomach as was her custom and she had to steady her neck with a towel when having her hair shampooed. Although X-rays failed to disclose damage to bone structure, her doctor could not state with certainty that she would fully recover from her injuries. She has returned to her work.
The determination of controverted questions of fact involving the credibility of a witness and the truth of the testimony is ordinarily a question of fact to be determined by the jury. (White v. Rapid Transit Lines, Inc., 192 Kan. 802, 391 P. 2d 148.)
Defendant strenuously contends the $16,000 verdict was excessive. The evidence of actual medical expenses incurred and loss of earnings suffered according to the record before us amounts to $300. The cost of certain items of damage such as the hospitalization does not appear in this record. Defendant asks that a new trial be granted or in the alternative a remittitur be ordered. It should be noted that a general verdict was returned. There is nothing in the nature or amount of this verdict and nothing in the evidence or argument on appeal which would indicate a remittitur should be granted because of the inclusion of any erroneous element of damages. The charge of excessiveness is directed toward a single verdict which includes present and future damages for medical expenses, hospital bills, loss of wages, pain and suffering and any physical disability incurred. When the charge of an excessive verdict is general in nature it falls within the rule expressed in Knoblock v. Morris, 169 Kan. 540, 220 P. 2d 171. A request for a remittitur of a portion of the verdict should be denied when such remittitur would result merely in substituting this court’s judgment for that of the jury. The jury is the trier of the facts, not this court. (See Domann v. Pence, 183 Kan. 135, 325 P. 2d 321.)
The appellant further argues the amount of the verdict is so out of proportion to the injuries incurred that the trial court erred in refusing to grant a new trial because of passion or prejudice of the jury. (See K. S. A. 1970 Supp. 60-259, Third.)
When a charge of excessive verdict is based on passion or prejudice of the jury and depends for support solely on the amount of the verdict, the trial court will not be reversed for refusing a new trial unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court. (Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P. 2d 605; Neely v. St. Francis Flospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438; Slocum v. Kansas Power & Light Co., 190 Kan. 747, 378 P. 2d 51.)
Although the verdict in this case was for $16,000 the plaintiff sued for $37,500. There is nothing in the record before us, other than the amount, from which to find the verdict was a result of passion or prejudice of the jury. Pain and suffering have no known dimensions, mathematical or financial. (Domann v. Pence, supra.) This is not a case where punitive damages were allowed as in Rooks v. Brunch, 202 Kan. 441, 444, 449 P. 2d 580.
Stated simply we hold the conscience of this court is not shocked by the amount of the verdict and a new trial should not be granted.
We turn to the trial errors alleged.
During the voir dire examination of the jury panel by counsel for plaintiff, one of the prospective jurors asked the following question:
“What about the insurance that we’ve been paying for? Isn’t that supposed to take care of these little things?”
The prospective jurors were immediately advised by counsel for plaintiff that they were not to concern themselves with insurance or with where the money comes from to pay a judgment. The matter was passed over without further comment by court or counsel.
This juror was not challenged or removed peremptorily. At the first recess after voir dire examination counsel for defendant moved for a mistrial.
At the suggestion of counsel for plaintiff the court offered to instruct the jury at that time, or later when the written instructions were to be given, that they were not to be concerned with questions of insurance or where the money comes from to pay a judgment. Counsel for defendant advised the court that such an instruction would merely aggravate the mention of insurance and he did not want the instruction or admonishment given. The motion for a mistrial was overruled and on appeal defendant contends error was committed.
K. S. A. 60-454 provides:
“Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.”
No evidence of insurance was offered and none was received during the trial. The provisions of the statute were not violated.
However, this court, in attempting to force compliance with the spirit of the statute, has frowned on the practice of using one means or another to suggest to a jury that the defendant is covered by liability insurance. (Bott v. Wendler, 203 Kan. 212, Syl. ¶ 6, 453 P. 2d 100.) An examination of our cases on the subject indicates that when the mention of insurance during a trial is purely inadvertent and is not brought into the case by intentional misconduct of plaintiff’s counsel prejudicial error has not been committed thereby. (See Newell v. City Ice Co., 140 Kan. 110, 113, 34 P. 2d 558; Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120; Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281; Bott v. Wendler, supra.)
The mention of insurance in this case was purely inadvertent and was not brought into the case by counsel. No prejudicial error was committed thereby.
Plaintiff complains of the exclusion of or limitation on certain testimony. A mechanic who testified was asked by defendant if it was customary in repairing the brakes of a vehicle to replace the old bolt and lock washer when the wheel cylinder is overhauled. Objection to the use of the word “customary” was sustained. The question was then rephrased and answered as follows:
“Q. ... In your trade is it reasonable to replace the old bolt and lock washer when the wheel cylinder is overhauled?
“A. No, not unless it shows evidence of a wear or of a potential failure. When we overhaul an old wheel cylinder we reinstall the same bolts and washers.”
It appears the evidence solicited by defendant was admitted in slightly different form. We fail to see how the difference in the form of the question could be prejudicial. A party seeking a reversal because of the exclusion of evidence has the burden of showing prejudice as well as error in any ruling on which complaint is made. (Osborn v. Lesser, 201 Kan. 45, 439 P. 2d 395.) There was no great difference in the thrust of these two questions and the answer to the second question was at least as favorable to defendant’s cause as a similar answer would have been to the first question.
Defendant complains that the question of the negligence of Darrel Gaines and of Juanita Langley was taken from the consideration of the jury by the instruction of the court. The court instructed the jury that both were free from negligence.
In Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912, it was said:
“. . . Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K. S. A. 60-216). . . .” (p. 519.)
The pre-trial order in the present case indicates the parties agreed the collision was caused by a brake failure on the Gaines vehicle. The order clearly defines the issues to be determined as follows:
“2. The remaining issues of fact to be determined are as follows:
“A. Was defendant negligent in repairing the brakes of Darrell Gaines’ automobile in either leaving a pin loose or leaving the pin out of the left front brake cylinder on either March 10, 1966, or May 20, 1966; the period of time to be identified by the plaintiff prior to trial.
“B. Was defendant’s negligence, the proximate cause of plaintiff’s injuries and damages.
“C. The nature and extent of plaintiff’s injuries and damages.”
Therefore, no issue of negligence on the part of Gaines or of plaintiff remained in the case and the instructions properly removed such issues from consideration by the jury. The proximate cause of the collision was stipulated to be a brake failure on the Gaines automobile.
The defendant at the trial objected to the court’s instructions because they faffed to limit the defendant’s liability to the specific act of negligence listed in the pre-trial order.
In summarizing the issues set forth in the pleadings and limited by the pre-trial order the court instructed as follows:
“The plaintiff in this action Juanita Langley alleges she was driving a 1965 Plymouth automobile and was stopped behind traffic headed south on Oliver at approximately the 3600 block south; also proceeding in a southerly direction on Oliver in the 3600 block thereof one Darrel Gaines was driving a 1956 Pontiac automobile and was approaching the rear end of the plaintiff’s auto mobile and upon attempting to stop, his brakes failed and as a result he collided with the rear end of plaintiff’s automobile. That this collision was proximately caused as a result of the negligence of the defendant Byron Stout Pontiac, Inc.; that the above occurred on the 28th of June, 1966, at 4:45 p. m.”
Instruction No. 12 reads as follows:
“You are instructed that if you find from the evidence that the defendant in the repair of Darrell Gaines’ automobile failed to exercise that degree of care and skill required of the garage repairmen, and that such defective repair work was the cause of said brake failure, then your verdict must be for the plaintiff and against the defendant.”
The thrust of all evidence introduced at the trial on the cause of the brake failure related to the missing bolt which should have secured the brake cylinder. No evidence of any other negligence was introduced.
The instructions to a jury are to be considered as a whole and in their entirety, and each instruction is to be considered in connection with all other instructions in the case. (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670; 4-6 Hatchers Kansas Digest Supp. (Rev. Ed.) Trial § 186.) If the instructions to the jury properly and fairly state the law of the case when considered as a whole and if the jury could not reasonably be misled thereby the instructions should be approved on appeal. (Hughes v. Atkinson, 188 Kan. 413, 419, 362 P. 2d 618; Wegley v. Funk, 201 Kan. 719, 724, 443 P. 2d 323.)
Considering the instructions given in the present case and the limitations placed on the issues by the pre-trial order, we do not believe the jury was misled in any way. The instructions considered as a whole properly and fairly stated the law of the case.
Judgment is affirmed.
O’Connor and Prager, JJ., not participating. | [
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The opinion was delivered by
Luckert, J.:
Defendant Joby Hoge appeals the district court’s denial of his pro se motion for correction of an illegal sentence pursuant to K.S.A. 22-3504(1). He argues the district court’s order failed to comply with Kansas Supreme Court Rule 183(j) (2006 Kan. Ct. R. Annot. 227), which requires a district court to make findings of fact and conclusions of law on all issues presented in an action filed pursuant to K.S.A. 60-1507. He also contends that the district court committed error by not appointing counsel and conducting a hearing on his motion to correct an illegal sentence.
This is the second appeal related to Hoge’s convictions for first-degree murder and aggravated burglary. In State v. Hoge, 276 Kan. 801, 80 P.3d 52 (2003), he raised several issues, arguing: (1) the district court should have given an instruction for intentional second-degree murder as a lesser included offense, (2) the district court improperly instructed the jury that it could rely on the combined theories of premeditated murder and felony murder rather than agreeing on a single theory, (3) the first-degree murder conviction must be reversed because Hoge was denied a unanimous verdict, (4) there was insufficient evidence of premeditation, (5) the district court improperly excluded evidence that the victim sold drugs, and (6) the district court improperly responded to the jury’s question during deliberations. Hoge’s convictions were ultimately affirmed.
On December 9, 2004, Hoge filed a pro se motion to correct an illegal sentence. In his pro se memorandum of support, Hoge asserted that the “thrust” of his motion related to “several errors” within the complaint/information, sufficiency of the evidence, erroneous jury instructions, jurisdiction, and “the sentence and conviction of [the] defendant.” Hoge specified that the complaint and accompanying jury instruction were “jurisdictionally and fatally defective.” According to Hoge, his due process rights were violated because certain language in the complaint and jury instruction was not identical to the applicable statutory language. He contended that the first-degree murder charge erroneously included the terms “unlawfully,” “by shooting,” and “inflicting injuries” and that this language was then erroneously omitted from the accompanying jury instruction. Hoge also essentially requested permission to proceed in forma pauperis.
The district court did not appoint counsel for Hoge and did not hear oral argument before denying Hoge’s motion. The court rejected Hoge’s claim of jurisdictional defect, finding that the language of which Hoge complained specifically explained the basis for the charge of premeditated first-degree murder and was consistent with K.S.A. 2006 Supp. 22-3201(b), which requires the essential facts be included in the complaint. The district court further found that the first-degree murder jury instruction was not improper because the instruction mirrored PIK Crim. 3d 56.01 (Murder in the First Degree). The district court determined: “As the defendant’s current motion does not present a substantial issue of fact for this court, the defendant’s request to proceed in forma pauperis will not be addressed.”
It is from this ruling that Hoge appeals through his appellate counsel.
Compliance With Kansas Supreme Court Rule 183(j)
Hoge contends the district court’s order denying the motion to correct an illegal sentence failed to comply with Kansas Supreme Court Rule 183(j) (2006 Kan. Ct. R. Annot. 227). This contention has no merit.
The interpretation of a Supreme Court rule is a question of law over which this court has unlimited review. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).
Rule 183 (j) requires a district court to “make findings of fact and conclusions of law on all issues presented” in addressing a K.S.A. 60-1507 motion. See State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000) (district court’s ruling did not comply with Rule 183[j]); Stewart v. State, 30 Kan. App. 2d 380, 382, 42 P.3d 205 (2002) (boilerplate journal entries do not comply with Rule 183[j]; case remanded for compliance). Rule 183 does not mention motions to correct sentences; it relates solely to actions under K.S.A. 60-1507.
However, in general, this court has repeatedly “recognized that meaningful appellate review is precluded where a trial court’s find ings of fact and conclusions of law are inadequate to disclose the controlling facts or basis for the court’s findings.” Blair Construction, Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002). Also, in general, this court has treated procedural aspects of motions attacking sentences filed under K.S.A. 22-3504 the same as those filed under K.S.A. 60-1507. See Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005). We, therefore, conclude that, even though Rule 183(j) does not apply to a motion to correct an illegal sentence filed pursuant to K.S.A. 22-3504, a district court is required to make findings of fact and conclusions of law on all issues presented by the motion and those findings and conclusions must be sufficient to allow meaningful appellate review.
Hoge observes that Kansas appellate courts have required cases to be remanded for findings of fact and conclusions of law where the district court’s findings and conclusions were insufficient to allow meaningful review. See, e.g., Stewart, 30 Kan. App. 2d at 382.
Hoge relies upon Moncla, 269 Kan. at 61, where the district court denied a motion for new trial without analyzing the paper evidence presented regarding new information and made no findings of fact or conclusions of law in support of its denial. This court determined that the district court had not complied with Rule 183(j) and remanded the case for findings. In support of its conclusion, the Moncla court stated:
“The merits of Moncla’s motion aside, the fundamental problem with the district court’s approach here is that it impedes appellate review. How are we to review the decision, even under the abuse of discretion standard, when neither findings nor conclusions based on the findings are stated? Motions for new trials, like many 60-1507 motions, may be meritless and, thus, not entitled to evidentiary hearings. However, the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review.” 269 Kan. at 65.
See State v. Bolden, 28 Kan. App. 2d 879, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001).
Hoge contends that the district court’s findings of fact and conclusions of law on the issues presented in Hoge’s motion were “insufficient,” but he fails to couple any explanation to this con tention. As the State points out in its brief, unlike the situation in Moncla, the district court in the present case made adequate findings of fact and conclusions of law to allow meaningful appellate review.
Failure to Appoint Counsel and Conduct an Evidentiary Hearing
Hoge also contends the district court erred in denying his pro se motion for correction of an illegal sentence without first appointing counsel and conducting an evidentiary hearing. He argues that the plain language of K.S.A. 22-3504(1) bars summary disposition of a motion to correct an illegal sentence. Hoge’s contention is not persuasive.
Hoge’s arguments, in part, require interpretation of K.S.A. 22-3504. The interpretation of a statute is a question of law over which this court has unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
K.S.A. 22-3504(1) provides:
“The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
While Hoge recognizes that Kansas appellate courts have treated motions to correct illegal sentences like K.S.A. 60-1507 motions— where district courts may summarily deny the petitioner’s motion if the motion, files, and records of the case conclusively show the petitioner is not entitled to relief — Hoge contends that the language in K.S.A. 22-3504(1) requires the district court to appoint counsel and hold an evidentiary hearing in instances involving a motion to correct an illegal sentence. This court, however, has rejected such a notion. In State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997), this court stated:
“Our decisions have been quite uniform in upholding the propriety of such preliminary examinations on dll post-trial motions filed later than 10 days after trial. There is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence. Logic does not require a different treatment. What purpose is served if, unlike another post-trial motion, the filing of a bare-bones conclusoiy motion to correct an allegedly illegal sentence triggers a full-blown hearing with defense counsel and the presence of tire defendant? We believe the key words in K.S.A. 22-3504(1) relative to the issue before us are ‘any proceeding.’ The district court should make the preliminary examination as to whether substantial questions of law or fact are raised. If the findings are in the negative, die court should summarily deny the motion. This is not a ‘proceeding’ within the language of the statute. If the findings are in die affirmative, then the matters can only be resolved in a ‘proceeding’ as set forth in die statute.” 263 Kan. at 195-96.
Hoge urges us to abandon this holding, arguing it is contrary to the plain language of the statute. His arguments are not persuasive. The right to be present, have counsel appointed, and have a hearing relates only to “any proceeding for the correction of an illegal sentence.” (Emphasis added.) This unambiguous language requires the defendant’s presence, with the assistance of counsel, only at the proceeding where an illegal sentence is corrected. Hoge attempts to rewrite the statute to read “any proceeding relating to a motion to correct an illegal sentence.” (Emphasis added.) Even if we were to deem the language ambiguous and examine legislative intent, there is no indication the legislature intended the presence of a defendant when a court conclusively determines there is no basis “for correction of an illegal sentence.”
Therefore, we reaffirm that K.S.A. 22-3504 does not automatically require a full hearing upon the filing of a motion to correct an illegal sentence. Love, 280 Kan. at 557 (motions attacking sentences filed under K.S.A. 22-3504 treated no differently than those filed under K.S.A. 60-1507); State v. Denney, 278 Kan. 643, 647, 101 P.3d 1257 (2004) (full hearing on motion to correct illegal sentence not automatic). The district court is required to make a preliminary examination of the motion. State v. Mebane, 278 Kan. 131, 138, 91 P.3d 1175 (2004). Based upon that preliminary examination, the court can handle the motion in one of three ways. First, the motion can be denied without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief. Second, if the district court determines that a substantial issue of fact or law is raised in the motion, a hearing or hearings must be conducted. The defendant is entitled to the assistance of counsel. Third, if the district court is unable to determine from the motion, files, and record whether or not an issue raised may allow relief, the court must conduct further proceedings, including evidentiary hearings. The defendant is entitled to the assistance of counsel. Love, 280 Kan. at 557; Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000).
Here, it must be determined whether Hoge’s motion, files, and records of the case conclusively show that he is entitled to no relief. Hoge argues that his motion raised substantial questions of law and triable issues of fact, but he fails to assert the merits of his arguments in his appellate brief. Regardless, Hoge’s motion clearly has no merit.
K.S.A. 22-3504 only applies if a sentence is illegal. The question of whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Denney, 278 Kan. at 646. This court has defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006); State v. Duke, 263 Kan. at 194; Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994).
In Nash, just as in this case, the defendant filed a motion to correct illegal sentence on the ground that the complaint was fatally defective. Nash, who was convicted and sentenced for felony murder and aggravated robbery, argued he was incorrectly charged with taking property only from the “presence” of another rather than from the “person or presence” of another. In Nash, this court held that a motion to correct an illegal sentence was not the appropriate remedy for Nash’s claim, stating:
“The defendant herein is seeking reversal of his conviction of aggravated robbery as opposed to correction of the sentence imposed on the conviction. In essence, the defendant is seeking to use the correction of an illegal sentence statute as the vehicle for a collateral attack on a conviction. Such relief is not available under K.S.A. 22-3504.
“The district court should have denied relief on the basis that the only relief sought was not available under the statute. However, where the trial court reaches the right result, it will not be reversed even though its reasoning was not correct. State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004).” 281 Kan. at 602.
The same conclusion applies in this case. Relief is not available to Hoge under K.S.A. 22-3504 for the type of defects he alleges in the complaint. The district court correctly denied relief, although for the wrong reason.
Accordingly, the district court did not err in summarily dismissing Hoge’s motion to correct an illegal sentence because tire motion, files, and records of the case conclusively show that Hoge was entitled to no relief.
Affirmed.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
Floyd Bledsoe was convicted of first-degree murder, aggravated kidnapping, and aggravated indecent liberties with a child; this court affirmed his convictions. See State v. Bledsoe, 272 Kan. 1350, 39 P.3d 38 (2002). This is an appeal from the district court’s denial of his K.S.A. 60-1507 motion after a full evidentiary hearing on his claims of prosecutorial misconduct and ineffective assistance of counsel.
Factual and Procedural Background
At the time of her disappearance, the victim, Floyd Bledsoe’s 14-year-old sister-in-law, C.A., was living with Floyd and his wife, Heidi, and their two sons, Cody and Christian, near Oskaloosa, Kansas.
At about 4:20 p.m. on Friday, November 5,1999, the school bus dropped C.A. off at the Bledsoes’ trailer home. A friend of C.A.’s stopped by about 5 p.m., but C.A. was not home. .
A hunter testified that at about 5:30 p.m. he heard a woman scream and the words “please don’t hurt me, somebody help, please don’t hurt me” coming from near the dairy where Floyd worked. The hunter testified he did not hear any gunshots.
Tom Bledsoe, Floyd’s brother, turned himself in to police on Sunday, November 7, and, through his attorney, led investigators to C.A.’s body on Monday, November 8. C.A. had been buried in a trash dump on the property of the Bledsoes’ parents, also near Oskaloosa, where Tom lived. The body was under a pile of dirt, with several sheets of plywood and some clothing on top. C.A.’s shirt and bra were pulled up above her breasts. She had been shot once in the back of the head and three times in the chest.
Two days after his arrest, Tom made a statement to police, impheating Floyd. Tom said that while he was on his way to work on Saturday, November 6, he saw Floyd’s car and stopped to talk. Tom testified that Floyd laid his head on the steering wheel and looked a little nervous. When Tom asked him what was wrong, Floyd said C.A. was dead. Tom said Floyd was mumbling, but he heard him say “accidentally shot her.” Tom asked, “What?” Floyd said, “She’s dead, accidentally shot her.” Tom testified that he asked Floyd why she was dead. Floyd shook his head and shrugged his shoulders. Tom also said that he asked Floyd whether he had raped C.A. or sexually abused her. Floyd responded, “Yes, no, I don’t know.” Floyd told Tom that he recalled her shirt and bra were above her breasts and that he used Tom’s pistol to shoot C.A. Tom said he reached behind the truck seat and felt his pistol in the case. He said Floyd knew he kept a gun in his truck. Tom testified that Floyd told him he shot C.A. once in the back of the head and twice in tire chest. When Tom asked where C.A. was, Floyd told him she was in the trash dump behind their parents’ house underneath plywood, trash, and dirt.
Tom also said that Floyd had told him not to tell anyone, that Tom should take the blame, and that if he did not, Floyd would tell people about Tom’s past. At trial, Tom acknowledged that Floyd had threatened him in this way in the past to get what he wanted. Tom thought Floyd would reveal to members of his church that he had tried to have sex with a dog, had been caught with dirty magazines, and had played with himself while watching dirty movies.
Tom testified at trial that when he got off work on Saturday night, he went home to “make sure if what [Floyd] told [him] was true.” He had driven out to the trash dump and looked around; he had not seen C.A.’s body but had noticed that items in the dump and dirt had been displaced. Tom then went home and put his gun in his dresser drawer. He turned himself in the next day after leaving messages on tire answering machine of the minister at his church. In the messages, Tom said he was sorry and would “pay for the rest of [his] life for what [he had] done.” He did not say that he had killed C.A. However, Tom told officers he had shot C.A.
Tom testified at Floyd’s trial that he turned himself in for something he did not do because he did not want people to know about his past. He said he also thought about wanting Floyd’s children to grow up with a father in the home. A day or two after his arrest, Tom was “ashamed” about lying and talked with police again, implicating Floyd. He testified that he could not live with himself because Floyd had told him where C.A.’s body was.
Officers interviewed the brothers together and eventually arrested Floyd and released Tom. Detective Randy Carreno testified at trial that when the brothers were in the room together, Tom stated that “[Tom] wanted [the officer] to know the truth, he wanted everybody to know the truth, and that he wasn’t going to hide tire truth anymore, and . . . the information that he gave [the officer] was that it was Floyd Bledsoe that killed [C.A.].” 272 Kan. at 1364.
Sheriff Roy Dunnaway testified that, during the search effort, after C.A. disappeared and before her body was discovered, Floyd asked him: “She’s dead, isn’t she? Do you know if she’s dead?” When asked if these statements were consistent with the usual reaction in the disappearance of a 14-year-old, possibly a runaway case, Dunnaway said, “I think most people put them thoughts out of their mind and still have hope that she was going to be found, which I had hopes that she would be found, be, be alright. [Floyd’s reaction] to me is unusual, yes.”
Detective Troy Frost testified regarding Floyd’s interrogation. He said that Floyd “got real emotional” and said that he had stopped at the trailer the afternoon C.A. disappeared. Later, and on a number of other occasions, Floyd denied having stopped by the trailer that day. Floyd also told Frost that he loved C.A. When the prosecutor asked, Frost said he believed Floyd had gone to the trailer and that Floyd was genuine about his feelings for C.A.
Detective Kirk Vernon testified that C.A.’s mother, Tommie Arfmann, told Vernon she had gone to look for Floyd at the dairy where he worked at about midnight on Friday, the night C.A. disappeared, and that Floyd was not there. On cross-examination, the prosecutor suggested that Arfmann told other law enforcement officers that it was much earlier than midnight when she was at the dairy.
The murder weapon, a 9 mm semiautomatic pistol found in Tom’s bedroom, belonged to Tom. He had purchased the gun about 2 weeks before the murder. Shells matching those fired from Tom’s gun were found in his bedroom. No fingerprints were found on the gun.
Dr. Erik Mitchell testified concerning the forensic evidence admitted at trial: (1) The shot fired to the back of C.A.’s head was a contact shot and was not fired at the location where she was found; (2) she had been placed in the burial site and then shot in the chest; and (3) based on the position of the shots fired in her chest in relation to her clothing, her shirt was raised up before the shots were fired. Mitchell opined that, based on the position and folds of C.A.’s shirt and bra, it appeared that her clothes had been intentionally lifted rather than moved up by post-mortem dragging or sliding of her body. 272 Kan. at 1362.
A safety plan instituted by the district court required Floyd to wear a bulletproof vest under his clothes throughout the trial.
The defense theory of the case was that Tom committed the murder, and testimony centered on the alibis of Floyd and Tom during the time between C.A.’s disappearance and the discovery of her body. Testimony also focused on the relationship each of the brothers had with C.A., and their various statements to police.
Testimony revealed that Floyd loved C.A., that he had considered pursuing a sexual liaison with her, and that he wanted to know what her plans were going to be when Floyd and his wife divorced, which they were in the process of doing. Testimony from Rosa Bolinger and Brandi Wampler suggested that C.A. was afraid to be alone at night at the trailer with Floyd.
Testimony at trial also included recitations of statements made by Floyd’s 2-year-old son, Cody, which implicated Tom and Floyd alternatively. Cody did not testify at trial. His statements developed in the following manner:
Floyd’s wife, Heidi, dropped her sons off at a babysitter’s house on Friday afternoon, November 5. The babysitter watched the boys until 12:45 a.m., when Floyd picked them up. Floyd brought them back to the babysitter around 2:45 a.m., and he returned at 8:30 a.m. on Saturday morning. On Monday night, after C.A.’s body was discovered, Cody told Heidi that Tom had killed C.A. Bolinger, who attended tire same church as C.A., testified on cross-examination by defense counsel that she heard Cody telling a story about Tom shooting C.A. Bolinger told police that on Monday, November 8, Cody said: “Tom shot [C.A.], boom, boom, boom, boom, and dumped her in the water. Tom put his, Cody’s, blanket around [C.A.] and also put [C.A.’s] blanket around her. . . . Tom closed [C.A.’s] eyes and he kissed her cheeks.” Bolinger said that sometime after that, but before the body was discovered, Cody first told her Tom put [C.A.] in a dump truck, but later Cody said that it was not a dump truck but a dump. On redirect, Bolinger indicated that, based on her perceptions, she did not think that someone told Cody these tilings, she believed he had actually seen them. Heidi also testified about Cody’s statements. Called by the State, she testified that she and Bolinger witnessed Cody describe Tom shooting C.A., wrapping her in a blanket, and putting her in the dump. A few days after Floyd’s arrest, however, according to Heidi, Cody’s statements changed; Cody started saying “Daddy” killed C.A.
Floyd was convicted of first-degree murder, aggravated kidnapping, and aggravated indecent liberties with a child. He filed a direct appeal of his convictions, challenging the sufficiency of the evidence, the admission of Cody’s hearsay statements as a violation of the Confrontation Clause, and the admission of certain testimony of Carreno as vouching for Tom’s credibility. This court affirmed the convictions, concluding that, although the evidence was entirely circumstantial, it was sufficient to support the convictions. We further held that, because the defense first introduced them into evidence, Cody’s hearsay statements did not violate the Confrontation Clause. We also held that the officer was not “vouching for Tom’s credibility.” 272 Kan. at 1364.
In January 2003, Floyd filed the petition underlying this appeal, alleging ineffective assistance of trial counsel. Depositions were taken of John Kurth, Floyd’s appointed trial counsel, and Jimmie Vanderbilt, the county prosecutor on the case.
On October 22, 2004, the district court held a full evidentiary hearing at which six witnesses testified: Dr. Marilyn Hutchinson, a child psychologist; Jean K. Gilíes Phillips, a University of Kansas Law School criminal law professor and Director of the Defender Project clinic; Tammy Dressier Arfmann, the victim’s sister-in-law; Kurth; Vanderbilt; and Floyd.
On March 9, 2005, Floyd moved to amend his petition in order to include the claim of prosecutorial misconduct. The district court granted Iris motion.
On September 28, 2005, the district court denied Floyd’s K.S.A. 60-1507 motion in a memorandum opinion, finding that his counsel was effective and sufficient; that counsel’s representation was reasonable considering the circumstances; and that counsel’s representation did not prejudice Floyd’s right to a defense and a fair trial. The court also concluded that the issue of prosecutorial misconduct was waived because it was not raised at trial or on Floyd’s direct appeal, and that there were no exceptional circumstances excusing Floyd’s failure to raise the issue earlier.
Standard of Review
Our standard of review on an appeal of a K.S.A. 60-1507 motion after an evidentiary hearing in the district court is well-established and often cited. We are charged with determining whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support the district court’s conclusions of law. Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998). Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). We must accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge. Graham, 263 Kan. at 753-54.
Prosecutorial Misconduct
In his amended 60-1507 petition, Floyd alleges that the prosecutor committed misconduct by submitting incompetent evidence in the form of Cody’s statements, and that this misconduct prejudiced Floyd’s constitutional right to a fair trial.
Prosecutorial misconduct may be properly raised on direct appeal, despite lack of contemporaneous objection at trial. See State v. Dixon, 279 Kan. 563, 581, 112 P.3d 883 (2005); State v. Mann, 274 Kan. 670, 688, 56 P.3d 212 (2002). It is not properly raised in a collateral proceeding under K.S.A. 60-1507 unless it affected a constitutional right and there is a showing of exceptional circumstances excusing the failure to appeal on that issue. Supreme Court Rule 183(c) (2006 Kan. Ct. R. Annot. 227); Johnson v. State, 271 Kan. 534, 535, 24 P.3d 92 (2001). As a practical matter, a 60-1507 movant can overcome a procedural default, i.e., a failure to raise an issue at trial or on direct appeal, and demonstrate exceptional circumstances by persuading us that there was (1) ineffective as sistance of trial counsel in failing to object regarding an issue; (2) ineffective assistance of direct appeal counsel in failing to raise the issue; or (3) newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and the movant at the time of trial and direct appeal.
Floyd relies on the third method. Although he alleges that Kurth was ineffective, he does not base his ineffectiveness argument on Kurth’s failure to allege prosecutorial misconduct at trial. He does not challenge the performance of his counsel on direct appeal. Instead, he argues that exceptional circumstances exist because the prosecutor’s misconduct was unknown until the 60-1507 hearing. Specifically, Floyd points to statements by the prosecutor, Jimmie Vanderbilt, that the prosecutor believed Cody to be incompetent to testify and the “Daddy did it” statement to be unreliable. Vanderbilt had been present when a police officer attempted to interview Cody. He testified about his resulting impression: “[B]ased on what I observed I didn’t believe that I could successfully sit the boy down on a stand and ask him questions and get him to respond appropriately.” Given this impression, Floyd argues, Vanderbilt’s presentation of Cody’s hearsay statements through the testimony of Bolinger and Heidi was reversible prosecutorial misconduct.
The district court concluded that there were no exceptional circumstances requiring review of this issue. See State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). We agree. The deposition of Floyd’s trial counsel, Kurth, also was admitted into evidence at the 60-1507 hearing. In it, Kurth testified that he also had concerns at the time of trial about the reliability of Cody’s statements. He nevertheless sought to introduce the “Tom did it” statement. In this situation, the fact that Floyd learned for the first time at the 60-1507 hearing that the prosecutor shared the concerns of his own counsel and nevertheless introduced Cody’s statements does not qualify as an exceptional circumstance excusing failure to raise the prosecutorial misconduct issue earlier. It is plain that Kurth did not raise the issue of Vanderbilt’s conduct earlier not because it was unknown to him but because he was engaging in the same conduct.
Ineffective Assistance of Counsel
The Sixth Amendment right to counsel is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting standards of Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 [1984]).
To support a claim of ineffective assistance of counsel, it is incumbent upon a defendant to prove that (1) counsel’s performance was deficient, and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004); see also State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2003); State v. Orr, 262 Kan. 312, 317, 940 P.2d 42 (1997); State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997) (quoting Strickland, 466 U.S. at 687). The benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Chamberlain, 236 Kan. at 656; Gleason, 277 Kan. at 643.
The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate tire conduct from counsel’s perspective at the time. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Gleason, 277 Kan. at 644.
Once a defendant' has established counsel’s deficient performance, the defendant also- must establish prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffec tiveness claim must consider the totality of the evidence before the judge or jury. 277 Kan. at 644.
We review de novo the district court’s analysis of the two prongs of the ineffective assistance of counsel inquiry, because it involves mixed questions of law and fact. Gleason, 277 Kan. at 644-45; Davis, 277 Kan. 309, Syl. ¶ 4.
Floyd points to what he regards as 23 specific failings by Kurth. These fall into six general categories: failings related to Cody’s statements; failing to object to other evidence, to the prosecutor’s closing argument, and to the requirement that Floyd wear a bulletproof vest during trial; failing to call witnesses and admit other evidence; pretrial procedural failings; fading to conduct a meaningful voir dire; and cumulative error. We address each in turn. We ultimately conclude that Kurth’s performance was constitutionally deficient. His professed “strategy” in introducing an exculpatory but nevertheless unreliable and incompetent hearsay statement of a 2-year old, which opened the door to the child’s damaging hearsay statement, was objectively unreasonable. However, because we cannot say that the outcome would have been different had Cody’s statements been excluded and Kurth’s other errors not occurred, and because our confidence in the jury’s verdict is not undermined, we conclude that there was no prejudice.
Failings Related to Cody’s Statements
Floyd urges us to recognize five errors of his counsel with regard to Cody’s statements: (1) failure to obtain Floyd’s consent to introduce Cody’s statements; (2) failure to request examination of Cody to determine his competence as witness; (3) failure to present expert testimony concerning child suggestibility and the reliability of Cody’s statements; (4) failure to object to the statements as hearsay; and (5) failure to object to the prosecutor’s questioning concerning the statements as evidence that Cody was an eyewitness.
Kurth testified at the 60-1507 hearing that he was aware of Cody’s “Daddy did it” statement, weighed the risk, and thought it would be to Floyd’s benefit to have the “Tom did it” statement come in, even if that meant the “Daddy did it” statement also would come in. It is for this reason that he did not object to the prosecution’s use of the “Daddy did it” statement. Kurth had previously determined he was “going to try to get [the “Tom did it” statements] in through [Heidi’s testimony],” thought they would be admissible, and drought any attendant risk would be “worth it.”
Floyd first argues that Kurth was ineffective for failing to secure his consent to the admission of Cody’s statements, and that this failure violated his right to confront the witnesses against him. The admissibility of Cody’s statements in relation to the Confrontation Clause was addressed by this court in Floyd’s direct appeal; we determined there was no violation where die defense put these statements into evidence. That question need not be addressed again. We need only address the constitutional necessity or lack of necessity for Floyd’s consent.
Kurth testified at the 60-1507 hearing that he talked to Floyd about Cody’s inconsistent statements, and that he informed Floyd of his strategic decision that it was more worthwhile to get the “Tom did it” statement in than to keep the “Daddy did it” statement out. Floyd, on the otiier hand, testified that he did not know his son had incriminated him until the prosecutor’s opening statement. He also testified that Kurth never sat down with him to explain the ramifications of admitting Cody’s statement, and that, if Kurth had told him about the “Daddy did it” statement, he would not have agreed to admission of the “Tom did it” statement.
Regardless, certain decisions relating to the conduct of a criminal case are ultimately for the accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to testify. Others are ultimately for defense counsel. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. See State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977). Kurth was not required to obtain Floyd’s consent before introducing Cody’s statement that “Tom did it.”
Floyd’s next two arguments are intertwined. He asserts that Kurth was required to hire an expert child psychologist and challenge Cody’s competence under K.S.A. 60-417 because, had the district court found Cody was “incapable of expressing himself’ or incapable of understanding his duty to tell the truth, “his highly prejudicial "Daddy did if statements would not have been able to come into evidence.”
Kurth did not hire a psychologist, request to interview Cody, or otherwise attempt to determine his competence to testify, because Kurth had no intention of calling Cody as a witness. On the contrary, Kurth testified that it was his intention to have Bolinger or Heidi relate Cody’s statement about Tom, and that he did not even consider consulting a child psychologist. It is obvious that, had Kurth challenged Cody’s competence in regard to the “Daddy did it” statement, he would have undermined his ability to get the "‘Tom did it” statement into evidence. As discussed previously, the decision to admit the statement against Tom was part of Kurth’s “strategy.” Putting aside for the moment the reasonableness of that “strategy” overall, once that “strategy” had been selected, Kurth did not act unreasonably in failing to seek or introduce testimony that might undermine the impact of the “Tom did it” statement.
Finally, with regard to Cody’s statements, Floyd cites as error Kurth’s failure to object to questioning that elicited Bolinger’s and Heidi’s testimony that Cody was a probable eyewitness to the crime. Kurth testified that he had no reason for not objecting, and that he didn’t foresee the prosecutor capitalizing on this suggestion that Cody was present when C.A. was killed by introducing evidence that Cody could only have been with his dad. Again, putting aside for the moment the reasonableness of Kurth’s “strategy” regarding Cody’s statements, his failure to object to this questioning does not constitute error. Having made the decision to admit Cody’s statements that Tom did it, Kurth had no reason to object to the prosecutor’s further inquiry implying Cody was an eyewitness to Tom’s crime.
We now return to the question of whether Kurth’s “strategy” concerning Cody’s statements was objectively reasonable. See Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 (2003). It is true, as the State reminds us, that “ ‘[w]here experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel.’” Crease v. State, 252 Kan. 326, 338, 845 P.2d 27 (1992) (quoting State v. Kandig, 233 Kan. 890, 896, 666 P.2d 684 [1983]). However, even if each of Kurth’s actions was logical and consistent with his chosen strategy, the strategy itself must still pass muster.
Phillips testified at the 60-1507 hearing that the failure of defense counsel to object to the “Daddy did it” statement, even if that meant being unable to present the “Tom did it” statement, fell below the due care required of a reasonably competent defense attorney, and, in her opinion, was “a huge mistake.” Floyd urges us to agree with Phillips that Kurth’s performance falls short when measured against the yardstick of objective reasonableness. See Gleason, 277 Kan. at 644; see also Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000).
According to Kurth, Cody’s initial statement that “Tom did it” was an integral element of proof that Tom, rather than Floyd, committed the crime. Kurth testified at the 60-1507 hearing that the decision not to object to Cody’s later statement that “Daddy did it” was a risk he weighed, and that he concluded the risk was worth taking.
Considering, as we must, all of the circumstances at the time and granting Kurth all the deference he is due, we nevertheless conclude that his strategy regarding Cody’s statements was objectively unreasonable. Cody was only 2 years old when he implicated first his uncle, then his father. In addition, even without Cody’s statements, there was considerable evidence pointing to Tom as the perpetrator: His gun was the murder weapon; he had purchased the bullets; he initially confessed to having killed C.A.; and he led police to the body, which was buried behind the house where he lived. Kurth could have relied on this evidence to support the defense theory. Instead, he doggedly pursued a strategy that he knew would reveal that Floyd’s own son eventually pointed his small finger at Floyd. We agree with Phillips that this strategy was “a huge mistake,” particularly when it included no plan to mitigate Cody’s damaging “Daddy did it” statement. Such mitigation might have taken the form of expert testimony on the likelihood that Cody’s original statement impheating Tom was more accurate than his later statement impheating Floyd, perhaps because the latter was a product of hearing others discuss his father s arrest. Had such testimony been introduced, Kurth could have argued this implication in dosing, particularly after the State made its closing argument suggesting that Cody was an eyewitness who originally said “Tom did it” because his father told him to. But Kurth did none of these things. He put the exculpatory statement in front of the jury, knowing that the inculpatory statement would follow, and did nothing to explain the difference or its significance. Under these circumstances, the mere invocation of the word “strategy” does not insulate Kurth’s performance from constitutional criticism. Compare Mullins v. State, 30 Kan. App. 2d 711, 717-18, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002) (counsel cannot insulate ineffective assistance by labeling it strategy; where outcome of trial depended on child sexual abuse victim’s statements, failure to investigate, employ expert to attack testimony constituted deficient performance).
Having determined that Kurth’s performance was deficient in regard to introduction of Cody’s statements, we now discuss Floyd’s other assertions of error on Kurth’s part.
Failure to Object to Other Evidence
Tames Bolinger’s Testimony
James Bolinger and Catherine Bledsoe testified that Tom attended church regularly. James further testified that, in his opinion, Tom was “a good man,” whom no one spoke negatively about, who obeyed the church’s teachings about die separation of men and women, and who was not the land of man who would “chase women” or “go to bars.”
Floyd argues that this testimony was an inadmissible endorsement of Tom’s religion or godliness, that the witnesses impermissibly vouched for Tom’s credibility, and that Kurth’s failure to object constituted deficient performance.
We disagree. Tom’s credibility was at issue in the case regardless of this testimony. As the district court noted, although Kurth did not provide a strategic reason for his failure to object to this particular testimony, he did bring in evidence to counter it: evidence that Tom had tried to have sex with a dog, that he viewed porno graphic films and magazines, and that he had “messed with” young lads one time at a church function.
In addition, evidence of Tom’s church-going habits was relevant, as it tended to establish his alibi and the nature of his relationship with C.A., who also was a regularly attending member of the church. C.A. did not show up for a church meeting the Friday night of her disappearance, and Tom did. Kurth’s failure to object does not constitute constitutionally deficient representation.
Carreno’s Testimony
Floyd next alleges Kurth was ineffective in failing to object to Carreno’s testimony concerning Tom’s statement to the detective about telling “the truth.” We already addressed this testimony in Floyd’s direct appeal and determined that it was not objectionable because Carreno did not vouch for Tom’s credibility. The context of the testimony demonstrates the officer was referring to “truth” according to Tom. Thus the juiy was presented with Tom’s version of what happened and was left to weigh his credibility, exactly as it was expected to do.
Dunnaway’s Testimony
Floyd also cites Kurth’s failure to object to the Sheriff Dunnaway’s opinion regarding whether Tom’s statement was a “confession.” Although it is not perfectly clear to which testimony Floyd refers, the record reveals that Kurth did object to the prosecutor’s initial questioning of Dunnaway regarding Tom’s messages on the Bolingers’ answering machine. The judge sustained the objection as it pertained to Tom’s state of mind but permitted Dunnaway to testify that he did not consider the messages a confession because it “just told me where the body was at” and not that Tom “had done anything.” Dunnaway also testified that a few days after Tom was arrested, Dunnaway began to have a problem with the arrest because Tom’s story “wasn’t panning out.”
Floyd argues that this testimony was impermissible, and cites our line of Elnicki cases: State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005); State v. Plaskett, 271 Kan. 995, 27 P.3d 890 (2001); and State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986). He relies on these decisions for the proposition that a witness may not express an opinion concerning the credibility of another witness. Of course, this is correct. But, there was nothing objectionable about Dunnaway’s testimony on this basis. He was merely describing the statements and his reaction to them, not stating an opinion about whether they were worthy of belief. In addition, Kurth did object to portions of Dunnaway’s testimony. His representation on this point is not deficient.
Dunnaway also testified that, after C.A. disappeared and before her body was discovered, Floyd made statements to him: “She’s dead isn’t she? Do you know if she’s dead?” When asked if these statements were consistent with the usual reaction of a person concerned with the disappearance of a 14-year-old, possibly a runaway, Dunnaway said, “I think most people put them thoughts out of their mind and still have hope that she was going to be found, which I had hopes that she would be found, be, be all right [sic]. This to me is unusual, yes.”
The district court concluded that this statement was not objectionable, because it was admissible opinion testimony under K.S.A. 60-456. This statement also helped to explain the course of the investigation, which turned from Tom to Floyd. In addition, as lay-witness testimony, the statement was rationally based on the sheriff s perception; if he is regarded as an expert, it was based on data known to him and on his experience as a longtime law enforcement officer. See K.S.A. 60-456(b). We agree with the district court that Kurth’s failure to object to this admissible testimony does not constitute ineffective assistance.
Frost’s Testimony
Detective Troy Frost testified that during an interview with Floyd at the police station, Floyd “got real emotional” and said that he had stopped at the trailer the afternoon C.A. disappeared. Later, and on a number of other occasions, Floyd denied having stopped by the trailer that day. Floyd also told Frost that he loved C.A. The prosecutor asked Frost: “When [Petitioner] said that he had gone to the trailer that day did you believe him?” Frost said yes. The prosecutor then asked: “What [Petitioner] was indicating to you though your questions and his statement how he felt about her was, you think he was being genuine?” Frost responded: “Oh yes.”
Kurth did not object to this questioning and testified at tire 60-1507 hearing that he could not recall any strategic reason for not doing so. Floyd is correct; this was objectionable testimony that invaded the province of the jury.
Suppression Issue
Before trial, Kurth filed a motion to suppress certain statements made by Floyd to police concerning his interest in C.A. At trial, the State introduced the testimony of Sergeant Robert Poppa, who testified that he read Floyd his Miranda rights and that he witnessed Floyd’s written waiver. Kurth stipulated that Floyd was Mirandized. Vanderbilt then questioned Poppa about Floyd’s statements; Floyd had said he considered pursuing a sexual liaison with C.A.
Floyd argues that Kurth’s stipulation constituted deficient representation because it prevented Floyd from raising the suppression issue on appeal. Kurth recalled that he stipulated to it because he knew Floyd had been properly Mirandized. Kurth said that he didn’t think there was a reason to object to the statements because they were not confessions of guilt.
Floyd has not demonstrated that it was deficient for Kurth to act in this way. It is not objectively unreasonable that Kurth would avoid a frivolous objection and instead challenge the substance of the statements and minimize their import on cross-examination, which is what he did. The trial court’s findings are substantially supported by the record, and its conclusion that Kurth was not ineffective is sufficiently based on those findings.
Victim’s Hearsay Statements
Rosa Bolinger and Brandi Wampler testified that C.A. told them she was afraid to be alone at night at the trailer with Floyd. Defense counsel did not object to these hearsay statements. He testified that he did not recall a specific strategy behind his failure to object, but we note that Kurth presented evidence at trial to contradict them. The defense introduced Heidi’s testimony that Floyd treated C.A. like a sister and cared for her very much.
Floyd fails to show that Kurth’s failure to object constituted deficient representation or prejudiced him. Moreover, Bolinger’s and Wampler’s statements were not inadmissible hearsay; they were statements made by an unavailable declarant pursuant to K.S.A. 60-459(g)(3). They pertained to C.A.’s recent perception made in good faith and with no reason to falsify, see K.S.A. 60-460(d), and her then existing state of mind, see K.S.A. 60-460(1). The district judge concluded that any objection would have been overruled. This decision is substantially supported by the record and legally sound.
Mitchell’s Testimony
Floyd next argues that Dr. Erik Mitchell was not qualified to opine regarding C.A.’s shirt, and that Kurth’s failure to object to Mitchell’s statement that C.A.’s shirt and bra probably were pulled up intentionally rather than accidently by dragging or sliding her body constituted ineffective assistance. This argument lacks merit.
First, Mitchell is a forensic pathologist, qualified to give testimony regarding his examination of evidence relative to a dead body, including his conclusions concerning cause of a death and circumstances surrounding a death. His testimony concerning the physical evidence of abrasions indicating dragging, the location of the clothing on the body, and the placement of the gunshot holes led him to believe the placement of the clothing was not consistent with dragging, but rather with intentional positioning. This testimony was not, as Floyd argues, outside the special knowledge, skill, expertise, or training of this witness, see K.S.A. 60-456, and it is unlikely that an objection would have been sustained.
Arfmann’s Statements
Floyd also faults Kurth’s performance regarding his admission of Detective Kirk Vernon’s testimony about statements he had taken from C.A.’s mother, Tommie Arfmann. Arfmann told Vernon that she had gone to look for Floyd on Friday, the night C.A. dis appeared, and that Floyd was not at the dairy where he worked. Arfmann later found him at his home.
On cross-examination, the prosecutor asked Vernon if he had talked to Arfmann since that time and if he was aware that Arfmann had told other law enforcement officers that it was actually “much earlier” than midnight when she went by the dairy. Vernon was not aware of this. Kurth did not object to this questioning.
Floyd argues that Kurth was deficient for failing to object because Arfmann’s later statements were not based on any facts in evidence at trial, and constituted inadmissible hearsay.
Kurth testified in his deposition that he could not recall why he did not object but that he remembered neither he nor the prosecutor wanted to call Arfmann to testify. The State persuasively suggests that Arfmann’s statements were not hearsay because they were not offered to prove the truth of the matter asserted. The prosecutor merely inquired whether the detective was aware Arfmann had changed her story, in order to impeach the detective. Moreover, as long as the prosecutor had a good-faith basis for believing the asserted matter to be true, there was nothing objectionable about his questioning. Arfmann’s son — C.A.’s brother— had previously testified that he was with his mother when they drove to the dairy about 11 p.m. that night. An objection probably would have been overruled.
Catherine Bledsoe’s Testimony
At trial, Catherine Bledsoe related a conversation she had with Floyd shortly after he was arrested and Tom was released, in which she and Floyd agreed that Tom did not kill C.A. Floyd argues that this was inadmissible, damaging, prejudicial testimony concerning Floyd’s mother’s opinion of Tom’s culpability. We agree with the district court’s determination that Floyd fails to meet his burden to show that Kurth’s representation was constitutionally deficient on this point.
Prosecutor’s Closing Argument
Floyd also claims that Kurth was ineffective for failing to object to Vanderbilt’s closing argument because Vanderbilt repeatedly “made improper arguments and argued as fact matters not proven by the evidence.” We agree that several of the prosecutor s statements are troubling.
At one point, the prosecutor said, “The physical evidence shows that Tom didn’t do it.” This statement was unsupported. There was no physical evidence produced at trial that excluded Tom as the killer. On the contrary, certain physical evidence linked Tom to the murder. Tom’s gun was the murder weapon, and the bullets that killed C.A. were purchased by him.
The prosecutor also stated:
“I can’t tell you when [Floyd] did it. But I can tell you who was there. He wasn’t alone. We know there [were] at least three people there, him and [C.A.], and he brought his son. His son sat in the vehicle and he watched Floyd Scott Bledsoe put the gun to the back of his aunt’s head and [pull] the trigger.
“Floyd takes care of the body, gets back in the car, Cody says, “You killed Aunt [C.A.]’ . . . When Floyd Scott Bledsoe convinced his two-year-old son to say Tom did it, as soon as that powerful influence of his father was out of his presence he was comfortable with telling the truth . . . when he goes to [C.A.]’s grave he explains to her, because he was there .... ‘Aunt [C.A.], I didn’t kill you, my dad did.’ ”
Attributing a “Daddy did it” statement to Cody at C.A.’s graveside was unsupported by the evidence. Heidi testified that at C.A.’s graveside Cody said: “Aunt [C.A.], I didn’t shoot you, it wasn’t me.”
The prosecutor also argued that “Mom, Floyd, and Cody explained to you it was Floyd. Tom couldn’t have done it. . . . [H]is wife explains to you . . . that Cody was there. ... A psychologist, based on the information she said, Cody was there. There’s only one way Cody could have been there . . . He was with [his father].” Again, apart of this statement was unsupported. No child psychologist testified that Cody was at the crime scene; no expert testimony regarding Cody was admitted at all.
These statements were outside the wide latitude given a prosecutor in discussing the evidence and thus could have been subject to a sustainable objection. See State v. Dixon, 279 Kan. 563, 590-91, 112 P.3d 883 (2005); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Lacking any strategic explanation in the record for Kurth’s failure to object, and given the repeated nature of the prosecutor’s behavior, we agree that Kurth was ineffective by failing to object to these statements.
Bulletproof Vest
Floyd next takes issue with Kurth’s failure to challenge the district court’s requirement that Floyd wear a bulletproof vest for his own safety. Floyd testified at the 60-1507 hearing that the vest was bulky and obvious. Kurth agreed that the vest was somewhat bulky but testified that the question of whether it was necessary to have Floyd wear the vest in front of the jury “didn’t cross [his] mind.”
Floyd argues that requiring him to wear the vest violated his right to a fair trial, because of its prejudicial effect on the jury, and that Kurth’s failure to object constituted deficient performance. He analogizes his situation to that discussed in Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970), where the Supreme Court questioned the fundamental fairness of hypothetical proceedings in which a defendant would be shackled or gagged.
The analogy is unpersuasive. This court has held that the use of restraint devices creates the distinct possibility of communicating to the jury that a defendant is dangerous, and can compromise the presumption of innocence, but is not inevitably prejudicial. See, e.g., State v. Davidson, 264 Kan. 44, 49-50, 954 P.2d 702 (1998) (prejudicial error where, in reference to defendant’s leg brace, judge told jury that sheriff wanted to prevent individual in custody from escaping); State v. Powell, 274 Kan. 618, 620-23, 56 P.3d 189 (2002) (no abuse of discretion to require defendant to wear stun belt; no prejudice shown). Here, the purpose was not to restrain the defendant, but to protect him. The record indicates that at least two individuals, including the victim’s mother, had made threats against defendant. Kurth had no reason to think that his client’s wearing of a bulletproof vest would be prejudicial, or even objectionable. Floyd fails to establish that the lack of an objection by Kurth was objectively unreasonable.
Failure to Call Witnesses and Admit Other Evidence
Floyd also argues that Kurth was ineffective because he failed to call several witnesses on Floyd’s behalf. Decisions on whether to call a certain witness are strategic and tactical and generally within the exclusive province of the attorney. See State v. Nunn, 247 Kan. 576, 581, 802 P.2d 547 (1990); Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972). Again, the defense strategy in this case was to direct blame at Tom. We have thoroughly reviewed the record on the testimony of the witnesses Floyd suggests were necessary. We conclude that the testimony would have been either inconclusive, cumulative, or, worse, would have confused the jury and obscured tire theory of the defense. Kurth’s failure to call the numerous witnesses cited by Floyd did not constitute deficient performance.
Floyd also cites as deficient performance Kurth’s failure to introduce an answering machine tape of Tom’s messages. However, the State introduced a written transcript of the messages, and Tom read the transcript at trial. Kurth also presented testimony about the tape’s contents through James Bolinger. The tape itself would have been cumulative.
Pretrial Procedural Failures
Floyd alleges that Kurth failed to properly prepare a motion to suppress; failed to accept a continuance offered by the court; and failed to request a change of venue, and that these failures constituted ineffective assistance. We have reviewed the allegations and the record and conclude that Floyd’s arguments are without merit. We see no potential for success on a suppression motion or on a motion to change venue. See State v. Jorrick, 269 Kan. 72, 76, 4 P.3d 610 (2000). And Floyd has not demonstrated the necessity of a continuance; die State’s endorsement of known witnesses did not require it.
Voir Dire
Floyd suggests Kurth failed to conduct a meaningful voir dire, primarily because Kurth’s voir dire was so short. As Floyd notes, it “made up less than 10 pages of trial transcript.” Floyd also argues that Kurth erred in complimenting law enforcement and made one other particularly damaging remark during voir dire.
The record reveals that the prosecutor conducted a thorough voir dire; Kurth participated, made inquiries, made appropriate peremptory challenges, and even singled out a couple of potential jurors to. question in depth. Floyd fails to show that a biased or prejudiced juror was selected or that there was any member of the panel who should have been excused. See State v. Ji, 251 Kan. 3, 13, 832 P.2d 1176 (1992). Under these circumstances, mere length of Kurth’s interaction with venire members does not tell the tale. We do not regard the time he took to complete it as insufficient. We also are not bothered by Kurth’s compliment directed at the police of Jefferson County and the prosecutor. We are confident that these professional courtesies are perceived as exactly that, and no more.
That being said, we have a less positive view of the comparison Kurth drew between Floyd’s case and the Susan Smith case. Near the conclusion of his voir dire, Kurth stated:
“Everybody remember the Susan Smith case? I know it’s been a few years. Anybody recognize that name? Little gal that finally fessed up to drowning her little children? Anybody remember that now few years ago? Remember how she went on TV in front of everybody saying, asking where her children were and what happened and it was emotional, just like this one will be, and you wanted to believe her because you couldn’t believe that somebody would do that to her own children. Ladies and gentlemen, I’m going to tell you that’s the same kind of situation we have here. Don’t decide this case until you’ve heard it all, because you’re definitely going to hear two sides.”
The Smith case gained worldwide attention shortly after it developed, because Smith initially reported to police that she had been carjacked by an African-American man who drove away with her sons still in her car. Smith made tearful pleas on television for the rescue and return of her children. Nine days later, following an intensive, heavily publicized investigation and nationwide search, Smith eventually confessed to letting her car roll into a nearby lake, drowning her children inside.
The State argues tbat Kurth was “simply . . . explaining] to the jury, using a concrete example, the importance of not rendering a decision until they heard all of the evidence” and that this was a tactical decision and not unreasonable. We agree that this was un doubtedly Kurth’s intention, but we view his execution as, at least, clumsy. Floyd testified at the 60-1507 hearing that he had gone on television while police were still searching for C.A. He made a statement about her disappearance, asked for help, and requested that anyone with information contact law enforcement. Given this parallel to the Smith case, Floyd was shocked by Kurth’s reference to the Smith case, because “when she went on TV . . . [s]he had actually killed her children.” Floyd argues that the selection of an impartial panel during voir dire is “perhaps the most important part of a criminal trial” and that counsel’s comparison of his case to the Smith case infected the panel, and thus the entire trial, with unfairness.
We agree that Kurth’s analogy to the Smith case during voir dire was objectively unreasonable. We can think of many better examples he could have cited to illustrate his point that the jury must reserve judgment until it had heard both sides of the story, examples that would not have had the unfortunate parallel of Smith’s televised pleas for return of her children. We address the likelihood of prejudice regarding this deficiency and the others outlined above in the next section of this opinion.
Individual and Collective Prejudice
As discussed above, we recognize that there were episodes when Kurth’s performance fell below the constitutional threshold of objective reasonableness. His representation was deficient in adopting a strategy requiring introduction of Cody’s “Tom did it” statement and thus threatening introduction of Cody’s “Daddy did it” statement; his representation was deficient in failing to object when Frost was questioned about whether he believed Floyd to be telling the truth in certain damaging particulars; his representation was deficient when he failed to object to the prosecutor’s repeated forays beyond the wide latitude given to him in discussing the evidence; and, finally, his representation was deficient when he referred to the Smith case during voir dire.
We nevertheless do not believe Floyd has met his burden under the second prong of our ineffective assistance of counsel analysis. He has not demonstrated that any one of these individual failings, or that these fadings considered collectively, so undermined the fairness of his trial as to impair our confidence in its outcome. See Chamberlain, 236 Kan. at 657 (“Reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.”).
Although Cody’s statement was damaging, given the jury’s knowledge of his age, and inconsistent, we are not prepared to say that it prejudiced Floyd’s case. The State introduced other, far more damaging evidence, principally Tom’s recitation of Floyd’s admissions the day after C.A.’s disappearance. As we observed in our opinion on Floyd’s direct appeal, Tom’s credibility was critical; and the jury chose to believe him.
With regard to Frost’s testimony, as the district court noted, Frost’s judgments about Floyd’s credibility comprised very small portions of tire trial evidence; and, even if Frost’s objectionable statements had been omitted, the jury still would have heard Floyd’s statements that he went to the trailer the day C.A. disappeared and that he loved her.
Our assessment of the likely effect of the prosecutor’s improper arguments during closing is similar. Despite them, we note that the prosecutor also repeatedly argued that the perpetrator was either Tom or Floyd: “[T]here’s only two people that really could have done it ... . Now, I’m arguing to you that Floyd did it.” This was the essence of this case, and the prosecutor’s missteps in reciting what the evidence showed were not enough to take the jury’s eyes off this ball.
Finally, although we view Kurth’s reference to the Smith case as clumsy and regrettable, we do not accept Floyd’s assertion that the rest of the trial was poisoned as a result. Kurth did make his true point clear. He told the juiy he was mentioning Smith because her case demonstrated the value of waiting to hear both sides of a particular story. He succeeded in communicating that Tom’s version of events would not be the only version worthy of belief.
Floyd also urges us to hold that Kurth’s mistakes amounted to reversible ineffective assistance because Kurth’s representation of a different defendant in a separate case merited that treatment. This argument has no merit. Kurth’s performance in other cases is not relevant here. We also are unmoved by Floyd’s citation to sev eral extrajurisdictional cases in which courts have reversed convictions after determining that counsel’s “strategy” in introducing evidence was unreasonable where the result of such admission was also “fundamentally unfair,” Doles v. State, 786 S.W.2d 741, 747 (Tex. Ct. App. 1989); “devastating,” People v. Phillips, 227 Ill. App. 3d 581, 589, 592 N.E.2d 233 (1992); or “inherently prejudicial,” Emilio v. State, 263 Ga. App. 604, 605, 588 S.E.2d 797 (2003). For the reasons already discussed, we do not view the errors made by Kurth as “fundamentally unfair,” “devastating,” or “inherently prejudicial.”
On the record before us, this was a difficult case. Two brothers accused each other of vile crimes. There was ample evidence to support each accusation. The jury, after weighing all of its substance and the credibility of the many witnesses, was persuaded that the State prosecuted the right brother. Although, in the hands of another defense lawyer, the case may have been tried to another conclusion, “may” is not good enough. In order to reverse, we must be convinced that, but for counsel’s deficiencies, there was a reasonable probability of a different outcome. Gleason, 277 Kan. At 644. We are not so convinced. Floyd’s trial, while not perfect, was fair. See State v. Johnson-Howell, 255 Kan. 928, 952, 881 P.2d 1288 (1994).
Affirmed.
Luckert, J., not participating.
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On December 8, 2006, this court suspended the respondent, Kent O. Docking, from the practice of law in Kansas for a period of 90 days. See In re Docking, 282 Kan. 715, 147 P.3d 139 (2006). Before reinstatement, the respondent was required to pay the costs of tire disciplinary action and pay restitution as ordered by this court.
The Disciplinary Administrator s office has verified that the respondent has fully complied with the conditions imposed upon him. This court finds that the respondent, Kent O. Docking, should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas as of the date of this order.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Johnson, J.:
Herbert M. Mooney and Enid G. Mooney (landowners) appeal the jury’s determination of the value of their property which was taken by the City of Overland Park (City) via its eminent domain powers. The landowners challenge the district court’s exclusion of their proffered testimony about a prior sale of a portion of their land and the court’s admission of testimony about a prior appraisal. Finding no reversible error, we affirm.
The property at issue is a tract of land in Overland Park of approximately 1.02 acres, which was improved with a building used by the landowners to operate a specialized home electronics equipment business known as Accent Sound. The City took tire property in September 2003 through a condemnation action.
Apparently in anticipation of the taking, landowners hired John Schmidt to appraise the value of their property. He opined the property should be valued at $700,000. Landowners submitted Schmidt’s written appraisal to the court-appointed appraisers in the condemnation action. The court-appointed appraisers set the value of the condemned property at $615,000.
Landowners appealed the valuation issue to the district court, where they received a de novo jury trial. The landowners presented the expert testimony of F. Lee Jones, whose total appraised value for the property was $887,000. The City called two appraisers; Bernie Shaner valued tire property at $535,000, while Arthur Donoho valued it at $615,000.
During his direct testimony, Herbert Mooney was not permitted to testify that, in 2001, landowners had sold a small tract in the corner of their property to Southwestern Bell Telephone Company for the installation of a DSL switch. Mooney proffered that Southwestern Bell had paid approximately $10.50 per square foot for the comer piece.
On cross-examination of Mooney, the City’s counsel was permitted to elicit that landowners had previously retained Schmidt to appraise the property and that Schmidt’s valuation was $700,000, as opposed to the landowners’ trial expert opinion of $887,000. On redirect, Mooney testified as to the reasons that Schmidt’s appraisal had undervalued the property.
The jury awarded tire landowners $620,000. The landowners appeal, claiming evidentiary errors in the jury trial.
EXCLUDED TESTIMONY
The landowners claim that the district court abused its discretion in excluding Herbert Mooney’s testimony about the Southwestern Bell sale. Citing to City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005), they contend that Kansas law is well settled that a landowner is a competent witness to testify as to the value of his or her property in an eminent domain proceeding. Once a witness is qualified as an expert, the court cannot regulate the factors used by the expert or the mental process employed to reach a conclusion; those matters should be tested by cross-examination. See City of Wichita v. Eisenring, 269 Kan. 767, 778, 7 P.3d 1248 (2000). Accordingly, the landowners argue that Herbert Mooney should have been allowed to describe the prior sale in order to support his contention that the remaining land being condemned was worth $10.50 per square foot.
The City relies on precedent establishing the district court as a gatekeeper for the admission of comparable sales evidence, investing the district court with discretion to look at “the factors of whether the sale was bona fide, voluntary, not too remote in point of time, and if the conditions of the property and surrounding area were sufficiently similar to those on the date of the talcing [of the condemned property].” Consultation, Inc. v. City of Lawrence, 5 Kan. App. 2d 486, 488, 619 P.2d 150 (1980), rev. denied 229 Kan. 669 (1981). The district court “has broad discretion in determining what evidence will be allowed in an eminent domain proceeding.” U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 (1984). In essence, the initial district court inquiry is simply a determination as to the relevance of the proffered comparable sales evidence.
“Generally, when considering a challenge to a district judge’s admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted].
“Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of tire rule in question. [Citation omitted].” State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006).
Here, the City defends the district court’s decision to exclude the testimony on two bases: (1) the small corner piece sold to Southwestern Bell was too dissimilar to the 1.02 acres, improved tract being condemned; and (2) the sale was not a voluntary, arm’s length transaction because Southwestern Bell had the power of eminent domain. The parties’ arguments on these points invite a commonsense analysis of relevance. See First Savings Bank v. Frey, 29 Kan. App. 2d 436, 440, 27 P.3d 934 (2001) (“The determination of relevancy is a matter of logic and experience, not a matter of law.”).
Taking the City’s arguments in reverse order, we reject the contention that the sale was disqualified because of Southwestern Bell’s power of eminent domain. Granted, the general rule is that a sale of land subject to condemnation by the purchaser but which is transferred by private sale and deed cannot be used as comparable sale evidence. See Rostine v. City of Hutchinson, 219 Kan. 320, 329, 548 P.2d 756 (1976); Searcy v. State Highway Comm., 145 Kan. 709, 711-12, 67 P.2d 534 (1937). Nevertheless, that rule is inapplicable where the evidence is such as to indicate that an arm’s length transaction occurred. See Cain v. City of Topeka, 4 Kan. App. 2d 192, 194-95, 603 P.2d 1031 (1979), rev. denied 227 Kan. 927 (1980).
The City appears to suggest that the very existence of the purchaser’s power of eminent domain indicates a real possibility that the buyer will pay more to obtain land than it is worth. The invalid logic of that suggestion can be illustrated as follows: An entity with the power of eminent domain is one that can legally condemn and obtain land at its fair market value; Southwestern Bell is an entity possessing the power of eminent domain; therefore, Southwestern Bell is an entity that will obtain land by paying more than its fair market value. Obviously, one can perceive that occasionally an entity may weigh the cost of an eminent domain proceeding against increasing its offer to entice a voluntary sale. Nevertheless, it is counterintuitive to suggest that the possession of the power of eminent domain invariably leads to an inflated purchase price.
More importantly, the only evidence in the record indicates that the possibility of condemnation was not a factor in the Southwestern Bell sale. In the landowners’ proffer, their attorney specifically said drat there was no compulsion to sell and the purchaser did not threaten to employ its power of eminent domain, but rather that “it was an outright transaction for $10.50 a square foot.” At oral argument, the City conceded that there was nothing in the record to suggest that the landowners were even aware that Southwestern Bell possessed tire power to condemn their property. Indeed, the district court did not rely on a lack of bona fides in excluding the evidence.
We perceive that the district court found tire small, unimproved comer tract sold to Southwestern Bell to be so dissimilar to the large, improved tract being condemned, that the sale “was not relevant enough to get into it.” We agree.
The landowners contend that the amount they were willing to voluntarily accept for the previously excised portion of their property, i.e., $10.50 per square foot, is indicative of what they would voluntarily accept for the remaining 44,431 square feet of land being condemned. While there may be some material or logical connection between the prior sale and the current value of the land, the question for the jury was the value of the land and improvements, including the building.
Accepting the landowners’ figures, 44,431 square feet of land at $10.50 per square foot yields a land value of $466,525.50. Neither the landowners’ proffer nor their brief on appeal explains how that land value is relevant to their contention that the jury’s award of $620,000 was inadequate. Pointedly, landowners do not translate their estimate of land value into a final, total value of the property as a whole.
Landowners argue that the prior sale evidence was crucial to bolster their expert’s opinion that the land was worth $12.50 per square foot and to refute the land value assigned by the City’s experts, i.e., $3.50 and $6.00 per square foot, respectively. That simplistic argument is misleading.
Each of the experts testified about the three commonly used approaches to the valuation of property. In the cost approach, the appraiser assigns a value to the land based upon comparable land sales in the area. Then, the cost to build the structure on the property is calculated and depreciation is deducted to arrive at the current value of the building. The sum of the land value and the depreciated building value yields the total value under the cost approach method.
Under the market or sales approach, the appraiser looks at sales of comparable properties in the area to arrive at a total value of the improved properly. The income method utilizes a formula to capitalize the fair rental value of the property being appraised. Neither the sales approach nor the income method involves the assignment of a separate value to the land.
Interestingly, none of the three experts used their calculated cost method value as their final opinion of the fair market value of the landowners’ property. For instance, the landowners’ expert, utilizing $12.50 per square foot land value, arrived at a cost method value of $1,022,000. Yet, that expert utilized the market or sales approach to offer his opinion to the jury that the property was worth $887,000 for condemnation purposes. In that context, where a separate land value was not part of the calculus, the Southwestern Bell sale had no material or logical connection to the fair market value of the property as a whole, i.e., was not relevant.
Even if one were to stretch the concept of relevance, the district court did not abuse its discretion in excluding the testimony. “[Ejxpert testimony must be helpful to the jury.” State v. Heath, 264 Kan. 557, Syl. ¶ 5, 957 P.2d 449 (1998). It is difficult to fathom what the jury was supposed to do with the proffered information, given that the other appraisers did not directly arrive at their final fair market value opinion using a separate land value. The district court did not err.
ADMITTED TESTIMONY
In ruling on the landowners’ motion in limine to exclude any mention of the valuation opinion of their first appraiser, Schmidt, the district court found that the opinion could be admitted as a statement against interest for impeachment purposes, but not as expert testimony. On appeal, landowners assert that the district court abused its discretion in allowing the testimony as to Schmidt’s opinion of tire property’s value, because Schmidt was not identified as an expert in the eminent domain appeal. See K.S.A. 60-226(b)(6)(A). Also, they complain that Schmidt was not available for cross-examination. See K.S.A. 60-460(a).
The landowners acknowledge that we have previously said: “ ‘Statements made by or attributable to the owner which are inconsistent with his valuation position at trial are admissible as admissions. They are thus considered exceptions to the hearsay rule of exclusion, and may be introduced by the condemning authority as substantive evidence of value.’ ” Sealpak, 279 Kan. at 805 (quoting 5 Nichols on Eminent Domain § 18.12[1] [3d ed. 2003]).
The landowners attempt to distinguish the Sealpak holding by asserting that they did not personally testify that their property was worth $700,000. Rather, it was Schmidt who offered the valuation opinion, and it was their attorney who presented the written appraisal to the court-appointed appraisers. They point to cases which have held that appraisals made by a third party who is unavailable for cross-examination are inadmissible to establish the property’s value. See Mettee v. Urban Renewal Agency, 213 Kan. 787, 789, 518 P.2d 555 (1974); Love v. Common School District, 192 Kan. 780, 784, 391 P.2d 152 (1964). However, Mettee and Love dealt with appraisals that were completely unrelated to the matter being litigated and that had not been adopted or proffered by the landowner.
We have no problem finding that Schmidt’s written appraisal was a statement attributable to the Mooneys. When the owners of land subject to an eminent domain proceeding hire an appraiser to assess the value of the condemned land and submit the ensuing written appraisal to the court-appointed appraisers, the valuation opinion is a statement attributable to the landowners which is admissible as an admission under K.S.A. 60-460(g) in a subsequent trial de novo in the eminent domain proceedings. The district court properly allowed the City to use Schmidt’s valuation opinion in the cross-examination of the landowners.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover the difference between the purchase price of corporate shares of stock paid to the defendant, a seller of stocks, bonds and securities, and the amount defendant had paid to plaintiff on his account.
Defendant appeals from the order overruling its demurrer to the amended petition. The question is whether the action is barred by the three year statute of limitations.
In view of appellant’s contentions that neither petition stated a cause of action it is necessary to review the substance of both petitions. The original petition was filed March 28, 1950. It, in substance, alleged:
The defendant, Waddell & Reed, Incorporated, was a nonresident corporation authorized and registered with the corporation commission to sell stocks and bonds in this state; W. F. Oderman was nominated and appointed as a salesman of defendant by defendant’s application to the corporation commission; the first sale of stock to plaintiff was on December 12, 1946, and was made by Oderman; he presented to plaintiff an identification card executed by the defendant company which read:
“This will identify William Fred Oderman as an accredited representative of Herrick, Waddell & Co., Inc.
“While so employed: (s) he is covered under the terms and conditions of a $100,000.00 Fidelity Bond which is effective as of September 13, 1946.
“Herrick, Waddell & Co., Inc.
“By: Clark C. Lamb “Vice President”
The petition further, in substance, alleged:
Oderman informed plaintiff he was an accredited representative and agent of defendant for the sale of securities within this state and had for sale sixty-five shares of Midland stock at a price of $50.00 per share; such stock was a part of the assets of an estate which was in the process of administration and that the stock would be delivered to plaintiff in several months; plaintiff relied upon the apparent authority of Oderman and agreed to purchase such stock; Oderman agreed to deliver it in several months as soon as possession of the same could be obtained from the estate; plaintiff paid defendant the sum of $3,250.00 at that time.
The petition then in separate paragraphs alleged three additional purchases of stock, in substance, as follows: All purchases were made through Oderman; the second purchase of ten shares of Midland stock at $50.00 per share, to be delivered within a reasonable time, was made February 3, 1947; plaintiff paid defendant $500.00 on that date; the next sale of forty shares of H. D. Lee stock at $32.00 per share was made June 12, 1947, and was to be delivered within a reasonable time; plaintiff at that time paid defendant $1,280.00; the last and fourth purchase was of thirty-two shares of H. D. Lee stock at $32.00 per share to be delivered within a reasonable time; the sale was made July 8, 1947, and plaintiff paid defendant $1,-024.00 on that date.
The petition further, in substance, alleged:
Plaintiff performed all the conditions of the sale but defendant failed and refused to deliver the stock; plaintiff had received from Oderman two payments to apply on the aforesaid account, said sums being $393.75 on December 23, 1948, and $500.00 on February 5, 1949; defendant refused to deliver the stock or to return any further sums although due demand had been made therefor; the defendant denied Oderman was their duly authorized agent at the time aforesaid; by reason of defendant’s conduct in vesting Oder-man with the previously mentioned identification card and by registering Oderman as its agent for the sale of securities in this state, without limitation, in the office of the corporation commission, defendant was estopped to deny Oderman’s authority to sell the securities in question; defendant was indebted to plaintiff in the sum of $5,160.25 with interest.
The petition prayed for judgment in that amount with interest.
Appellant did not demur to the original petition filed March 28, 1950, but filed a motion to require appellee to specifically state and number the respective causes mf action. The motion was sustained and appellee filed an amended petition August 1, 1950.
The amended petition set forth the substance of the original petition but separated the various sales transactions into four distinct causes of action. It was alleged that out of the total amount of $893.75 which had been returned by Oderman to appellee to apply on the general balance of account appellee credited $593.75 on the account represented by the first cause of action and $100.00 on each of the accounts representing the three remaining causes of action.
Appellant’s first contention is the original petition stated no cause of action for the reason the separate transactions were not set forth as separate and distinct causes of action; that the statute of limitations must therefore be held to have run before August 1, 1950, the date the amended petition was filed. In support of its contention the original petition stated no cause of action for the reason just stated, appellant relies upon Burdick v. Investment Co., 71 Kan. 121, 80 Pac. 40, and cases cited therein; and Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 854, 22 P. 2d 965. Neither of these cases is controlling. The Burdick case was decided prior to the 1909 revision of the code of civil procedure. After the 1909 amendment of that code it expressly was made discretionary with the trial court whether it would require several causes of action or different defenses to be separately stated and numbered. (G. S. 1949, 60-741; Mullarky v. Manker, 102 Kan. 92, 96, 170 Pac. 31; see, also, Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469, and Sanders v. Visser, 165 Kan. 336, 194 P. 2d 511.) It follows such a ruling now resting in the discretion of the trial court is ordinarily not subject to review and that is always true unless the ruling prejudices some substantial right of the party concerned. (Nelson v. Schippel, supra.)
Moreover the action in the early Burdick case, supra, governed by the old rule was dismissed for failure to comply with a previous order to separately state and number the respective causes of action. The decision in the later Sluss case, supra, involved a demurrer and was based upon the doctrine that plaintiff by successfully resisting various motions had made it impossible to ascertain upon what definite theory he relied for recovery. Furthermore in the instant case the motion to separately state and number was sustained and appellee complied with the order. It connot be said the original petition failed to state a cause of action upon the ground alleged. That conclusion also follows with the application of the established rule that if a petition states a cause of action but does so imperfectly and with insufficient detail it may be amended when the amendment only enlarges or amplifies the averments of the original petition. (Schulte v. Westborough, Inc., 163 Kan. 111, 115, 180 P. 2d 278, 172 A. L. R. 259, 265; Smith v. LaForge, 170 Kan. 677, 228 P. 2d 509, and cited cases.) It follows it must be held the action was commenced March 28, 1950, the date the original petition was filed.
In view of the allegations- of the petition were any of the four causes of action barred by the three year statute? Touching this subject appellant first contends each cause of action accrued on the date the transaction was consummated and that the allegations of the amended petition relative to delivery of the stock “within a reasonable time” are immaterial and do not extend the time for filing the action. Delivery within a reasonable timé was the agreement alleged in the second, third and fourth causes of action. It will be recalled the first cause of action alleged an agreement to deliver the stock “in several months as soon as possession of the same could be obtained from the estate” which was in process of administration. Appellee argues the contract was to deliver the stock as alleged and consequently the time for delivery was not on the date the stock was purchased and the cause of action did not accrue until appellant breached the alleged contract. Appellee further asserts that under these allegations the question pertaining to what constituted reasonable time for delivery is a fact to be determined by the jury and not a question of law to be determined on demurrer. We need not pursue these contentions.
If the allegations concerning the alleged agreement with respect to the time of delivery were the only allegations that determine whether the instant action was filed in time the contentions concerning the time of delivery would be important. These, however, are not the only facts pleaded. If the demurrer was properly overruled on any theory we, of course, cannot reverse the ruling.
The amended petition, in substance, alleged:
Appellee had received from Oderman to apply “on the general balance of account” designated sums of money and appellee (the creditor) had applied those amounts on the respective causes of action.
Absent direction by the debtor on which particular transaction a payment shall be applied the creditor has a right to apply it on any of a number of transactions. (King v. Sutton, 42 Kan. 600, 22 Pac. 695; Lumber Co. v. Workman, 105 Kan. 505, 185 Pac. 288; Neal v. Gideon, 157 Kan. 1, 138 P. 2d 419.) Payment on a debt by the debtor tolls the running of the statute of limitations. (G. S. 1949, 60-312.) Payment by a debtor s authorized agent, of course, has the same effect.
The dates of the respective purchases were: December 12, 1946; February 3, 1947; June 12, 1947; July 8, 1947.
The action was filed March 28, 1950. Three years had not expired between that date and the dates of the third or fourth transactions and as to them no application of credits was necessary to toll the statute of limitations. The payments to apply on the general balance of account were made December 23, 1948, and February 5, 1949. Three years had not expired between either of those dates of payment and March 28, 1950. It follows neither the first nor second causes of action was barred.
Appellant frankly concedes it presented its demurrer to the amended petition to the trial court on the theory all four causes of action were barred by the statute of limitations. In its brief, however, it now also challenges the sufficiency of the amended petition to state a cause of action contending it does not allege authority of its agent, Oderman, to make the payments to appellee which appellee credited as previously indicated.
In view of appellant’s admission with respect to the limited question presented to the trial court and the correctness of the trial court’s ruling on that question we shall not undertake to treat a wholly different contention advanced for the first time on appellate review. In fact, to treat the instant contention would not constitute appellate review but an exercise of original jurisdiction in a case over which this court is not vested with such jurisdiction. Furthermore it is entirely unfair to a trial court to attempt to obtain a reversal of its order without having first given that court an opportunity to rule on the question presented here. If the question were jurisdictional, which it is not, a wholly different problem would be involved.
The order overruling the demurrer presented on the theory the causes of action were barred is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages for wrongful death in an automobile accident. Defendant appeals from an order overruling his demurrer to plaintiff’s evidence.
For present purposes it may be said the pleadings disclosed the following: In her petition plaintiff alleged that she was the duly appointed and qualified administratrix of the estate of Charles Edward Adams, Jr., hereafter referred to as Adams; that on the evening of July 27, 1949, Adams was a passenger in an automobile driven by Duane Hendershot traveling west on U. S. Highway 154 east of Bucklin, Kansas, and as the automobile approached a private drive on the Dennis land on the south side of the highway, defendant Dennis drove his pickup truck from behind a tree onto the highway and into the path of the Hendershot automobile; that at the same time a third automobile was approaching from the west; that Hendershot first attempted to pass the Dennis truck on the right side but was unable to do so on account of the close proximity of the ditch and turned to the left to try to pass the Dennis truck on the left; that on account of the close proximity of the car coming from the west Hendershot was unable to pass the Dennis truck and his automobile went into the ditch on the south side of the highway, turned over and Adams received injuries from which he died. It was alleged that Dennis was negligent in failing to stop before entering upon the highway from the private drive, in failing to look for approaching traffic, in failing to see the Hendershot car, in failing to yield the right of way, and in turning left on the highway across the line of travel of the Hendershot car and occupying Hendershot’s side of the road at a time when his car was so close to defendant’s truck as to constitute an immediate hazard, and that such negligence was the proximate cause of Adam’s death.
Defendant’s answer charged that Adams and Hendershot were engaged in a joint venture and that the damages sustained were caused and contributed to by the negligent acts of Adams and Hendershot in seventeen particulars, which will be referred to later insofar as is necessary.
At the trial extensive stipulations were made which included that Adams and Hendershot were making the automobile trip for their mutual benefit and each had an equal voice in the conduct of the trip and tire management of the automobile; that a private drive opens out from the Dennis land on the south side of the highway and that about fifty feet east of the driveway and near the edge of the highway was a large tree in full foliage. Evidence in support of plaintiff’s allegations was received, and at the close defendant demurred for the reason no cause of action was proved; that the evidence proved defendant was not guilty of any act of negligence but did prove that Adams and Hendershot were guilty of negligence. This demurrer was overruled and defendant offered his proof and apparently plaintiff offered some rebuttal, when defendant renewed his previous demurrer, which was again overruled. Ry way of explanation it is noted the cause was submitted to a jury, which failed to agree. In due time defendant perfected his appeal from the ruling on the demurrer.
Our review of the evidence is made in view of the fact that the only questions involved are whether Dennis was guilty of negligence, and if he was, whether Adams and Hendershot were guilty of contributory negligence, and also in view of our oft stated rule that in testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall con sider the evidence favorable to the plaintiff and disregard that unfavorable to him, shall not weigh any part that is contradictory nor any differences between his direct and cross-examination, and if, so considered, there is any evidence which sustains the plaintiff’s case the demurrer shall be overruled.
The evidence disclosed the following physical features: U. S. Highway No. 154 is a hard surfaced road which runs east and west along the north side of the Dénnis farm. On the Dennis farm there are a house, barn and improvements and from the immediate area about them a private roadway runs in a northwesterly direction to the highway. About 50 feet east of the private roadway and close to the south edge of the highway is a large tree with branches to the ground and with a diameter of about 30 feet. About 2,000 feet east of where the private drive meets the highway is a rise of ground and from that point west the view is unobstructed to a point some distance west of the private driveway.
The evidence as to events leading up to Adams’s death disclosed that Adams and Hendershot were riding west in a Mercury coupe driven by the latter; that at the time they reached the point 2,000 feet east of the private driveway, they were going at a speed of about 80 miles per hour. Hendershot saw the Dennis pickup truck going out of his yard to the private driveway and toward the highway at a speed of from 10 to 15 miles per hour. Hendershot slowed down to a speed of about 65 miles per hour. He stated he thought Dennis would stop at the highway. Dennis passed behind the tree and three or four seconds later came from behind the tree and went upon the highway and turned to the left or west. At the time Dennis came from behind the tree and upon the highway Hendershot was about 300 feet east of the driveway and a third car was approaching from the west. Hendershot thought there was room to pass Dennis on the north side and speeded up and drove so that his right wheels were on the north shoulder, but when he got within 100 feet Dennis had come over to the north side of the highway and had turned to the west so that Hendershot did not have room to pass between him and the ditch on the north side of the highway and he tried to turn to the left and did so. In doing so he avoided a collision with Dennis but lost control of his car which went into the south ditch and turned over. Adams was thrown out and received injuries from which he died.
Appellant argues that there is no statute which requires him to stop before entering upon the highway from his private driveway, and that the only statute bearing on the matter is G. S. 1949, 8-553, which reads as follows:
“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on said highway.”
He seems to concede inferentially that under that statute it was his duty to have yielded the right of way to Adams and Hendershot if the word “approaching” as used in the statute be construed to mean “in proximity to” or “within the limits of danger,” and as authority it should be so construed he directs attention to Packar v. Brooks, 211 Minn. 99, 300 N. W. 400, and Wakefield v. Horn, 109 Cal. A. 325, 293 Pac. 97. On that theory he argues that plaintiff’s evidence discloses that as Adams and Hendershot were 300 feet away when he came up to the highway, their car and his truck were not in proximity to each other nor within the limits of danger. In our opinion the statute above quoted must be read in connection with the preceding statute (G. S. 1949, 8-552) which provides that the driver of a vehicle shall stop at the entrance to a through highway, shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on said through highway as to constitute an immediate hazard. It may be conceded that a private driveway meeting a through highway does not constitute an intersection as that word is defined in the statute (G. S. 1949, 8-501), but that section does set a standard which seems applicable to the case at bar, and a standard for which appellant contends in part. Appellant says there was no evidence he looked to the east, but had he looked he would have seen only Hendershot’s car at a distance of 300 feet away and that he had ample time to cross the highway ahead of the oncoming car. The argument stops short of all the facts. If appellant did not look he was negligent. If he did look he must have seen the Hendershot car coming at no less than 65 miles an hour. Stated another way, Hendershot’s speed would brilig his car to the driveway in about 3 seconds. Further the evidence does not disclose that Dennis merely crossed from one side to the other — he drove upon the highway and turned directly along the highway in the path of the oncoming Hendershot car. It cannot be said as a matter of law he was without negligence.
Appellant also contends that plaintiff’s evidence disclosed that Adams was guilty of negligence contributing to his injuries and death. He directs attention to the stipulation that Adams and Hendershot were engaged in a joint venture and that each had an equal voice in the management of their automobile, and states that any defaults of Hendershot are chargeable to Adams, and that may be conceded. Appellant’s argument that Adams was guilty of negligence is summarized. Our attention is directed to G. S. 1949, 8-532, providing for speed restrictions, on the driving of motor vehicles, to the definition of contributory negligence in Cruse v. Dole, 155 Kan. 292, 295, 124 P. 2d 470, and to the allegations of negligence contained in the answer, and it is then argued that Hendershot saw the Dennis truck proceeding along the private drive toward the highway when Hendershot was 2,000 feet to the east; that he took his foot off the throttle and slowed down to 65 miles per hour but did not use his brakes and when Dennis reached the highway Hendershot was about 300 feet away and then speeded up and first attempted to pass on the right side of Dennis and when about 100 feet from Dennis then attempted to go to the left with the result his car was upset. Expanding on the facts as stated it is contended that Hendershot’s speed contributed; that he did not correlate his speed and ability to stop (Eldredge v. Sargent, 150 Kan. 824, 832, 96 P. 2d 870); that Hendershot’s conduct fell below the standard to which he should have conformed for his own protection, and that all of plaintiff’s evidence disclosed that Hendershot was guilty of negligence which was the legal cause of the injuries and death of Adams. In support of his argument appellant directs our attention to certain of our decisions which we find it unnecessary to mention or discuss. His contention might be sound if the facts relied on by him were the only facts disclosed by the plaintiff’s evidence.
While it was shown that Hendershot was driving at 80 miles per hour, 2,000 feet east of the private drive, when he saw the Dennis truck he slowed down to 65 miles per hour a considerable distance away from that point, and proceeded at what was not an unlawful speed. While he was proceeding west Dennis was coming down his driveway and passed entirely from sight behind the tree of 30 foot diameter just east of the driveway and near the edge of the highway. During all of that time Hendershot had a right to believe that Dennis would look to the west and the east to learn whether oncoming traffic compelled him to yield the right of way. We need not debate whether or not Dennis looked, or if he looked failed to see or ignored what he saw, for at a time when Hendershot was about 300 feet in distance and slightly over 3 seconds in time away from the private drive, Dennis proceeded upon his driveway and onto the highway. Appellee argues that those facts disclose that Hendershot had a right to rely upon the assumption that Dennis would obey the law and would not negligently proceed upon the highway; and that when Dennis did so under the circumstances, an. emergency was created that was the result of the acts of Dennis and not of his acts, and negligence cannot be charged against him, citing among others our decisions in Railroad Co. v. Langley, 70 Kan. 453, 78 Pac. 858; Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663; Barzen v. Kepler, 125 Kan. 648, 266 Pac. 69; and Schulz v. Chicago, Rock Island & Pac. Rld. Co., 167 Kan. 228, 236, 205 P. 2d 965. In the last cited case it was said:
“The rule in this jurisdiction is well established that in such a situation one who, by the negligent act of another, is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to-the better course to pursue, is not held to the strict accountability required, of one situated under more favorable circumstances and is not guilty of contributory negligence as a matter of law if he does not exercise the greatest-prudence or best judgment or choose the wisest or safest course in attempting, to avoid the perils of the situation with which he is suddenly confronted (Edgerton v. O’Neil, 4 Kan. App. 73; Railroad Co. v. Langley, 70 Kan. 453, 78 Pac. 858; Eaton v. Salyer, 135 Kan. 411, 10 P. 2d 873).”
We are of the opinion that under the facts disclosed by all of the-evidence it was a fair question for the jury whether Hendershot was guilty of negligence that was a proximate or legal cause of the-injuries to and death of Adams, and that it may not be said as a. matter of law that he was.
The judgment of the trial court in ruling upon defendant’s demurrer to plaintiff’s evidence is sustained.
Hajrvey, C. J., dissents. | [
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The opinion of the court was delivered by
Parker, J.:
This is a case wherein Betty Davis, second wife and widow of Herbert L. Davis, deceased, appeals from a judgment of the district court of Harper county, Kansas, affirming' orders of the probate court of that county and allowing the claim of Ida Georgia Davis, the first wife of the decedent, acquiesced in by her daughters, Ellenor Atkinson and Mary Jean Steward, for specific performance of a postnuptial contract between the decedent and his first wife along with a supplemental contract between the same parties and an accounting for rents from real estate. Involved also is a cross-appeal from an order of the district court disallowing a claim made by Ida Georgia Davis under the provisions of G. S. 1949, 59-1504, for an allowance of attorneys fees incurred by her in the institution and prosecution of the proceeding.
In a preliminary way it can be said Ida Georgia Davis instituted the proceeding in probate court by the filing of a petition wherein she sought the relief heretofore indicated but that due to the fact her two daughters by answer admitted all the allegations of her petition and adopted its averments and asked for the relief therein claimed the contest in both the probate and district courts was between the petitioner and the daughters on the one hand and the respondent, Betty Davis, on the other. For that reason, in the interest of brevity, except when otherwise specifically indicated, the term "claimants” as hereinafter used in. this opinion has reference to the mother and the two daughters and the term “respondent” to Betty Davis.
At least two contentions advanced by the parties are of such character we deem it advisable to discuss and dispose of them contrary to the usual practice in advance of a factual statement.
One specification of error relied on by the respondent and argued at length is that the district court erred in admitting the transcript of testimony taken in the probate court of Harper county. We note from the record that when the case was called for trial in the district court all of the parties, including the respondent, stipulated in open court that the cause should be tried upon the transcript of evidence taken in probate court together with all the pleadings, exhibits, and depositions therein introduced without the introduction of further evidence. Under such circumstances there is no merit to this claim of error. Having stipulated as above indicated the respondent cannot now be heard to say that the trial court in deciding the case erred in doing the very thing she had agreed that it might do and the mere fact, as will presently be disclosed, additional evidence was introduced at the trial did not preclude it from giving consideration to the transcript in accord with the stipulation of the parties.
Early in their briefs the claimants make the statement that by stipulation the cause was tried in the district court upon a transcript from probate court without further evidence and then suggest, citing decisions to support their position, it is the duty of this court to review the record and decide what the facts establish, substantially in the same manner as it would if this were an original action. There are cases where the rule on which claimants rely has application but this is not one of them. The record discloses that, regardless of the stipulation to which we have referred, parol evidence was offered and received in the district court on many, if not all, of the issues raised by the pleadings. In that situation all this court is required to do on appellate review is to determine whether the trial court’s findings as to the facts are supported by substantial competent evidence. If so its findings will not be disturbed.
The rule applicable under the foregoing conditions and circumstances is stated in In re Estate of Rinker, 158 Kan. 406, 147 P. 2d 740, where it is held:
“In an action to defeat the probate of a will on the ground it had been revoked in the manner provided for in G. S. 1943 Supp. 59-611 material parol testimony as well as written evidence was received. Held, the trial court is the trier of the facts and the supreme court will not try de novo the issues raised by the pleadings.
“When in an action of the character described in the preceding paragraph of the syllabus there is substantial, competent evidence to support the findings of the trial court, this court will not review the evidence for the purpose of determining its weight and precise preponderance and will treat such findings as conclusive on appeal even though the record discloses some evidence on which contrary findings might have been based.” (Syl. ¶¶ 1 and 2.)
For other decisions to the same effect see In re Estate of Johannes, 170 Kan. 407, 409, 227 P. 2d 148; Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 655, 203 P. 2d 180; Bolin v. Johnson County Nat’l Bank, 160 Kan. 61, 65, 159 P. 2d 477.
In announcing its decision the court below handed down a memorandum opinion containing extensive findings of fact and a statement to the effect that if all material matters of fact and law had not been sufficiently determined therein it would make such addi tional findings and conclusions as might be warranted upon request. We are not advised whether further findings were requested but assume so inasmuch as the journal entry of judgment, which it is to be noted includes the memorandum findings by reference, discloses findings in addition to those already made. From these findings, which our examination of the record discloses are supported by substantial competent evidence and other testimony about which there is no dispute, we are able to glean the facts required for a proper understanding of the issues and our decision of this appeal and shall now summarize them as briefly as the state of a long and confusing record permits.
Ida Georgia Davis and Herbert L. Davis were married in 1915 and immediately took up their residence in Waco, Texas. Two daughters were born to this union, Ellenor three or four years after the marriage and Mary Jean some six years later. From 1915 to 1934 Mr. Davis was engaged in the retail shoe business. He was not a success financially and during the latter part of that interim his wife spent practically all of a $10,000 inheritance she had received from her parents in paying off a mortgage on their home and other obligations for which her husband was liable. During the same period of time Mr. Davis and his sister, Nellie Thomas, inherited two Harper county, Kansas, farms from their parents in equal shares, one consisting of 320 acres and the other of 120 acres. In about 1930 the 320 acres was mortgaged by Davis and his sister for $10,500, the former receiving the entire proceeds of the loan which he put into and lost in his failing shoe business.
From 1934 until 1944 Mr. Davis was away from home a good deal of the time working at divers jobs. During 1935 or 1936 he became acquainted with the respondent. Apparently, as a result of this acquaintance, he lost interest in his family and home and in 1944 told Mrs. Davis that he desired a divorce. She objected. Thereupon, in the presence of their two daughters, he advised his wife that if she would accede to his wishes he would give her the home, all insurance, and his interest in the two Kansas farms. The wife did not consent to this offer. However, Mr. Davis persisted in respect to his demands for a divorce and finally, on May 6, 1947, induced her to join with him in the execution of a contract, providing the agreement was to become effective only upon the entry of a decree of divorce by a competent court, whereby they settled and disposed of their property rights.
We are concerned only in this case with real estate located in Kansas. As to it this contract reads:
“It is further agreed between the parties that the said Herbert L. Davis owned in his separate right, by inheritance, certain properties in the state of Kansas, among which is the North one-half of Section Seven, Township Thirty-Five, Range Nine, Harper County, Kansas, of which he owns an undivided one-half interest. As to this, the said Herbert L. Davis agrees that in the event of the sale of this property by himself, that he will pay one-half of the net proceeds he receives from such sale to Ida Georgia Davis, and that in the event of his death before any sale occurs, all of his interest in said property will be beqeathed, share and share alike, to his two daughters.”
Shortly after execution of the first contract the wife who, for good and sufficient reasons, was dissatisfied with its terms insisted such contract be changed for her benefit and refused to proceed with the divorce until that was done. Thereupon, Mr. Davis went to a Mr. Maxwell, the mutual attorney of both parties, and after explaining the situation to him requested a new agreement that would cause his wife to proceed with the divorce action. Thereafter a second agreement supplementing the original contract, was drawn by Mr. Maxwell and executed by both parties on July 2, 1947. This supplemental or second contract, insofar as it pertains to the real estate involved and omitting provisions not having any reference thereto, reads:
“It is herein agreed by and between Herbert L. Davis and Ida Georgia Davis that their agreement entered into on May 6, 1947 be and the same is hereby amended in the following particulars:
“That the provision wherein Herbert L. Davis agrees that in the event of his death, his interest in the Kansas lands will be bequeathed share and share alike to his two daughters shall read as follows:
“That in the event of the death of Herbert L. Davis before any sale of any of the lands occur that his interest in said land will pass to Ida Georgia Davis for her use and that she shall have the net income therefrom so long as the said Ida Georgia Davis shall live or until she shall remarry, whichever event first occurs; that upon her death or remarriage, the remainder in said lands shall pass in fee simple to the bodily heirs of Herbert L. Davis according to the laws of descent and distribution of the State of Texas.
“Except as herein specifically amended, the said original contract shall remain in full force and effect.”
Following execution of the supplemental agreement and on July 11, 1947, Ida Georgia Davis was granted a decree of divorce from Herbert L. Davis in the district court of McLennan county, Texas, after procuring approval of the two contracts above mentioned, the decree of that court stating that the property of the parties had been disposed of by agreement.
Herbert L. Davis married the respondent, Betty Davis, sixteen days after the rendition of the Texas divorce and they lived together thereafter as husband and wife, residents of Texas until he died on January 7, 1949. No children were born to this union. About three months after the date of this last marriage he executed a will whereby he devised Ida Georgia Davis a life estate in the 320 acres of land in Kansas and his two daughters the fee title to that real estate. By the terms of such instrument all other property of which he died seized, including, of course, the 120 acre Kansas tract, was devised to Betty Davis. This is the will which was brought to Kansas and admitted to probate in Harper county.
Before it could reach a decision as to the over-all force and effect to be given the two contracts the district court was confronted with the question whether they were to be construed as covering one or both of the involved tracts of Kansas real estate. It concluded, and we think properly so, that there was some ambiguity in the terms of those instruments which should be determined by resort to the intention of the parties. Based on substantial competent evidence introduced on that point it found the executing parties intended the second contract should apply to all the Kansas real estate and construed the contracts accordingly. Under the circumstances, there can be so little doubt about the correctness of the trial court’s decision on this phase of the case, we are not even inclined to labor arguments advanced by the respondent to the contrary.
Having disposed of the foregoing question the district court found that upon their approval by the Texas court as a part of the divorce decree the two contracts became binding upon the signatories thereto and that the portion of the second and final contract, heretofore quoted, was to be construed as vesting the equitable title to the Kansas lands in the claimants subject only to rights of sale as therein provided. It then held that, since the decedent, Herbert L. Davis, had died without having exercised that power of sale, the claimants were entitled to specific performance of the contracts.
Contentions advanced by the respondent as grounds for reversal of the judgment can be segregated into two groups and should be so considered. The first group relates to the validity of the contracts as between the parties thereto while the second, assuming the validity of those instruments, raises the question specific per formance of their terms is not warranted because of rights acquired by her as the wife of Herbert L. Davis subsequent to their execution.
With respect to the first group it is contended: (1) The contracts were too indefinite for enforcement. Argument on this point is devoted to the proposition that it would have been impossible to ascertain what the net profits from the sale of the real estate would have been if it had been sold under terms of the first contract. We doubt there would be merit to this contention if the land had been sold but we do not need to pass upon that question. Rs short and simple answer is that none of the land was ever sold, hence the clear and definite provisions of the second contract became applicable; (2) that consent of the daughters to the second agreement was necessary in order to give it validity. Assuming, without deciding, this claim might be entitled to serious consideration in a contest between Ida Georgia Davis and her two daughters it lacks merit under the facts and circumstances here involved. The daughters have recognized the second contract as binding and are asking for its enforcement and the respondent, who had no interest in the contracts at the time of their execution, is in no position to challenge the validity of the contracts made for their benefit; (3) that the contracts violate the rule against perpetuities. We do not agree. Broadly stated the rule against perpetuities is that no future interest in property can lawfully be created which does not necessarily vest within twenty-one years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre sa mere (Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645). Resort to the provisions of the second agreement1 leretofore quoted makes it crystal clear that every provision of that contract was to become effective within “lives presently in being.”
We find nothing in the record or in the foregoing contentions to justify a conclusion the contracts were invalid. Therefore, the remedy of specific performance, which we pause to note is not limited to any particular class of contracts, is available to claimants and the tidal court properly proceeded to determine whether it should be applied.
There can be no doubt about what is required to warrant and sustain a decree in specific performance. The rule is well stated in 49 Am. Jur., Specific Performance, 96, § 79, where the following statement appears:
“. . . In general, it may be said that whenever one party to a valid legal contract who has performed or tendered the performance of all conditions precedent on his part can show that the contract is a fair and equitable one free from any taint of fraud, overreaching, etc., on his part, and that his remedy at law for its breach is not adequate, and it appears that the terms of the contract meet the requisite requirements of certainty and that its obligations are mutually binding, equity will, regardless of the subject matter of the contract, decree its specific performance, provided the plaintiff has acted with reasonable promptness in seeking such relief and the enforcement of the contract will not be inequitable upon the defendant or difficult or impossible for the court to carry out. . . .” (Emphasis supplied.)
We are convinced there can be little question that unless it be for matters emphasized in the preceding quotation everything necessary to sustain the trial court’s judgment is clearly established by the record. This conclusion requires consideration of the second group of contentions advanced by the respondent as grounds for reversal of its judgment. In giving them consideration it will be conceded at the outset that under our decisions (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Troutfetter v. Bachman, 165 Kan. 185, 193 P. 2d 201) specific performance is not a matter of right but of equity, and the granting of such relief rests in the sound judicial discretion of the court which will not specifically enforce a contract where under the facts it would be unreasonable and inequitable or for some other reason improper to do so.
Under this second group the respondent claims: (1) That under our statute (G. S. 1949, 59-503), since she had never elected to take under the will of the decedent, she became the owner of an undivided one-half interest in all Kansas real estate left by him on the date of his death and (2) that she had no knowledge of the contracts when she married the decedent and hence, in any event, they should not be enforced against her in equity. The answer to these contentions is to be found in the case of Dillon v. Gray, 87 Kan. 129, 123 Pac. 878, which has been followed repeatedly and is cited and approved by this court as late as Eastwood v. Eastwood, 167 Kan. 471, 478, 207 P. 2d 393, where it is held:
“Marriage will not constitute the wife a purchaser of an interest in lands owned and held by the husbánd. Upon his death the wife acquires no interest by will or under the statute in any property to which he held the legal title but which in equity belonged to others. Under the facts stated in the preceding paragraph, therefore, the plaintiffs were not required to show that the second wife, before her marriage, had notice of their claim under the contract.” (Syl. f 2.)
Finally respondent insists that under the facts disclosed by the record it was unjust and inequitable to decree specific performance of the contracts. In order to sustain this contention we would have to find the court abused its sound judicial discretion. The facts of this case do not warrant any such conclusion. Indeed we are constrained to add, particularly since it is conceded that after his second marriage Herbert L. Davis made no payments upon the mortgage which is still a hen upon the land in question, the record discloses no conditions and circumstances which should cause a court of equity to hesitate to compel performance of the contracts.
That the accounting phase of the judgment is involved in this appeal is purely incidental. The respondent makes no contention it was erroneous if, as we have held, the trial court did not err in decreeing specific performance. Therefore, this portion of the judgment must be and is upheld.
The claimants, as has been heretofore indicated, have appealed from the order of the trial court disallowing a claim made by Ida Georgia Davis under the provisions of G. S. 1949, 59-1504, for an allowance of attorneys fees incurred by the latter in the institution and prosecution of the case on which this appeal is founded.
The section of the statute on which claimants rely reads:
“. . . Whenever any person named in a will or codicil defends it, or prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, or if any person successfully opposes the probate of any will or codicil, he shall be allowed out of the estate his necessary expenses and disbursements in such proceedings, together with such compensation for his services and those of his attorneys as shall be just and proper.” (G. S. 1949, 59-1504.)
We find nothing in the section of the statute from which we have just quoted which can be construed as contemplating that a claimant is entitled to recover attorneys fees or other expenses incurred in the prosecution of a suit in probate court for specific performance of contracts such as are here involved. It follows the trial court’s action in disallowing the claim based on that premise was proper and we so hold.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J. :
On January 7, 1902, the petitioner was adjudged to be guilty of a violation of the prohibitory liquor law, and sentenced to a term of imprisonment, to pay a fine and costs of prosecution, and to stand committed to the jail of Rice county until the fine and costs were paid. After the expiration of his term, and while confined for non-payment of the fine and costs, two members of the board of county commissioners, in conversation with the petitioner and his father, B. F. Troy, at the jail, and in the presence of the sheriff, stated that the petitioner could be released if the costs were then paid, and the fine paid later on. The petitioner stated that if he were released he could pay the fine by the succeeding fall. Thereupon B. F. Troy said that if his son were released on those conditions he would pay the costs. This he did forthwith, and the commissioners told the sheriff to release the prisoner. No order or direction was given the sheriff con cerning the commitment, which remained in the latter’s hands until the expiration of his term of office, when he delivered it to his successor, the respondent, who is the present sheriff of Rice county. No action was taken upon the matter by the board of commissioners as a board at any time, and no record of the transaction which occurred April 10, 1902, was anywhere made. On February 24, 1903, the fine remaining unpaid, the respondent reincarcerated the petitioner under the original commitment, and still detains him in custody. Is the petitioner unlawfully restrained of his liberty ?
The sheriff had no authority to release the petitioner except upon an order of the board of county commissioners lawfully made. The board could not act except at a meeting regularly held. The conduct of two members as individuals was wholly nugatory. (Aikman v. School District, 27 Kan. 129 ; Comm’rs of Hamilton Co. v. Webb, 47 id. 104, 27 Pac. 825 ; P. & F. P. Rly. Co. v. Comm’rs of Anderson Co., 16 id. 302 ; Comm’rs of Anderson Co. v. P. & F. R. Rly. Co., 20 id. 534.) The petitioner> therefore, was not discharged according to law, and his situation while at large was no better than that of a criminal who had escaped through the connivance of the officers. He could be retaken at any time under the original process.
In the case of Butt v. Jones, which was one of trespass for assault and false imprisonment on account of a retaking after an escape, determined at nisi prius, in the court of common pleas, at the Hilary term, 59 George III, Dallas, C. J., said:
“This is an action for an alleged false imprisonment, to which the defendant has pleaded a justification. It is not a case as between one individual and another. Where a debtor is committed in execution for a debt, the sheriff is bound to detain him until the debt be paid, or he be discharged by due course of law: but if before the occurrence of either of those events the sheriff voluntarily suffer the debtor to escape,, he in an action for the escape is answerable to the plaintiff in the execution for the amount of the debt, and cannot afterwards retake the actual debtor. But this rule does not apply even to a civil execution where the escape is negligent, and without the permission or privity of the sheriff. The present, however, is not a case of a civil execution, as between individuals. The public are here interested. Th.e plaintiff, being convicted of a crime by a court of competent jurisdiction, is committed to the custody of the defendant, in execution of the judgment which that court passed upon him. Supposing, therefore, that the defendant had personally been at the outer door of the prison, and had voluntarily and knowingly suffered the plaintiff to escape ; yet think that in point of law it would have been his bounden duty to have retaken him whenever afterwards an opportunity offered, and to have detained him until the fine was paid.” (Gow’s Rep. 99.)
The case of Commonwealth, ex rel. Schwamble, v. The Sheriff, I Grant’s Cases (Pa.) 187, was a habeas corpus proceeding. The relator had been convicted of keeping a tippling-house and sentenced to pay a fine and the costs of prosecution, and to remain in custody until he complied. After he had been a prisoner for some time he paid the costs, and the commissioners of the county thought proper to order his discharge without payment of the fine, and he was accordingly suffered to go at large by the under-sheriff. When the fact came to the knowledge of the high sheriff, he caused the petitioner to be retaken, under the belief that the discharge was illegal. The court held that the commissioners could make no order for the discharge of one in jail in execution of a criminal sentence without being guilty of an unauthorized interference with the administration of the criminal law, and said:
“If the county commissioners had no right to discharge him, the right of the sheriff to retake him was very clear. In civil cases, if a party escapes who is in custody on mesne process, he may be retaken any time before the return-day. If he is held on final process, the sheriff becomes absolutely liable for the debt and costs by suffering the prisoner to go at large, and he cannot imprison him again. But a party who is in custody, accused or convicted of a criminal offense, whether he be in jail awaiting his trial or in execution of a sentence after trial, if he escapes, may be recaptured at any time afterwards, and this whether the escape was voluntary or involuntary on the part of the sheriff. It is well settled that one who has been detained for non-payment of a fine may be retaken by the very officer who consented to his escape.”
It was therefore concluded that, although the petitioner went under the order of the board, and with the consent of the sheriff, he was legally retaken, and should remain in custody until released by due course of law. In Clarkv. Cleveland, 6 Hill (N. Y.) 344, 349, it was decided:
‘‘The people ought not to be deprived of any right by an escape 'of whatever kind from custody under criminal process. Though the officer consent to the escape, he is bound to retake the prisoner.”
The public had a right to demand the execution of the law which the commissioners and the sheriff had no authority to compromise, and which the petitioner could not evade by such a pretext. (Gano v. Hall, 42 N. Y. 67.) So in Simpson v. State, 56 Ark. 8, 15, 19 S. W. 99, 101, it was said :
‘‘Avoluntary release of a convict fromimprisonment by a warden or other person having legal custody of him is illegal, and the convict is an escaped felon so long as he is at liberty. The warden's guilty consent to his escape cannot abrogate the judgment of conviction and legalize his liberty for an hour or any other-length of time.”
These cases are all sound in principle. Powers of the board of'county commissioners, and of the sheriff, are strictly defined by the law. Anything done by them in excess of authority is void. No voluntary enlargement of such powers to be indulged at pleasure can be allowed to. prevail against the public interest, or in any manner to bind the state, and the petitioner has no right to profit by acts performed under such unwarranted assumption. The tolerance of any other doctrine would necessarily be prolifically productive of the most disastrous consequences. None of the cases cited by counsel for the petitioner pretends to discuss the principle here involved, or has any bearing whatever upon it. They relate solely to the extent of the power of the court in pronouncing judgment and to the status of the defendant after that power has been exhausted.
The petitioner is therefore remanded to the custody of the sheriff of Rice county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
This action was brought by Milton Sutton and wife to restrain the sale of an eighty-acre tract of land levied on under an execution issued on a judgment in fayor of plaintiffs in error and against Milton Sutton, F. W. Smith, M. G. Farley, I. A. Collins, J. H. Hannam, G. W. Hannam, and J. P. Brown-lee. Among other grounds alleged, upon which the injunction was procured, were that the property seized belonged to the wife, Mary Sutton, and that it was the homestead of plaintiffs. A jury was called to advise the court on questions of fact. At the conclusion of the evidence the homestead character of the property alone was submitted to the jury, and in response to special questions it found the property to be the homestead of plaintiffs. This finding was approved by the court and the temporary injunction theretofore procured was made perpetual. Defendants below bring error.
It is first contended that the other judgment debtors of Milton Sutton were necessary parties to this action. This claim is without merit. The object of the action was to restrain the sale of a particular tract of land owned by plaintiffs upon the ground that it was not subject to seizure and sale in satisfaction of the judgment. In such case he owners of the property alone are necessary parties plaintiff and they may institute and maintain such action. In Merriman v. Walton, 105 Cal. 403, 38 Pac. 1108, 30 L. R. A. 786, 45 Am. St. Rep. 50, it was held:
“A codefendant against whom the judgment was rendered in the justice’s court need not be a party to an action to restrain the judgment so far only as affects the plaintiff and his property, the judgment against the codefendant being left in full effect, to be enforced at any time.”
In the opinion it was said :
“The objection that the codefendant of the plaintiff is not a party to this action is without merit. The judgment in the justice’s court is restrained only so far as it affects the plaintiff herein and his property, leaving the judgment against his codefendant in full effect, to be enforced at any time.”
While we do not find the exact question here presented determined by this court, yet the practice followed in this case was permitted by this court in Allen v. Dodson, Sheriff, 39 Kan. 220, 17 Pac. 667, and Ard v. Pratt, 61 id. 775, 60 Pac. 1048. See, also, Ingraham v. Dyer, 125 Mo. 491, 28 S. W. 840.
One of the grounds alleged for restraining the enforcement of the judgment against the property in question was that it was purchased, in part, from money furnished by the wife out of her separate estate. In support of this claim plaintiffs were permitted to show that a portion of the purchase-money had been pa.id out of the private estate of the wife under an oral agreement with her husband as to the ownership of the property. It is contended that' this was error. An examination of the record shows that the evidence thus produced on behalf of plaintiffs was insufficient to authorize an order or judgment restraining the sale of the property, and such evidence should, on motion, have been withdrawn from the consideration of the' jury. But as the court was not requested to withdraw this evidence from the consideration of the jury,, and as the only question submitted to the jury was the homestead character of the property in dispute, the reception of this testimony was immaterial and formed no basis for the judgment rendered.
The question of merit in the case relates to the homestead character of the property. It is contended there is not sufficient evidence in the record to support the judgment of exemption rendered. The execution levied on the property was issued September 30,1899. At this time plaintiffs did not live on the property. Prior to March, 1897, they had resided on the property as their homestead. At this time, on account of the sickness of the husband, plaintiffs had removed with their family to the,town of Havensville, and there built a house at a cost of about $1000, on a lot owned by Mrs. Sutton. Most of the furniture was removed from the house on the farm to this house in town, and the farm was rented to others. Milton Sutton also exercised the right of suffrage in the town of Havensville, and he with his family continued there to reside until the month of April, 1901, a very short time prior to the trial of this case in the district court, when he with his family moved back to the farm.
Upon the trial, plaintiffs, with other members of their family, testified that the residence in town was temporary only, during the inability of the husband and father to work on the farm ; that it was the intention of all the family to return to the farm as their home as soon as the state of his health would permit. Milton Sutton also testified that he voted in Havens-ville for the reason that he believed he could only vote in the precinct wherein he slept and had his washing done. The jury believed the testimony of plaintiffs as to their intention to return to the farm and make it their home, and found the property in dispute to be the homestead of plaintiffs, and that they had not abandoned it as a homestead. This finding the trial court approved and entered judgment thereon. While we find it difficult to reconcile the conduct of plaintiffs with their claimed intention of returning to the farm as their home, yet as this question of fact was submitted to.'the jury for its. advice, and by the jury found in favor of plaintiffs upon conflicting oral testimony, and as the trial court has approved the findings of the jury, although they were not binding upon it, we cannot now disturb the conclusion reached.
It is finally urged that the trial court erred in not instructing the jury as requested by counsel for the defendants, and also erred in the instructions given the jury. Technical objections are interposed to a consideration of these alleged errors. An examination of the record shows such objections well taken. Aside from this, however, we may say we have examined the instructions given and find there is no error. More especially is this true in a case of equitable cognizance, like the one at bar, where the findings made by the jury are for the advice of the court only, and there is nothing in the instructions from which it may be gathered that the trial court proceeded upon an erroneous theory of the case or a mistaken view of the law.
It follows that the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from a ruling and judgment sustaining a demurrer to its amended petition.
Neither the abstract nor counter-abstract disclose any filing dates hut do disclose that plaintiff commenced an action to recover moneys paid by it to its policyholders for losses allegedly resulting from negligence of the defendants, and as result of a motion to make definite and certain, filed an amended petition. At sometime defendants filed a motion to require the plaintiff to elect whether it claimed under the doctrine of res ipsa loquitur or under a theory of .specific negligence, and upon the hearing of that motion plaintiff announced it would proceed on the theory of specific negligence. Later defendants demurred to the amended petition on the sole ground that the petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants, and that demurrer having been sustained, the plaintiff perfected its appeal to this court.
In its brief, appellant states the trial court stated it was sustaining the demurrer on the sole ground that the so-called emergency doctrine applied in the case and as applied the amended petition failed to state a cause of action.
The amended petition purported to allege two causes of action. In the first cause of action plaintiff alleged its status and that on April 17, 1949, it issued to one Robert Keith its policy of insurance against loss by fire on the contents of a described building located in Morland, Kansas; that the defendant corporation, on September 2, 1949, was carrying on its business of selling motor fuels and petroleum products and the defendant Richmeier was its servant and employee; that on September 2, 1949, Richmeier, while acting as such servant and employee, was making a delivery of certain motor fuels to a motor company at its place of business on the north side of the. principal business street in Morland and approximately a block to the west of the building occupied by Keith; that the defendant corporation s tank wagon then operated by defendant Richmeier was stopped at the motor company and was unloading motor fuel from the tank wagon by a hose attachment running from the tank to the protruding spout of an underground tank; that after inserting the hose into the spout, Richmeier walked to the front end of the tank wagon and in some manner unknown to the plaintiff the motor fuel then and there being unloaded became ignited and afire and the motor vehicle and tank wagon caught fire. It was further alleged:
“That the defendant, Richmeier, thereupon entered into the cab of said truck and tank wagon and started to drive the same in an easterly direction along Main Street of the said City of Morland. That while said truck and tank wagon was being so driven while the motor fuels or petroleum products therein contained, together with the tank wagon, were blazing and on fire. That said defendant, Richmeier, drove said motor vehicle for approximately one-half to three-fourths of a city block to the east of said Dinkel Motor Company, and then negligently and carelessly abandoned said burning motor truck and tank wagon, while the same was still running, upon said public highway.”
And that as a direct and proximate result of the negligence of Richmeier in abandoning the motor truck and tank wagon while it was on fire and in permitting the truck and wagon to continue running down the public street while unattended, the truck and tank crashed into another 'motor vehicle which was parked north of the building occupied by Keith, the tank wagon exploded and ignited the building occupied by Keith, causing the building and contents to be destroyed by fire. Further allegations as to the policy and its provisions for subrogation and of payment of loss need not be detailed. The second cause of action incorporated by reference all of the pertinent allegations of the first cause of action, and alleged issuance to one D. C. Kay of a policy of insurance against loss by fire of the building occupied by Keith and mentioned in the first cause of action, payment to Kay and other matters not presently of importance.
Appellant, in its brief, states that how the doctrine of emergency, based on the allegations of the petition, ever got into the case, was and is a mystery to it. Let us see.
Reviewed briefly, plaintiff alleged that defendants were unloading motor fuel to a motor company on the principal business street in Morland and that while the fuel was being unloaded Richmeier walked to the front end of the tank wagon and in some manner unknown to plaintiff the motor fuel became ignited and the truck and wagon caught fire, and that Richmeier entered the cab of the truck and started to drive east along the street, the truck and tank then being afire. Up to this place in the allegations, a portion of which is quoted above, there is no charge of any negligence against the defendants. The only attempt to charge negligence is that after driving the truck and tank for a part of a block to the east, Richmeier abandoned the truck and tank while the same was still running upon the street. The question is whether those allegations disclose an emergency of such character that Richmeier may not be charged with negligence. If he was negligent, of course under the allegations his employer was, and if he was not negligent, his employer would not be liable. Under the circumstances we discuss the question as though Richmeier were the sole defendant.
Appellant’s contention the trial court erred is very shortly presented in its brief. After making a partial quotation from Blashfield Cyclopedia of Automobile Law and Practice, the full text of which is later set forth, and a partial quotation of the second paragraph in the syllabus in Seele v. Purcell, 45 N. M. 176, 113 P. 2d 320, later noticed, treating with emergency, it argues that there 'cannot be read into the amended petition any allegation that Richmeier was forced to abandon the burning truck and to permit it to run along the street, nor that there was any allegation it was necessary that he abandon it for his own safety, the only allegation being that he negligently and carelessly abandoned the burning truck. After directing attention to a statement in the dissenting opinion in Towell v. Staley, 161 Kan. 127, 166 P. 2d 699, that this court is committed to the doctrine that a sudden emergency, created solely by the defendant, will not preclude recovery as a matter of law (1. c. 144) it argues that if any emergency existed, it was created when Richmeier drove the truck to the point where he abandoned it, and that any supposed emergency which may have existed prior to the moving of the truck, has no bearing upon the acts relied upon by it. The final thread of the argument is that whether there was an emergency was only a circumstance in determining whether Richmeier was negligent, and the question of negligence was for the jury.
As used here, the word “emergency” has no technical or peculiar meaning but only such meaning as it may have in approved use of language. In Webster’s New International Dictionary, Second Ed., the noun “emergency” is defined as, “An unforeseen combination of circumstances which calls for immediate action.” (See Koger v. Keller, 120 Kan. 196, 243 Pac. 294, where this definition is quoted approvingly.) On occasions the noun “emergency” is preceded by the adjective “sudden” which is defined as unforeseen or unexpected. (See Hagaman v. Manley, 141 Kan. 647, 652, 42 P. 2d 946.) The use of the adjective adds little to inherent meaning of the noun.
Discussion of emergency in the law pertaining to negligence may be found in many of tire authorities and decisions.
In Blashfield Cyclopedia of Automobile Law and Practice, Perm.. Ed., Vol. 1, Part 2, p. 538, § 668, it is said:
“When one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection, and, in the event that an automobilist suddenly meets with an emergency which naturally would overpower the judgment of a reasonably prudent and careful driver, so that momentarily he is thereby rendered incapable of deliberate and intelligent action, and as a result injures a third person, he is not negligent, provided he has used due care to avoid meeting such an emergency and, after it arises, he exercises such care as a reasonably prudent and capable driver would use under the unusual circumstances, which is usually for the jury.”
In 38 Am. Jur., p. 686, acts in emergency or sudden peril are treated in this manner:
“The prudence and propriety of an action are not to be 'judged by the event but by the circumstances under which it was done. The rule, as stated generally, is that one who, in a sudden emergency, acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence, provided he exercised in the emergency the care of a reasonably prudent individual under like circumstances. The fact that injurious consequences might have been avoided had he selected another course of conduct does not charge him with negligence. An act of self-preservation performed in circumstances of extreme danger is not to be judged by tire rules which are applicable ordinarily to acts done in cold blood, with time and opportunity for the party to consider the consequences and the methods of the act he is about to do. Failure to exercise the best judgment in an emergency created by another person is not necessarily negligent even though the error of judgment has results which are lamentable from the standpoint of injurious consequences to third persons.”
And in 65 C. J. S., p. 408, it is said:
“One confronted with a sudden emergency is not held to the same accuracy •of judgment as would be required of him if he had time for deliberation; and if he exercises such care as an ordinarily prudent man would exercise when confronted by a like emergency he is not liable for an injury which has resulted from his conduct. The arising of an emergency does not, however, relieve one from the obligation of exercising ordinary care.”
And without citation of authority it may be said there is accord in holding that the rule of emergency or sudden emergency cannot he invoked by one who brought the emergency upon himself by his own wrong or who did not use due care to avoid it.
Also see the annotations on “Emergency rule as applied to automobile drivers” in 6 A. L. R. 680, 27 A. L. R. 1197, 79 A. L. R. 1277 and 111 A. L. R. 1019.
Seele v. Purcell, supra, from which appellant quotes a portion of a paragraph of the syllabus, does not support his contention. Although reference is made to the opinion for a more complete statement, it appears plaintiffs were driving their motor vehicle upon a highway, and were about to pass defendant’s vehicle upon a bridge, when defendant lost control of his vehicle occasioned by the breaking of a shackle bolt, his vehicle struck the bridge abutment and careened into plaintiffs’ vehicle, causing the damage for which action was brought. The trial court found that the breaking of the shackle bolt was caused by a latent defect, which could only have been determined by taking off the shackle and bolt and examination by a mechanic, and would not be seen by ordinary inspection and was unknown to the defendant, and that the accident was not caused by any negligence of the defendant. On appeal the supreme court said it was apparent that the trial court, in weighing the testimony, had in mind what is called the emergency rule in negligence cases. Without reviewing the opinion further or the decisions and authorities mentioned, we note only that the judgment of the trial court was affirmed.
We are not without authorities of our own on the subject.
In Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663, the defendant was transporting two loads of nitroglycerin by motor vehicles. One became on fire and after it passed plaintiffs home about 800 feet distant was a steep hill. The vehicle on fire could not make the hill, its driver abandoned it and it ran back down the hill and upset. About a half an hour later the nitroglycerin exploded and plaintiff received injuries for which she sought damages. From a judgment for plaintiff, the defendant appealed, contending that for a person to abandon an automobile load of nitroglycerin when the automobile was on fire and stalled on a steep hill was not actionable negligence. The court reviewed some of the authorities, said that courts take judicial notice of the highly explosive qualities of nitroglycerin and that it explodes more readily when heated, stated there was no fault of the driver that the automobile was on fire or stalled, no showing he could have put out the fire or prevented the automobile from going back down the hill, or done any good in any way by staying, and held:
“One driving an automobile loaded with nitroglycerin, who discovers that tifie automobile is on fire, the fire not having been caused by any lack of care on his part, and being stalled on a steep hill, is not guilty of actionable negligence in abandoning the automobile.” (Syl. f I.)
Reference is made to Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923, for a statement of the facts, but where it was held:
“In determining whether deceased was guilty of contributory negligence, rule followed that one who in a sudden emergency acts according to his best judgment or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.” (Syl. IS.)
In White v. Toombs, 164 Kan. 635, 192 P. 2d 174, where the defendant relied on the rule to avoid liability for plaintiff’s injuries, it was said:
“Subject to certain exception, not present in this case, one who acts in an emergency is not chargeable with negligence.” (Citing cases) (1. c. 639.)
In view of the above authorities we do not agree with appellant’s contention that if any emergency existed it was created when Richmeier drove the truck from the point where it became afire to the point where he abandoned it. Under the allegations of the petition the emergency occurred when the tank wagon and truck became afire. Perhaps a calm deliberation would have led to a conclusion that if left standing in front of the garage the truck and the tank and its contents would have burned where they stood, without any explosion of the tank, and without any damage to the surrounding property, or perhaps that same calm deliberation would have led Richmeier to realize that fire in the tank wagon would produce an explosion dangerous to any person or property nearby and that prudence demanded that it be removed speedily to some locality where possible damage would be limited perhaps to the truck and tank itself. The fact that injurious consequences might not have followed had he left the truck and tank stand where the fire started does not convict Richmeier of negligence. Whichever course he concluded and acted upon would not convict him of actionable negligence. The petition charges however that he was negligent in abandoning the truck and tank without pausing to stop them. The fact that Richmeier left the burning truck and tank may not be so isolated from the entire course of events alleged and he may not be said to have been negligent in not remaining in a position of danger and peril until he stopped the truck and tank. The emergency started with the inception of the fire and did not end until the explosion. There is no allegation capable of interpretation that Richmeier by any act of his created the emergency. In our opinion, the allegations of the amended petition did not charge Richmeier with actionable negligence, and the trial court did not err in sustaining the defendants’ demurrer.
We shall not discuss appellees’ contention that plaintiff was not the real party in interest and could not maintain the action.
The ruling and judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover for labor and material furnished in repairing a residence. Defendant’s motion for judgment on the pleadings was sustained. Plaintiff has appealed.
The facts are as follows: The action originated in the city court of Pittsburg. Plaintiff in his bill of particulars alleged that he had furnished material and performed labor on a residence belonging to defendant in the amount of $254.15 and the amount was due and unpaid. A statement of the items was attached. Judgment was for the defendant in the city court. The plaintiff appealed. In the district court the defendant filed an answer which alleged that the defendant had filed a previous action in the city court of Pittsburg for the possession of the real estate in question, upon which the house in question was located; that it was owned by him and occupied by plaintiff as a tenant; that the action was for rent due; that plaintiff in this action had, as defendant in that action set up, the same work and labor described in the bill of particulars as in the present action. The answer further alleged that judgment in that action had been entered for the defendant in this action, who was the plaintiff in that one; and that all the matters set forth in the present action had been litigated in the previous one. The allegations of this answer were not denied. Defendant moved for judgment on the pleadings. This motion was sustained and plaintiff has appealed.
The allegations in the answer as to what took place in the former case in city court and what the records show were not denied in the pleadings by plaintiff in this action. They are not disputed here. In the complaint in that action defendant herein alleged that plaintiff herein occupied the premises described; that he lawfully entered upon them and was forcibly detaining them from the plaintiff, defendant herein; that he was indebted to the defendant in this action for $50. Judgment was prayed in that amount. Judgment was entered for plaintiff in that action, defendant in this one, for $50. The motion of defendant in this action for judgment on the pleading was sustained — hence this appeal.
The plaintiff, a carpenter by trade, occupied a residence owned by the defendant and while in possession furnished some material and labor to repair. The defendant, the owner of the residence, gave the plaintiff credit on his rent for material and labor furnished. Thereafter the plaintiff made several monthly payments in cash and then became in arrears in payment of his rent.
The defendant herein filed a complaint in the city court for peaceable entry and forcible detainer for possession of the real estate alleging nonpayment of rent in the sum of $50. The plaintiff herein, as a defense in the peaceable entry and forcible detainer action, offered in evidence his account of labor and material furnished, to show there was no rent due and by reason of the work done and material furnished he had made payments sufficient to pay all rents due and for some months in the future. After a hearing the court found for this defendant giving him possession and judgment for $50 for past due rent. Schulze did not appeal, but filed the present action in the city court of Pittsburg.
Defendant argues here and the trial court held that the judgment in the peaceable entry and forcible detainer action was res judicata of the action to collect for the material and labor for which this action was brought. Plaintiff herein argues it was brought under G. S. 1949, 61-1301 to 61-1314, inclusive. He calls our attention to the fact that G. S. 1949, 61-1303, provides as follows:
“Judgments either before a justice or in the district court, in actions brought under this article, shall not be a bar to any after action brought by either party.”
We considered the above section in McHenry v. Hubbard, 156 Kan. 415, 134 P. 2d 1107. Its history is interesting. However, we demonstrated in that opinion that it never was entitled to the effect argued by plaintiff here. There we held:
“The provision of the code of civil procedure before justices of the peace in proceedings in forcible entry and detainer that—
“ ‘Judgments either before a justice or in the district court, in actions brought under this article, shall not be a bar to any after action brought by either party.’ (G. S. 1935, 61-1303.)
examined and considered, and held, that the bar mentioned refers to another and distinct action by either party involving a changed state of facts, and does not prevent a defendant in a second action from setting up as a defense that the questions of right of possession and of the amount of rents due involved in the second action are based upon the identical facts involved in the first action, and that the judgment thereon is res judicata.”
G. S.-1949, 61-1305, provides in part as follows:
", . . If an action is brought for the purpose of recovering possession of said premises from a tenant for nonpayment of rent the complaint shall allege this fact, and the plaintiff in the action shall set forth a verified statement of the amount he claims to be due from the defendant as rent of said premises, and the summons served upon the defendant in this action shall state the amount for which judgment shall be taken against the said defendant as in civil actions for the recovery of money.”
The section was enacted in 1915. (See Laws of 1915, Ch. 264.) As pointed out in McHenry v. Hubbard, supra, the question there was the same as here. The matter tried out in the first action between the landlord as plaintiff and the carpenter tenant as defendant was whether the carpenter was in arrears on his rent. The carpenter claimed that on account of the contract he was not in arrears. The landlord claimed he was. There was a trial and the carpenter introduced in evidence the contract and the same account for material and labor upon which he relies in this action. The issue was tried out. The judge of the court of Pittsburg found for the plaintiff and by that finding, absent an appeal, the issue was adjudicated. In the earlier action the bill for labor and material was a counter claim. The provision of G. S. 1949, 61-1305, already quoted, provided for joining of a claim for rent with a claim for possession of premises. G. S. 1949, 61-1309, provides that upon the completion of the trial the justice shall enter judgment for the amount of rent which he shall find to be due the plaintiff. If the plaintiff be correct in his argument here, then the city court of Pittsburg would not have had jurisdiction to consider any defense a tenant might have, such as this bill for labor and material. To state such a proposition would seem its best refutation. The bill for material and labor which the carpenter interposed to the landlord’s claim for rent was a counter claim, such as is provided for in G. S. 1949, 60-710. That section provides what an answer shall contain. The above is part of the code of civil procedure, but G. S. 1949, 61-1501, provides that the provision of the code shall be applicable to proceedings before justices where no special provision is made.
The plaintiff insists here that the court of Pittsburg in the peaceable entry and forcible detainer action only had jurisdiction to determine the right of possession and had no jurisdiction to hear a counter claim. That position is contrary to the plain provisions of G. S. 1949, 61-1305, as we have demonstrated. It follows that the identical matter sought to be litigated in this action was adjudicated in the earlier action between the same parties. It is res judicata and the court ruled correctly in sustaining the defendant’s motion for judgment on the pleadings.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On December 20, 1897, the Remington Paper Company recovered a judgment in the district court of Shawnee county against the Topeka Capital Company, a Kansas corporation, upon nine promissory notes. The defendant appealed but gave no stay bond. An execution was issued and returned nulla bona. In August, 1898, the plaintiff began an action against R. L. Thomas, as a stockholder in the defendant corporation, under the provisions of paragraph' 1192, General Statutes of 1889 (now repealed), providing that, when execution is issued upon a judgment against a corporation and no property can be found upon which to levy, an execution may be allowed against a stockholder upon due notice and hearing, or an action may be brought to charge the stockholder with the amount of the judgment. On June 10, 1899, and while such action waspending and undetermined, the judgment was reversed. (Capital Co. v. Remington, 61 Kan. 1, 57 Pac. 504.) On October 27, 1899, the Remington company began the present proceeding against Thomas, under paragraphs 1200 and 1204, General Statutes of 1889 (also now repealed), upon the same nine notes, alleging that the Capital corporation had suspended business for more than one year, and that Thomas was a stockholder, and as such liable for the payment of plaintiff’s claim. Paragraph 1204 provided that upon the dissolution of a corporation suit might be brought against a stockholder on a corporate debt, and paragraph 1200 provided that for the purpose of enabling creditors to bring such suits the corporation should be deemed to be dissolved whenever it had suspended business for more than one year. On May 3, 1900, judgment was rendered by the district court for the plaintiff in the action of the Remington company against the Capital company. This fact was brought upon the record in this case'by being pleaded in a supplemental answer. Upon a trial a verdict was returned for plaintiff, upon which judgment was rendered, which the defendant now seeks to reverse.
The principal contentions of plaintiff in error, presented under various specifications, are (1) that by instituting the proceeding to enforce the judgment of December 20,1897, under the provisions of said paragraph 1192, plaintiff elected to pursue such method to the exclusion of that by action upon the original claim, based upon the fact that the corporation had ceased business for a year; and (2) that no recovery could'be had in the present proceeding because it was based upon the notes, and these were merged in the judgment of May 3, 1900, and therefore would no longer support an action.
To maintain these positions reliance is chiefly placed upon the case of Remington v. Hudson, 64 Kan. 43, 67 Pac. 636. There the plaintiff, after obtaining judgment against the corporation, causing an execution to be issued and returned nulla bona, and, instituting' a suit to charge a stockholder with the amount of the judgment, sought to amend its pleading so as to convert the proceeding into an action upon the notes against the stockholder, under the statute authorizing such a suit in case of the dissolution of the corporation by the ¿suspension of business for a year. It was held that this change could not be made. In the opinion it was said :
‘ ‘ It is plain to be seen that the pleader stated different grounds of recovery, and the two remedies which he sought were based on entirely different rights. They were dissimilar and inconsistent, and being based on repugnant theories, the election of one of them is necessarily a bar to the subsequent adoption of the other. (Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665.)
“Apart from the consideration that the election of one of two remedies predicated upon conflicting theories operated as a bar, there was the further matter that the notes set up in the stricken counts had lost their vitality and force because they had become merged in the judgment. When they passed into judgment they ceased to exist for any purpose, and cannot be used again as a basis of recovery.” (Page 46.)
The present case, however, presents a very different situation. The proceeding under paragraph 1192 was begun at a time when plaintiff had a judgment against the corporation. In selecting this method the plaintiff assumed, as for such purpose it had a right to do, that the judgment was valid and would be upheld. More than that, its proceeding depended absolutely upon the judgment, as much so as if it had been brought in the form of an application for an order for an execution upon the judgment. Without the judgment it could have no existence. It was practically, for the purposes here involved, a supplemental proceeding for which the judgment and the unsatisfied execution were prerequisite. When the judgment was reversed the whole proceeding fell to the ground. The situation became as though there had never been a judgment. Nor could any subsequent rendition of judgment revive the first judgment or reinstate any part of the proceedings based upon it. If plaintiff desired to pursue the same method further, it was incumbent upon it to begin anew after the rendition of a second judgment and the issuance and return of a second execution. The reversal of the judgment placed the parties just where they were before it was rendered and afforded the plaintiff the same opportunity to make an election of remedies that it had then had. It was again free to pursue either method. The case falls within the reason, if not the letter, of the familiar rule stated in 7 Encyclopedia of Pleading and Practice, 366, that “if the suitor has, in his first action, mistaken his remedy and adopted a mode of redress incompatible with the facts of his case, and is defeated on that ground, he is still free to elect and proceed anew.”
Now, does the fact that the notes were merged in a judgment after the action was commenced defeat a recovery. In the case of Remington v. Hudson, supra, the plaintiff was denied the right virtually to begin a new action based upon notes already placed in judgment and thereby extinguished. In the present case the action was begun while the notes were still in force. While it was based upon them in the sense that allegations of their existence formed an essential part of the petition, the action was not one upon the notes in the ordinary meaning of the expression. It was upon a liability created by statute (although’contractual in its nature ), as is illustrated by the fact that the three-year statute of limitations applies to it. The notes alone could not make a cause of action against defendant. It was necessary to plead as well the facts that he was a stockholder whose statutory obligations to the creditors of the corporation had not been fully performed, and that the corporation was for the purposes of the suit dissolved by a cessation of business for more than one year. It is true that the petition declared upon as many separate causes of action as there were notes, and that after the judgment was rendered on the notes there could not have been more than one cause of action, but this consideration could not in any way have prejudicially affected the substantial rights of defendant. Whether it was necessary for the plaintiff in the first instance to plead in separate counts, and whether it would have been better practice for it to have filed a supplemental petition setting out the subsequent rendition of the judgment, and conforming its pleading to the fact, are likewise immaterial. The fact having been pleaded by defendant, nothing additional could have been accomplished by plaintiff’s also pleading it. Since the real cause of action of plaintiff was upon defendant’s obligation to pay the debt of the corporation, whether in the form of a note or judgment, there was no such change in the form of action as to require a recasting of the petition as an essential to a recovery.
The trial court held that the fact that the notes were shown by the pleadings to have been placed in judgment against the corporation cut off any attack by the stockholder upon the validity of the debt. Defendant complains of this ruling and contends that such effect is only to be given the judgment in a suit brought explicitly upon it, and not in such a case as is here presented. No reason is perceived why the adjudication is not as binding in the one case as in the other. The argument presented in Ball v. Reese, 58 Kan. 614, 50 Pac. 875, 62 Am. St. Rep. 638, seems to apply to each with equal force.
A final contention of plaintiff in error is that the pleadings show that the Remington company, not having filed any statement with the secretary of state, as required by section 1283, General Statutes of 1901, was precluded by the last sentence of that section from maintaining any action in the courts of this state. This sentence reads :
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made.”
The statement referred to is required to be filed by an officer “of each corporation for profit doing business in this state.” The petition showed that the plaintiff was a New York corporation. The allegation of the answer relied on by defendant in this connection was that “the Remington Paper Company has not filed any statement with the secretary of the state of Kansas as required by law.” It nowhere appeared that the plaintiff was a corporation doing business in this state, and consequently the question sought to be presented is not raised by ,the record.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiffs in error prosecute this proceeding to reverse an order of the district court refusing to grant them a new trial, upon a judgment rendered against them by default upon a cross-petition foreclosing two mortgage liens upon their property. The petitioners filed what appears to be a defense to the allegations of the cross-petition.
The defendant in error moves to dismiss this proceeding for the reason that all of the parties defendant in the court below who might be affected by a reversal of the judgment were not served with the case-made or with summons in error. The defendant in error in his brief says the “defendant Ware appeared and filed his answer. The other defendants made default.” The record shows that to have been the condition. The case-made was served on Ware, and' he was served with summons in error. Under the act of 1901, it is not necessary to serve the case-made upon any party to the action who did not appear at the trial and take part in the proceeding from which the appeal is taken. The motion to dismiss is, therefore, overruled.
It is very apparent that the omission of the parties to plead to the cross-petition, or to appear and defend, was not an intentional omission or wilful neglect.
Statutes providing for the opening or vacating of judgments by default are remedial and should be liberally construed. When there is a doubt it is better, as a general rule, to resolve it in favor of the application.
(6 Encyc. Pl. & Pr. 154; Buell v. Emerich, 85 Cal. 116, 24 Pac. 644; Gameron v. Carroll, 8 Pac. [Cal.] 45; Harbaugh v. Land and Water Co., 109 Cal. 70, 41 Pac. 792.)
The court should have sustained the application and granted the petitioners a new trial.
The judgment is reversed, with instructions to sustain the petition and grant the petitioners a new trial | [
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Per Curiam:
The principal claim of error in this case is that there is no sufficient evidence to sustain the verdict. It was an action by the wife against her husband’s father to recover of him’her damages occasioned by the alienation of her husband’s affections, by reason of the malicious acts and words of the father. Necessarily in such a case very little of direct evidence can be adduced. Much must be left to deduction. We find in the evidence sufficient to sustain the conclusions arrived at by the jury.
It is further claimed that the court erred in the admission and rejection of evidence. All of these claims have been carefully investigated, but no prejudicial error is revealed.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
The deed to Foster was ineffectual at the time of its execution as a muniment of title, the property conveyed then being the homestead, and the deed not having received the joint consent of husband and wife. While the marriage relationship continued and the property was occupied as a homestead, no act of the husband could be efficient .to ratify or confirm such deed. The husband might by his actions, words, or silence, when he should have spoken, confirm a deed to the homestead executed by himself alone, or estop himself from denying its validity, so as to make it convey title, after its homestead character had ceased, or after the death of the wife.
.The principle of equitable estoppel may be invoked to defeat the operation of the homestead law. (McAlpine v. Powell, 44 Kan. 411, 24 Pac. 353; Sellers v. Crossan, 52 id. 570, 35 Pac. 205; Sellers v. Gay, 53 id. 354, 36 Pac. 744.) The protection to,a homestead afforded by constitutional and statutory provisions lasts no longer than the occupancy of the premises as a homestead.
In this case it was shown that Adams abandoned the property in question with his family as early as 1895. It may be his deed executed at or after that time would have conveyed the same, subject, of'course, to whatever inchoate interests the wife might have had had she survived him. Why might not a deed which had been executed, by him prior to that time have1 taken effect after the death of his wife, and become as effective as one then executed by him, if he had intended it should do so, or if by his acts he was es-topped to deny that he so intended ? Fie surrendered possession to the one holding under a deed which he had executed. This was because he had executed such deed, and to confirm the same. Having executed the deed which, had he continued to occupy his premises as a homestead, would have conveyed nothing!] he did more — he abandoned the homestead, surrendered the premises, put the grantee into possession, gave effect to a deed which while the premises remained a homestead had no effect, but when they ceased to be' a homestead might and did operate. He thereby made efficient what was theretofore inefficient. (Hall et al. v. Fullerton, 69 Ill. 448; Thomp. Home. & Exemp. § 483.) That he did not then know that his deed to Foster was at the time of its execution ineffectual to convey title made no difference. Doran, the then purchaser, and in fact the first real and bond fide purchaser, had a right to suppose that Adams, knowing the invalidity of the Foster deed, was willing to give it force, so far as he could, by removing the obstacle thereto, to wit, its homestead character. Adams not only put Doran into possession, but he received at least part of the purchase-price in the payment of his $700 note, and then stood by while the purchaser expended large sums of money in making permanent improvements and paying taxes.
Again, Adams said while testifying, on November 15, 1900, in answer to the question: “This suit was not instituted until September last; when did you first commence to make claim to it? (Referring to the property in question.) Ans. I have been talking to Mr. Sargent (his attorney) about bringing suit for two or three years.” That is, he had known, for some length of time before Gilbert purchased the property, on March 4, 1898, the infirmity of his deed to Foster. Notwithstanding this knowledge he remained silent and gave no warning to Gilbert, but permitted him not only to purchase, but to go on expending money in the payment of taxes and in making improvements thereon. During all this time he asserted no claim to the property. '
It seems to us that these facts embrace all the necessary elements of equitable estoppel. Admit that Adams, because of his ignorance of the invalidity of the Foster deed, was not estopped as against Doran, and that the title came to Gilbert as Doran had it, still, with the knowledge which he had as above indicated, he is now estopped, as Gilbert, in view of Adams’s silence, had a right to presume that he was intending and expecting to confirm and make effective his invalid deed. In any event, after the death of the wife, the homestead character of the property ceased. At that time Adams was as fully informed as to the facts and the law as he was when, this action was brought. He certainly might, even by his silence and inactivity, in time confirm and make efficient his former deed. We are not in a position to say the delay of about nine months was not sufficient for that purpose. At least Adams is now estopped from asserting that he did not intend so to confirm and ratify it.
It would be gross injustice to permit Adams by his belated action to recover the property with all of these improvements and its enhanced value after he had received what appears to have been a fair value at the time of the execution of his deed, and after he had stood quietly by with knowledge of his rights, which he himself shows he had, permitting the expenditure by Gilbert of money in tlie purchase-price, improvements, and taxes. This equity will not permit.
Under all of the circumstances of the case, we are fully persuaded that the judgment of the court below was correct. It will be affirmed.
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'The opinion of the court was delivered by
Parker, J.:
This was a common law action to recover damages for personal injuries alleged to have been caused by the negligence ■of the defendant. The plaintiff appeals from the trial court’s action in sustaining the defendant’s motion for judgment on the pleadings.
The pleadings consist of an amended petition, an answer, and a reply. When, as here, such pleadings are tested by a defendant’s .motion for judgment consideration is limited to well pleaded allegations of the petition and reply, which must be accepted as true, supplemented by any allegations of the answer admitted by the reply (Simmons v. Gill, 161 Kan. 123, 166 P. 2d 574; Northington v. Northington, 158 Kan. 641, 149 P. 2d 622, and cases cited at page ■643 of the opinion), and the motion should not be sustained unless, upon the facts as conceded, it clearly appears the party challenging the pleadings is entitled to judgment (Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P. 2d 879; Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d 101).
From what has just been stated it becomes apparent that in determining whether a motion of the character here in question should be sustained a court is not concerned with conclusions of the plaintiff as to the force and effect to be given the facts pleaded in his petition and reply or with disputed questions of fact raised by the defendant’s answer and that allegations pertaining to such matters have no place in a statement outlining the factual picture on which it bases its decision. The instant case is no exception. Consequently we have examined the pleadings and, without attempting to detail their contents or expand specific averments relied on in support of certain arguments advanced by the parties, shall first relate such of the well pleaded and, for purposes of the ruling on the motion, admitted facts as are essential to a proper understanding of the general factual situation. They can be summarized as follows:
On or about March 1, 1947, the defendant, The Kansas Power & Light Company, was, and for a long time prior thereto had been, a corporation organized for profit under the laws of the State of Kansas. It was authorized to do business as a public utility and was engaged in the production, sale, and transmission of electric power, alleged by plaintiff to be its regular trade and business, with its office and principal place of business in the city of Topeka. Under and by virtue of the articles of incorporation issued it by the State of Kansas it was authorized, among numerous other things not here material, to engage in various other lines of business and in addition to do all things necessary for the conduct of a general electric, artificial- or natural gas, light, heat, power, water, ice, street railway and stage or bus line business, also to build, construct, purchase, own and operate power plants, power houses, dams, works, transmission and distribution lines and systems, mains and services, with all necessary equipment for carrying on such operations. In the transaction of its business it was operating under the Workmen’s Compensation Law of Kansas, having filed an election to come under the provisions of such law as a public utility.
In March, 1947, defendant owned and operated a large electric generating station at Tecumseh in which were installed four turbines consisting of two 6,000 KW units, one 15,000 KW unit and one 25,000 KW unit, together with boilers and other necessary equipment. On March 4, 1947, due to the necessity for increased capacity, defendant entered into a contract with the Missouri Valley Constructors, Inc., and Winston Brothers Company for the installation of an additional 30,000 KW unit, to cost approximately $5,000,000.00, immediately adjacent to and to the west of its then existing plant. The work of installing this unit consisted of the necessary building addition, substructure, foundation, circulating water tunneling, extensions, equipment, supports, entrance and access structures and the other structures and appurtenances required or incidental to the housing and support of the 30,000 KW turbo-generator, together with the steam boiler and other auxiliary equipment incidental or appurtenant thereto and also the installation of such turbo-generator, together with the steam boiler and other auxiliary equipment. It should be noted that this contract was set forth in the answer and that all parties concede its terms and conditions are a part of the pleadings and entitled to consideration in determining the propriety of the trial court’s action in sustaining the motion for judgment.
At the time defendant entered into the contract just mentioned, and at all times pertinent to the issues involved, it did not have in its regular employ persons skilled and experienced and regularly engaged in the construction of large buildings and the installation of large and heavy equipment therein. Nor did it have shovel cranes, concrete mixers, concrete bins, concrete towers, hoists, guy derricks, and other equipment necessary and required for the large construction project contemplated by the terms of the contract.
On the 28th day of January, 1948, the two principal contractors, heretofore mentioned, subcontracted to Daugherty Company, Inc., the portion of the work consisting generally of all power piping in connection with the installation of the new turbo-generator with surface condenser and auxiliaries and a new 30,000 pound per hour steam generator and auxiliaries.
Plaintiff was a welder by trade and on the 9th day of December, 1948, he was an employee of Daugherty Company, Inc., working at his trade as a welder and cutting pipe to be installed in the new installation. He was working in what is called the pipe shop located in the original building of the defendant. Two hundred other employees were working on the new addition heretofore described. At approximately 3:20 p. m. of that day an explosion occurred in the pipe shop in the Tecumseh power plant in which plaintiff was working, which was under the exclusive and complete control of the defendant. The explosion broke, smashed, and tore into rubble the reinforced concrete floor of the pipe shop. It smashed and destroyed the floor upon which plaintiff was standing and knocked down brick walls in the room in which he was working. Immediately after the first explosion a second violent explosion occurred in the plant which filled the room in which plaintiff had been working with burning gas and vapor, flying dust, concrete, brick and debris.
At the time of the explosion defendant was the producer of electric power through the use of steam boilers, turbines, generators and other equipment. The boilers used and operated by the defendant were fired with gas, oil, and coal to produce the electric power. Such explosions were of gaseous fumes and vapors, the exact contents of which were unknown, and they, the fire following thereafter, and the injuries received by plaintiff, were the result of defendant’s carelessness and negligence in the operation and main tenance of its power plant at a time when such plant, together with all materials used in the producing of electricity, and the pipes, conduits and means of transmission electric current as well as the pipe shop floor and the cavities thereunder were solely and exclusively under the control, care, and operation of the defendant.
As a result of the explosions and subsequent fire plaintiff was severely injured during the course of his employment as an employee of Daugherty Company, Inc., and thereby sustained damages as claimed by him in his petition.
With facts before it of the character outlined the trial court, after overruling certain intermediate motions plaintiff had directed against the answer, sustained defendant’s motion for judgment on the pleadings and in so doing held (1) that under the facts as disclosed by all of the pleadings, the plaintiff and defendant were subject to the Workmen’s Compensation Act of the State of Kansas, and the sole and exclusive remedy of plaintiff is that provided by such Act and (2) that the petition failed to allege facts sufficient to state a cause of action against defendant under the doctrine of res ipsa loquitur. It then entered judgment in favor of defendant and against plaintiff for the cost of the action. Thereupon the plaintiff perfected this appeal.
Summarized appellant’s contentions on appellate review are: First, that the tidal court should have stricken certain allegations from appellee’s answer and required others to be made more definite and certain; second, that under the facts conceded by the motion for judgment on the pleadings appellant and appelle were not subject to the Workmen’s Compensation Act of the State and therefore the trial court erred in holding appellant’s sole and exclusive remedy against appellee for the injuries sustained by him as a result of the explosions at the Tecumseh plant was limited to the relief provided for under the terms of such act; third, that the petition states a cause of action for injury under the doctrine of res ipsa loquitur.
Since they are first in order and in a sense prehminary to disposition of the main issue we shall give our attention to claims advanced by appellant regarding rulings on his motions to the answer. The rule in this state with respect to appellate review of rulings on such motions is well established and can be found in Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469, which holds:
“Motions to strike, to make definite and certain, and to separately state and number, rest in the sound discretion of the trial court, and from rulings thereon an appeal does not ordinarily lie. Unless it appears the ruling prejudiced or will prejudice the substantial right of a party it will not be reversed. Unless it appears the ruling affects a substantial right and in effect determines the action it is not appealable.” (Syl ¶[ 1).
For later decisions to the same effect see Howell v. Flora, 155 Kan. 640, 127 P. 2d 721; Gibson Bodley, 156 Kan. 338, 133 P. 2d 112; Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939; Giltner v. Stephens, 163 Kan. 37, 180 P. 2d 288.
Appellant complains because allegations included in the answer to the effect (a) the construction of the power plant was a part of appellee’s trade and business, (b) all of the employees working on the project were appellee’s employees, (c) appellee and appellant were operating under the Workmen’s Compensation Act, and (d) appellee had received compensation from Daugherty Company, Inc., were not stricken from the answer when motioned. We note these allegations were not admitted by the reply and hence entitled to no consideration in ruling on the motion for judgment. Next it is argued allegations in the answer respecting the extent of appellee’s corporate powers under the charter granted it by the state should have been stricken. One of appellee’s defenses was that in constructing the plant it was engaging in its trade and business. Under such circumstances we are inclined to the view it was groper to plead it had authority to do so. Finally it is claimed an allegation that appellee “entered upon the installation” of the power plant was a confusing conclusion affecting the main issue and should have been made definite and certain. Without laboring this last claim it suffices to say we have examined the paragraph of the answer in which the allegation appears and are convinced it lacks merit. Summing up, we have concluded the record fails to disclose that appellant’s substantial rights were prejudiced by any of the rulings made by the Rial court on the motion to strike or make more definite and certain. It follows such rulings are not appealable and even if they were they would not warrant a reversal of the judgment.
Before giving direct consideraüon to appellant’s second contention, which our research has convinced us raises the most important and decisive appellate issue involved, it will simplify this opinion to point out at the outset certain legal questions essential to its decision which are not in controvery because they are either so well established as to preclude dispute or have been conceded by express admission of the parties.
In this jurisdiction it is well settled that if a workman can recover compensation under the workmens compensation act (G. S. 1935, Ch. 44, Art. 5) for an injury the remedy is exclusive and he cannot maintain a common law action for damages founded on negligence against a party from whom he could have recovered compensation under the act. (Crawford v. Atchison, Topeka & S. F. Rly Co. 166 Kan. 163, 165, 199 P. 2d 796; Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78; Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; Bailey v. Mosby Hotel Co., 160 Kan. 258, 259, 160 P. 2d 701; Jennings v. Kansas Power & Light Co., 152 Kan. 469, 105 P. 2d 882; Echord v. Rush, 124 Kan. 521, 261 Pac. 820).
It is conceded by appellant that appellee, pursuant to G. S. 1935, 44-505, had filed an election to come within the provisions of the compensation act as a public utility and was subject thereto on the date he sustained his injuries if under other provisions of the act he and the appellee came within the scope of its terms and conditions.
The parties agree the provision of the act decisive of the question whether, under the pleaded facts, appellant and appellee are subject to the workmens compensation act is G. S. 1935, 44-503, which reads:
“(a) 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 this 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 this act, reference to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. . . . (d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management. . . .”
It will be noted that provisions of the section of the statute just quoted provide in substance that where a principal contracts with another person to do work which is part of the principal’s trade or business he shall be liable to pay compensation to any injured workman employed in pursuance of a contract to the same extent as though such workman had been immediately employed by him. In construing such statute we have held, so repeatedly that there can no longer be any question regarding the rule, that a principal is liable for injury sustained by workmen of an independent contractor when the accident arises out of and in the course of the principal’s trade or business. Indeed we have said the very purpose of such section is to give the employees of such contractor a remedy against the principal and to give its provisions any other construction would simply mean an employer subject to the compensation act could escape liability for injuries received by persons in carrying on his trade or business by the simple expedient of hiring an independent contractor to do the work and letting him employ and direct the workmen. (See Purkable v. Greenland Oil Co., 122 Kan. 720, 722, 253 Pac. 219; Lehman v. Grace Oil Co., 151 Kan. 145, 98 P. 2d 430; Hoffman v. Cudahy Packing Co., supra, also Bailey v. Mosby Hotel Co., supra, at page 261 of the opinion.) It is, of course, elementary that the statute is equally applicable to employees of subcontractors (Spencer v. Marshall, 107 Kan. 264, 191 Pac. 468). Appellant recognizes this rule and admits that the principal cannot be held liable under the common law for the negligent injury of an employee of an independent contractor where the work being performed under the contract is part of the trade or business of the principal. However, in fairness, it should be here noted he insists the principal is not relieved from liability under the common law simply by reason of the fact the work of such a contractor may be required to equip the principal’s trade or business for operation.
Turning now to appellant’s second contention we omit all reference to what is referred to in his briefs as disputed factual issues and start on the premise, as he expressly alleges in his amended petition or if not concedes by pertinent terms of the contract which he does not deny, that on the date he received the injuries in question and at the time and place therein stated, while working on premises under appellee’s exclusive control, he was employed by an independent subcontractor having a separate contract with independent contractors who had a general contract with appellee, at all times authorized and licensed as a public utility engaged in the production, sale, and transmission of electric power, for new construction at its Tecumseh power plant which included the erection of a new building in addition to those already on the premises and the installation of steam boilers, turbines, generators and other equipment necessary and essential to the production, transmission, and sale of electricity.
Long ago in two decisions which we regard as lodestars in the history of workmen s compensation jurisprudence in this jurisdiction we had occasion under conditions and circumstances somewhat similar to those here involved, except for the magnitude of the contract, to give consideration to and pass upon the force and effect to be given provisions of the instant statute which, so far as the subdivisions pertinent to the appellate issues are concerned, were the same then as they are now. The first of these decisions is Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, the second is Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97.
In the Purkable case the plaintiffs who were dependents of a deceased workman who was killed while at work as the employee of an independent contractor did not seek to hold the decedent’s immediate employer but for some undisclosed reason commenced a compensation proceeding against the company with whom such employer had contracted. In that case we held:
“An oil company engaged in developing mineral resources of leased land and producing oil therefrom, let to an independent contractor a contract to erect a derrick on the land, as an incident to the drilling of an oil well by the company. While the derrick was under construction one of the contractor’s workmen fell from it and received injuries which resulted in death. The workman’s dependents sued the company for compensation. Held, the work of building the derrick was part of the company’s business, within the meaning of the subcontracting section of the workmen’s compensation act (R. S. 44-503); the accident occured on premises on which the company had undertaken to execute work, within the meaning of subdivision (d) of the section; and the company was hable to the dependents for compensation, under subdivision (a) of the section.” (Syl.)
And in the opinion said:
“The company contends Hedges was an independent contractor, and because Purkable was employed by Hedges, tire company is not liable. The statute was enacted for the very purpose of giving employees of the contractor remedy against the principal, and the court has so held. (Spencer v. Marshall, 107 Kan. 264, 191 Pac. 468.)” (page 722.)
Still later and at page 723 of the same opinion, after reviewing the facts in more detail than set forth in the syllabus, we said:
“. . . The result is, the business of the company was operating for and producing oil, the work of building the derrick was part of its business, and the accident occurred on premises on which the company had undertaken to execute work under its management and control and a part of its business.”
Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97, was a case where originally the plaintiff had recovered a compensation award payable in weekly installments from his.immediate employer, who had a general contract with the Gas Company, and the employer s insurance carrier. Long before the payments were paid out both the insurance company and the employer became insolvent. Plaintiff, who otherwise would have been left without recourse, commenced an action for and recovered the balance of the award from the Gas Company under the very provisions of the statute now in question. In that case we held:
“The ruling of this court in the case of Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, followed and applied to facts where a gas company engaged in the business of transporting and distributing gas by and through pipe lines, having procured a right of way for the extension and maintenance of its pipe lines, made an oral agreement with a ditch construction company to dig a ditch for the reception of a six-inch gas pipe line and to backfill the ditch after the pipe line had been laid therein, and the ditch-digging company was to furnish all the necessary help and equipment for the digging and filling of the ditch, and the gas company was to have no supervision or control over the employees or work of the ditch-digging company except such general supervision as was necessary to accomplish the result for which the contract was made, and an employee of the ditch-digging company was accidentally injured while digging such a ditch on the gas company right of way, and held that the work of digging such ditch was a part of the gas company’s business within the meaning of the workmen’s compensation law, and the accident occurred on, in and about the premises on which the gas company had undertaken to execute its work within the meaning of the law.” (Syl. ¶ 3.)
A careful examination of the foregoing decisions makes it crystal clear that under the facts of the instant case in determining the rights of the parties under the provisions of section 44-503 at the time appellant sustained his injuries questions relating to whether (1) the original contract under which appellant was working was general in nature, (2) his immediate employer or the original contractor were independent contractors engaged in specialized work, (3) the appellee possessed adequate facilities to carry on the work covered by terms of the contract, (4) the extent of control retained over the work or workmen required for performance of its requirements or (5) other matters similar in character are of little consequence. In the final analysis the acid test to be applied is whether the work contracted to be done was a part of appellee’s trade or business. If it were, and the rule announced in such decisions is still the law, the parties were subject to the compensation act.
Many decisions construing the provisions of section 44-503 have been handed down since those to which we have just referred. One of the most important is Bailey v. Mosby Hotel Co., supra. In that case a workman s immediate employer had a contract with the defendant to clean and wax the floors of the defendant hotel’s coffee shop. The workman was injured on the hotel premises while engaged in the performance of his employer’s contract. He brought a common law action against the hotel company for damages. We specifically approved and reaffirmed the rule announced in the Purkable and Williams cases, found the waxing and cleaning of the floors in question was part of the business of operating the hotel and held that he could not maintain a common law action founded on negligence against the company because he had a remedy under the compensation act which was exclusive.
In the Bailey case we discussed and distinguished practically every decision wherein we had given consideration to section 44-503 and no useful purpose would be served by repeating what was said in that opinion with respect to them. It suffices to say we are satisfied with the analysis of decisions and interpretation of the statute there made as well as in our subsequent decisions of Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613 and Swift v. Kelso Feed Co., 161 Kan. 383, 168 P. 2d 512, insofar as they deal with the specific point in question, and that we adhere thereto.
With the rule established, since the amended petition alleges the accident in which appellant suffered his injuries occurred on premises on which the appellee had undertaken to execute work, the sole remaining question is whether the work contracted to be done and which was being performed by the contractor (or subcontractor) was a part of the trade or business of the appellee. Heretofore we have pointed out that under the admitted facts appellee was authorized, licensed, and operating as a public utility engaged in the production, sale, and transmission of electric power and that the work contracted for was the erection of a new building in addition to buildings already on the premises and the installation of steam boilers, turbines, generators and other equipment necessary and essential to the production, sale, and transmission of electricity. We note further the petition alleges the explosion occurred just as the appellant had finished cutting a piece of iron for a pipe hanger in a room of appellee’s Tecumseh plant and was ready to leave that room and install the hanger in connection with the construction of the new building and the installation of new equipment therein at such plant. Under the decisions to which we have just referred we have little difficulty in concluding, in fact it is a matter of common knowledge, that steam boilers, turbines, generators and other equipment, as well as a building in which to house them, are a part of the integral equipment necessary to the operation of the business of a public utility which is engaged in the production, transmission, and sale of electricity. New buildings and new equipment whether required for replacement purposes or for increased capacity are incidents essential to the proper maintenance of such business. The result is that the work which the appellee had contracted with the contractor (or subcontractor) to perform was a part of appellee’s trade or business. It necessarily follows the trial court ruled correctly in holding that under the facts disclosed by all the pleadings appellant and appellee were subject to the workmen’s compensation act and that appellant’s sole and exclusive remedy was that provided for by its terms.
In reaching the conclusion just announced we have been mindful of and given weight to what was said in the concluding paragraph of the opinion in Bailey v. Mosby Hotel Co., supra, which is equally applicable to the instant case. It reads:
“The rule is firmly established that the Workmen’s Compensation Act is to be liberally construed to effectuate its purposes. (Murphy v. I. C. U. Const. Co., 158 Kan. 541, 548, 148 P. 2d 771; Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 944, 96 P. 2d 684, and cases cited.) If, under the same circumstances upon which he here relies in a common law action the appellant had sought relief for some injury under the workmen’s compensation act, he would have been entitled to and would have received the benefit of such liberal construction. It would be ironical to apply a different rule simply because in this instance he chooses another course. It would also be unfair to other workmen whose interests may well be affected in the future.” (p. 268).
Appellant insists that our decisions Lehman v. Grace Oil Co., 151 Kan. 145, 98 P. 2d 430; Bittle v. Shell Petroleum Corp., 147 Kan, 227, 75 P. 2d 829; Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P. 2d 252, and Waterbury v. Riss & Company, 169 Kan. 271, 219 P. 2d 673, are contrary to and require a different conclusion than the one just announced. A similar contention was made with respect to the first two decisions last above mentioned in Bailey v. Mosby Hotel Co., supra., and rejected. Therefore we shall not labor those decisions. The Truhlicka case was decided on the proposition that the facts alleged in a petition were so scant that they did not compel a conclusion the work being performed by the plaintiff was a part of the trade or business of the defendant so as to require an injured workman to make an application for workmen s compensation pursuant to the provisions of section 44-503, hence his petition in a common law action founded on negligence was not demurrable. In the Waterbury case the contention of one of several defendants in the action that it was not liable in damages founded on negligence under the. common law for the death of a deceased workman was denied on the ground that the workman s employer, unlike such defendant, was not licensed as a distributor of malt beverages, and was not employed by the defendant to do that type of work by any type of contract. It suffices to say that none of the decisions relied on by appellant goes so far as to hold that a common law action will lie where as here — the work involved is found to be a part of the principals trade or business and that we do not regard any one of them as sound authority for such contention.
As we leave the point in question it should be stated we have not overlooked arguments advanced by appellant to the effect: First, appellee as principal is not relieved from liability under the common law simply by reason of the fact that the work of the independent contractor may be required to equip the principals trade or business for operation; second, that under tlie terms of the contract the parties intended and so agreed that the contractors were independent contractors and appellee would not be liable under provisions of the workmen’s compensation act for injuries received by their employees; third, that appellant and appellee were not subject to the workmen’s compensation act if the work undertaken by appellee and so contracted was not usually or normally performed in the operation of its trade or business. Assuming, without deciding, the correctness of appellant’s first argument as an abstract proposition it has no application to a situation where — as here — the work involved is held to be a part of the principal’s trade or business. The answer to its second argument is that parties cannot by their own agreement do away with liabilities imposed by operation of law. See Phoenix Indemnity Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P. 2d 739; Bailey v. Mosby Hotel Co., supra, and Hoffman v. Cudahy Packing Co., supra, touching on the same point. The answer to its third argument has already been indicated. Shortly stated it is that liability under section 44-503 is not limited to work usually or normally performed by the principal but extends to all work which is a part of its trade or business.
The final question raised on appellate review is whether the petition states a cause of action under the doctrine of res ipsa loquitur. Inasmuch as the trial court properly sustained the motion for judgment on the pleadings and rendered judgment against the appellant on the ground the parties were subject to the workmen’s compensation act and appellant’s sole and exclusive remedy was that provided by the terms of such act a decision of that issue would be of no avail to appellant and would serve no useful purpose in this opinion. Therefore it is not necessary to decide it and we shall not do so.
The judgment is affirmed. | [
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Per Curiam:
Sparks, an employee of the railway company, with others, was engaged in removing the rails from the track and replacing them with new. These rails were thirty feet in length and weighed about 600 pounds. While five men, three at one end of the rail and two at the other, were carrying one of these rails a distance of about ten feet to its place in the track, one Chase, a coemployee, carrying at the same end with Sparks, stepped in a slight depression in the ground, and in consequence thereof threw the greater part of the weight of the end of the rail which they were carrying upon Sparks, wrenching and injuring him, to recover damages for which injuries this action was brought.
At the trial a demurrer to the evidence of plaintiff was sustained and judgment for costs entered for defendant. PUintiff brings error.
We are convinced from an examination of the record that the allegations of plaintiff’s petition as to the negligence of the defendant company are not sustained by the evidence; that the order and judgment of the trial court are correct, and must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Cunningham, J.:
Plaintiff brought this action in ejectment for the recovery of an undivided one-half interest in a tract of land in Reno county, partition of the same, and rents and profits. Her petition set out in detail the facts upon which she relied to establish her title. Findings of fact were made by the court, which, summarized, were as follows : Prior to 1881, plaintiff became the wife of John V. Kennedy, and in that year she settled with him upon the land in question and it became their homestead. They continued to reside upon it until the year 1883, when, a disagreement arising between them, she abandoned her residence in Kansas and returned to her former home in the East, where she has ever since resided. At the time she left she did not intend to return to live with her husband upon the land in question, unless a reconciliation should be accomplished, which never occurred. She took with her the children born of this marriage, but her husband continued to live upon the land as his homestead with some children which he had by a former wife. In 1887 he abandoned the land as a homestead, and in 1888 sold it for a full consideration to one who was without knowledge of the fact that Kennedy had a wife living, or that she had ever resided in Kansas. He held himself out, and described himself in the conveyance as an unmarried man. By subsequent conveyances, the land is now the property of some of the defendants, who are in possession. None of these subsequent grantees had knowledge of Mrs. Kennedy’s claimed rights. Mrs. Kennedy had no knowledge prior to the death of her husband that he had conveyed or encumbered the land.. Kennedy died intestate in 1897 leaving his three children, and these were made parties defendant and filed cross-petitions admitting the ownership of Mrs. Kennedy to one-half of the property, claiming the other half as theirs, and asking the same relief that she did. Upon these facts, the court found against the claim of both the plaintiff and cross-petitioners and quieted the title of those holding under the deed executed by Kennedy, as a single man.
In due time and in a proper manner application was made by the plaintiff and cross-petitioners for a second trial, under the provisions of section 599 of the code of civil procedure section 5086 of the General Statutes of 1901, which provides :
“In an action for the recovery of real property, the party against whom judgment is rendered may at any time during the term at which the judgment is rendered demand another trial, by notice on the journal, and thereupon the judgment shall be vacated and the action shall stand for trial at the next term.’’
This demand was refused by the court, which action constitutes the first assignment of error.
We think a new trial should have been awarded. While partition and a claim for rents and profits were joined with the action in ejectment, such joinder and the relief thereby demanded were mere incidents of the main action, which was for the recovery of real property, and followed as a matter of course the decision of that main 'question. The fact that plaintiff set out in extenso the details of her claim, rather than that she confined herself, as she might have done, to the strict legal statement that she had an interest in the land and was entitled to the possession of it, did not make the action less a one for the recovery of the land. We have already held (Cheesebrough v. Parker, 25 Kan. 566) that the joining of a claim for the mesne profits with one for the recovery of real estate does not deprive the party of a new trial as of right, the recovery of such profits being a mere incident of the action. Within the logic of this case would fall the same conclusion as to partition. Indeed, such has been held in several cases in Indiana. (The Physiomedical College et al. v. Wilkinson et al., 89 Ind. 23; Cooter et al. v. Baston et al., 89 id. 185 ; Kreitline et al. v. Franz et al., 106 id. 359, 6 N. E. 912; Powers v. Nesbit et al., 127 id. 497, 27 N. E. 501.)
This case cannot be held to be analogous to Douglass v. Nuzum, 16 Kan. 515, or Main v. Payne, 17 id. 608, which were actions to quiet title, nor to Keith v. Keith, 26 id. 26, which was an action to reform a deed. We are of the opinion that where the principal object in an action is the recovery of real property, no matter whether plaintiff states his cause of action, in the language of the statute, or by detailing the facts at length, he is entitled to the second trial as a matter of right, and this although he may demand other relief than such recovery, provided such other relief is but incidental to recovery. [Delashmutt v. Parrent, 39 Kan. 548, 18 Pac. 712.)
A second question is of greater difficulty. It is one arising upon the construction of section 8 of the act relative to descents and distributions, being section 2510 of the General Statutes of 1901, which is as follows :
“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state. . . .”
The trouble arises over the meaning of that portion of the section which reads, "when the wife, at the time of the conveyance, is not or never has been a resident of this state.” The contention of the plaintiff is that the word "or” should be read "and,” with the result that if the wife has ever been a resident of the state she would be entitled to the rights given under this section. It is a principal well settled that in the construction of statutes, as well as wills and contracts, where the sense demands it, or the intention is evident, the words "or” and "and” may be exchanged and used conveítibly. (Starr v. Flynn, 62 Kan. 845, 62 Pac. 659 ; Endl. Interp. Stat. § 303.) It is the duty of courts in construing statutes to give effect to all of the language used, if possible by any reasonable construction. In this case, if the word "or” is used and given a disjunctive signification, then the words "never has been” are pleonastic and have no sense or meaning whatever; for if the wife is not a resident at the time of the conveyance, she is deprived of her right of heirship, no matter whether she may or may not have been formerly a resident of the state. Indeed, we may go further and say that the use of the words "never has been” shows an intention on the part of the legislature not to limit the operation of the law to the fact of her present residence. It is within common knowledge that the words “or” and “and” are frequently used interchangeably, not only by those unskilled in the use of language, but by those who are acquainted with the shades of difference in the two conjunctions, for oftentimes the idea of the user is as correctly expressed by the use of one as the other. If we shall substitute the word “and” for “or” we do not limit the right of inheritance given in the first part of the section to those consorts who were residents of the state at the time of the conveyance but include those as well who have ever been such residents. This conclusion gives some meaning to all of the words of the statute and is, we think, consonant with the purpose of the legislature. We are also of the opinion that such rendering agrees with the general understanding of the profession in the state.' We find in the opinion of Chief Justice Martin in Small v. Small, 56 Kan. 1, 11, 42 Pac. 323, 30 L. R. A. 243, 54 Am. St. Rep. 581, where reference was made to this part of the section, that the word “ and” is used and not “ or.”
Counsel place much stress upon certain language used by the court in Buffington v. Grosvenor, 46 Kan. 730, 27 Pac. 137, 13 L. R. A. 282. The point there under consideration was entirely different from the one now at bar. Reading the language in the light of the issue, it will be found inapplicable to this case.
We are therefore constrained to hold that the right of inheritance of property conferred by the general provisions of the section under consideration is not limited by the proviso therein, except in case the surviving consort has never been a resident of this state ; and in this case, if it shall appear upon further trial that plaintiff ever has been a resident of this state, then she will be entitled to recover one-half of the property in dispute, provided she has made no conveyance thereof.
The case will be reversed, with instructions to proceed further in accordance with the views herein expressed.
Johnston, C. J., Smith, Pollock, Mason, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.
This was an action brought by Ella Gregg to recover from J. William Searle, Joseph Church and H. C. Hargis, for the alleged wrongful conversion of two cows and thirteen hogs. In the trial court she prevailed, and recovered a judgment against Searle and Church of $120.68. They complain of the ruling of the court in refusing to sustain the demurrer to the evidence, and also of instructions that were given to the jury.
It appears that Searle held a claim against the husband of Mrs. Gregg. Shortly before the transaction involved here Mr. Gregg had abandoned his wife and five children, and when he left the country he took most of their accumulations with him. The cows and hogs mentioned were about all that were left with Mrs. Gregg. Hargis, an attorney for Searle, and Church, a constable, went to the home of Mrs. Gregg and insisted that she pay her husband’s debt to Searle. There is testimony tending to show that when they were told that she could not pay it they threatened to attach the cows and hogs, take them from the premises, and sell them for what they' would bring at forced sale. They told her that the papers were already made out and in the hands of Church, an officer of the law; that the property was subject to attachment, and that they could take it to satisfy Searle’s debt wherever it could be found. They would not wait for her to take the advice of friends, but demanded a mortgage on the property at once, insisting that if she refused they would take it away by process of law. She says that under the pressure of the threats made and the fears thereby excited, a mortgage on the stock was executed to Searle. In about two months afterward the property was taken under the mortgage by Church and Searle’s son and applied on Searle’s claim.
There was sufficient evidence to connect Searle and Church with the taking and appropriation of the property and enough to sustain a finding that the mortgage was made under the duress of her fears, excited by the threats of the immediate seizure and sacrifice of her property at a forced sale. The property, or most of it, was exempt from seizure, and the mortgage of such property without the signature or consent of her husband was void. (Gen. Stat. 1901, § 4255 ; Alexander v. Logan, 65 Kan. 505, 70 Pac. 339.)
Apart from this invalidity, the mortgage was obtained under the claim that there was legal authority to take and appropriate it for Searle’s debt. He had no such right, and the suing out of an attachment, together with the threats made by him and in his behalf, strongly tend to show that the' execution of the mortgage was compulsory. The essence of a contract is voluntary consent, and where it is made under compulsion there is no consent, and therefore no validity. If the demand was wrongful, as the jury has found,» the execution of a mortgage under a threat of mischief or injury either to her person or her property which prevented the exercise of free will and consent will be regarded as having been under duress, and no rights can be built upon it.
Complaint is made of an instruction upon the subject of duress in which the word “force” was used in connection with the threats which it is alleged induced the signing of the mortgage. It is contended that there was no testimony justifying the use of this term, and it is true that there was no testimony that physical force was used. If the word had been used in the sense contended for, the error would have been to the advantage of the plaintiffs in error, because the court made force and threats necessary to a finding in favor of Mrs. Gregg. It is plain enough that the court referred to the compelling force of fear, and had no reference to physical force, and in no event could the expression as used have prejudiced the plaintiffs in error.
No error being found in the record, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wertz, J.:
Appellant (plaintiff below) as landowner brought this action against the appellees (defendants) as tenants under a written lease.
Plaintiff’s first cause of action was to replevin the entire volunteer wheat crop raised and harvested on 88.43 acres of the leased land. His second cause of action was to recover damages against defendants for their failure to drill and plant 212 acres of wheat which with the 210 acres drilled would make up the % of the section required, under terms of the written lease, to be drilled to wheat.
Defendants answered claiming % of the volunteer wheat crop raised and harvested on the 88.43 acres; the answer alleging that the written lease had been modified by an oral agreement of December 11, 1947, to permit the volunteer wheat on 182 acres in the south /3 of the section to stand and mature and be treated as drilled wheat. In their cross petition, defendants claimed damages against plaintiff for plowing up 94 acres of this 182 acres of volunteer wheat referred to above in which defendants claimed a % interest.
Plaintiff’s amended reply denied making any oral agreement which modified the terms of the written lease.
The pertinent facts may be stated as follows: On December 4, 1946, plaintiff-lessor leased to defendants a short section of land consisting of 633 acres in Finney county for a term of one year commencing on August 1, 1947, and ending July 31, 1948. The lease consists of a printed form containing nine separate printed provisions having nine typewritten provisions on the back and having attached thereto numerous additional provisions; due to the length of the lease it will not be set out, but pertinent provisions thereof will be referred to.
Under the terms of the written lease, at least % (422 acres) of the entire acreage of the section was to be well cultivated to make a good seed bed and planted to wheat in the fall of 1947. The remaining K (211 acres) of the section was to be summer fallowed in the fall and in the spring and left rough to prevent blowing and to catch and preserve the moisture.
Defendants went into possession of the land and worked what they thought was % of the land which was to be drilled to wheat under the terms of the lease. This consisted of the north % and the south U of the section leaving the center % for summer fallow. Later and after the first moisture of the fall season, defendants started to drill wheat on the ground that had once been worked. They had drilled the north % of the section (210 acres), and had started on the south M, having drilled approximately nineteen acres thereof, when the weather became bad and as a result further drilling was impossible. There was at this time, in the latter part of November or fore part of December, 1947, a good stand of volunteer wheat growing on this south % of the section. On December 11, 1947, defendant Alvin Wehkamp went to the office of plaintiff in King-man, Kansas, and told plaintiff that their drills and machinery were still in the field and the seed wheat in the granary. Said defendant testified to the following conversation with the plaintiff on December 11 with reference to modifying the terms of the written lease:
“A. Well, as near as I can remember, I told Mr. Alexander our drills were still in the field, and tractor, and my truck was in the granary, and the volunteer was coming up, and I didn’t think it would be. a good idea to sow that and kill that volunteer, as late as it was, because it was a good stand and thought it would be good to leave it standing for a crop, and he agreed on that.
“Q. Just tell the conversation, as near as you can remember.
“A. He said he guessed it would have to be all right; he didn’t like it; I said I didn’t like it either, but as late as it was it looked like the only thing we could do if we wanted to raise a crop of wheat.
“Q. Did you tell him you weren’t going to drill the rest of that”. . . .
“A. No, I didn’t tell Mr. Alexander I wasn’t, until he said it would be all right. I wouldn’t have to, and I just decided that; I didn’t say, as I remember, that I absolutely wouldn’t, or wasn’t.”
The north H of this section is not in question in this case, that 210 acres of drilled wheat having been harvested and properly divided between the parties. The center % of the section, ap- . proximately 212 acres, which the plaintiff claims should have been planted tp wheat as alleged in his second cause of action, was never worked and defendants claim that was the portion (% of the section) left for summer fallow under the terms of the lease; that they had the right to determine the part of the section to be summer fallowed; that the section was not worked because of the extreme dry weather; and there were not sufficient weeds to require that ground to be worked; and for the foregoing reasons they were not liable to plaintiff in any sum on his second cause of action.
There seems to be no dispute but that the center % of the section was to be left for summer fallow. Plaintiff testified that in speaking of the summer fallowed land he referred to the center piece, and late in the fall advised defendants by letter that inasmuch as that ground had not been worked or summer fallowed, they should not at that late date do so until further authorization from him. No such authorization appears in the record.
Plaintiff testified:
“Q. Now referring back to your letter of August 4th, or — your letter of September 27, you say ‘on talking to Alvin [defendant], he advised that the ground that you didn’t expect to put to wheat was not summer fallowed’. What ground were you referring to there?
“A. The ground that he said hadn’t been plowed at all.
“Q. You didn’t expect that to be put into wheat in the fall by the Wehkamps, did you?
“A. I didn’t know; I knew they had agreed to put in two-thirds under the lease; I had no control over what part they put in.
“Q. You understood at that time that was the part they were not going to sow?
“A. That is what he said he wasn’t going to.
“Q. And you made no objection to that at the time?
“A. I did on August 4th . . . [by] that letter of August 4th.
“Q. You mean in this letter you made some objection to them leaving this middle part as summer-fallowed ground?
“A. I said it should all be plowed.
“Q. But that still didn’t mean that that was not going to be left for summer fallow.
“A. That was up to them; I had no control over what they put in, as long as they put in two-thirds. Nothing in the lease says that I have anything to say about what they drill, or don’t drill.”
This brings us to the question involved in this law suit; that is, right to the crop raised on the south % of the section consisting of approximately 201 acres. Nineteen acres of this % was drilled to wheat and harvested along with the north % of the section, and is not in question here, leaving approximately 182 acres of volunteer wheat on land which, under the terms of the lease should have been plowed and planted, but as hereinbefore alleged, the condition of the weather and the lateness of the season made planting it practically impossible. As a consequence, defendants allege that on December 11th they contacted the plaintiff at Kingman in regard to modifying the written lease by permitting the volunteer wheat, which was looking good, to stand and be treated as drilled wheat, and that plaintiff orally agreed thereto.
Judgment was rendered in favor of the defendants for possession of % of the volunteer wheat crop raised on the 88.43 acres and for $1130 on their cross petition for damages for % of the value of the volunteer wheat on the 94 acres plowed up by plaintiff without defendants’ consent. From this judgment plaintiff appeals and assigns numerous specifications of error.
Plaintiff complains that the court committed error in overruling his motion for judgment at the close of defendants’ evidence and plaintiff’s demurrer thereto, and claims there is no evidence to show any valid oral contract changing the terms of the written lease. As heretofore related, on December 11, 1947, defendants contacted plaintiff in his office at Kingman and there related the facts to the plaintiff that it was too late to plant the south % of the section and it was impossible to prepare the ground for such planting; that the volunteer wheat growing on that part of the section was good and if left standing would produce a crop; that the plaintiff agreed with defendants that owing to the late date it would be better to let the volunteer wheat stand. This conversation is not denied by the plaintiff and a careful examination of the record discloses that if anything, the plaintiff consented thereto. Plaintiff testified that on December 11, 1947, defendant Alvin Wehkamp came to his office in Kingman and that a conversation took place with reference to the planting of the south % of the section. The substance of the conversation is hereinbefore set forth. Plaintiff was questioned with reference to the conversation and he testified that if he answered defendant at all, he agreed with him, but he didn’t remember giving him an answer.
There was ample evidence to justify the trial court in overruling plaintiff’s motion for judgment and demurrer to the evidence. The matter was submitted to the jury which by its general verdict found all issues in favor of defendants, including a finding that the written lease was modified by an oral agreement on December 11, 1947.
Inasmuch as the general verdict carried the finding that the written lease was modified by the oral agreement, plaintiff’s first and second causes of action must fail because they are based on the written lease.
This brings us to the question of the specification of error raised by the plaintiff that the court erred in its instructions to the jury. Plaintiff’s main contention is that the court failed to properly instruct the jury on the burden of proof, and he contends that the court should have instructed the jury that it was incumbent upon the defendants to prove their cause of action on an oral modification of the lease by clear and convincing evidence.
An examination of instructions 3 and 5 given by the court discloses that plaintiff’s request had been substantially complied with. The court stated in instruction 3 among other things that “you are further instructed that the burden of proof in this case shifts to the defendants, to prove to your satisfaction by a preponderance of the evidence, every allegation of their answer and cross-petition to establish the existence of the oral contract and agreement claimed by them.” Pertinent parts of instruction 5 read as follows: “By a ‘preponderance of the evidence’ is not meant merely the greater number of witnesses upon the side of the other, but is that evidence which is most convincing and satisfying to the jury.” (Italics supplied.)
Appellant contends that a higher degree of evidence, clear and convincing rather than a preponderance, is necessary to show an oral modification of a written contract. Where a written contract in evidence is an admitted fact, and the issue is to an alleged oral modification thereof, an instruction that the written agreement is the best evidence, unless the oral modification is established by a preponderance of the evidence satisfactory to the minds of the jurors, is not erroneous as an instruction that the written contract is entitled to greater weight than other evidence. Where there is a dispute as to the intention of the parties to a written contract, and a question of its subsequent modification by oral agreement, the interpretation of the written contract in connection with the oral contract is for the jury. (Carstens v. Earles, 26 Wash. 676, 67 Pac. 404; 13 C. J. 779.) Evidence to show a parol modification of a written contract must be clear and convincing, but it need not be uncontroverted. A preponderance of the evidence will suffice. (13 C.J. 779; 17 C.J. S. 1260.)
Other specifications complaining of error in the court’s instructions have been examined and found without merit. From an examination of the instructions given, as a whole, and the entire record, we are convinced the jury was fairly apprised of the issues involved, and the failure on the part of the court to give plaintiff’s requested instructions did not prejudicially affect his substantial rights.
Plaintiff asserts error in the court’s refusal to submit to the jury certain special questions requested by him. At the outset it may be stated that it is not error to refuse to submit to the jury questions which would not if answered elicit any fact that could affect the judgment to be rendered. (Campbell v. Reno County, 103 Kan. 329, 175 Pac. 155.)
We have carefully examined the special questions requested by plaintiff and inasmuch as the oral conversation had between the parties on December 11, 1947, with reference to modifying the original lease, is not disputed by plaintiff, answers to the questions, had they been submitted, could have had no effect on the judgment rendered. The question of consideration for the oral modification of the lease was a matter of law to be decided by the court. It has been held that there is sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee. Faced at the late date of December 11th with the uncertainty of any crop from wheat which might thereafter be planted in accordance with terms of the existing lease, plaintiff agreed to the modification which gave him an assured crop from the good stand of volunteer wheat already growing on the.land. Surely the benefit to promisor from such a modification cannot be seriously questioned. The trial court has a wide discretion as to the special questions to be submitted to the jury, and where it appears that a question is not intended to bring out some ultimate fact in the case, it is proper to refuse to submit it. (Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900.) Moreover, it is not reversible error to refuse to submit to a jury a special question where the answer to the question, by itself or in connection with another question submitted, could not have been contradictory to the general verdict or could not have compelled a different judgment. (Abell v. Railway Co., 115 Kan. 132, 222 Pac. 91.) We find no error requiring a reversal of the judgment by reason of the lower court’s refusal to submit to the jury the special questions requested by plaintiff. .
Other specifications of error are asserted by plaintiff, all of which have been considered. However, in view of the entire record, instructions given by the court, the general verdict rendered by the jury, and the judgment of the court, those alleged errors are at most technical and do not affirmatively appear to have prejudicially affected the substantial rights of the plaintiff. In this jurisdiction, technical errors which do not affirmatively appear to have prejudicially affected the substantial rights of parties are not grounds for reversal of a judgment (G. S. 1949, 60-3317 and cases cited thereunder; Stevens v. Jones, 168 Kan. 583, 215 P. 2d 653; Hatcher’s Kansas Digest, Appeal and Error, §§ 509, 592; West’s Kansas Digest, Appeal and Error, §§ 1026, 1034).
No error having been made to affirmatively appear, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a prosecution under what is commonly referred to as the demand portion of our embezzlement statute, G. S. 1949, 21-545, which reads:
“. . . if any agent shall, with intent to defraud, neglect or refuse to deliver to his employer or employers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt or other property which may or shall have come into his possession by virtue of such employment, office or trust, after deducting his reasonable or lawful fees, charges or commissions for his services, unless the same shall have been lost by means beyond his •control before he had opportunity to make delivery thereof to his employer or ■employers, or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.”
Four counts of the amended information were framed in a similar manner. We need, therefore, consider only the first count. It reads:
“I, the undersigned, County Attorney of said County, in the name and by the authority and on behalf of the State of Kansas, give information that on or about the 26th day of August, A. D. 1949, in said County of Reno and State of Kansas, one Harry H. Hoffman, then and there being, did then and there unlawfully, feloniously and wilfully while being the agent of the Red Arrow Trailer Manufacturing Company, a Missouri corporation, with the intent of him, the said Harry H. Hoffman, to defraud said Red Arrow Trailer Manufacturing Company did then and there on demand of said Red Arrow Trailer Manufacturing Company made at Long Beach, California, on or about the 26th day of August, 1949, after the said Harry H. Hoffman had fled the State of Kansas, neglect and refuse to deliver to the said Red Arrow Trailer Manufacturing Company, the sum of $1840.00, which said sum had come into the possession of the said Harry H. Hoffman on or about the 6th day of June, 1949 by virtue of his employment as an agent of the said Red Arrow Trailer Manufacturing Company and which said sum was the proceeds from the sale of one 25 foot Red Arrow Trailer, serial No. 495-42-22, and which said sum so received by die said Harry H. Hoffman as aforesaid was due to the said Red Arrow Trailer Manufacturing Company after deducting all reasonable and lawful fees, charges and commission. Contrary to the form of Statute 21-545 in such case made and provided and against the peace and dignity of the State of Kansas.”
Defendant’s motion to quash the amended information which the district court sustained was:
“. . . that said information shows on its face that defendant has committed no offense against the laws of the State of Kansas, or within the State of Kansas, and that the Court has no jurisdiction to try defendant under said information.”
The exact theory upon which the court sustained the motion is not reflected by the record. Appellee has filed no brief. Appellant contends the question is whether it is possible to commit a public offense in Kansas under the demand portion of this statute where an agent converts funds of his principal to his own use in this state and a demand for the delivery thereof is made on the agent in another state. We do not think the real question presented is whether it is possible to state a public offense under those circumstances but rather whether this particular information actually charges such an offense.
The theory upon which the district court sustained the motion to quash not being disclosed by the record we shall briefly consider the state’s contention as stated. If the question presented to the district court was that stated by appellant we unhesitatingly say an accused cannot flee from this state, thereby preventing service of demand on him within the state, and thus circumvent prosecution for embezzlement under this portion of the statute. If an accused were permitted to do so he could easily nullify the true purpose and intent of the statute by flight from the state.
True, we have held a demand is a prerequisite to a prosecution under this portion of the statute. (State v. Rush, 138 Kan. 465, 469, 26 P. 2d 581; State v. Evans, 143 Kan. 29, 53 P. 2d 789; State v. Rehg, 157 Kan. 203, 215, 139 P. 2d 838, and cases therein cited.) In State v. Rush, supra, we also said the essence of the offense denounced by the concluding portion of the statute was the failure or refusal to pay or to deliver to the principal, on demand, money or property coming into the hands of the agent by virtue of his employment.
The effect of a demand outside of the state presents a question of first impression in this state. None of our previous cases dealt with such a demand. There is respectable authority that proof of demand is not necessary where a defendant has become a fugitive from the state and that in such a situation the state may prove the conversion otherwise than by demand and refusal. (Kossakowski v. The People, 177 Ill. 563, 53 N. E. 115 and Agar v. State, 176 Ind. 234, 94 N. E. 819, in which are cited cases from various other jurisdictions; Underhill’s Criminal Evidence, 4th ed., §493.) In such cases it is held the venue may be laid in the state and county where the accused was under obligation to account. In the instant case we need not determine whether a demand was necessary as it was made.
It is true that in State v. Evans, supra, we said:
“It is the law that the crime of embezzlement is committed when one who is entrusted with the money or property of another fails to have it forthcoming on the lawful demand of the person to whom it belongs. This is a rule of necessity. The state could never show at what particular instant of time or in what particular locality any wrongdoer conceived and put into execution his wicked design of appropriating to his own use the money or property entrusted to his keeping.” (p. 31.)
The foregoing statement in the Evans case does not purport to preclude a prosecution in this state when the accused has fled its jurisdiction. In the Evans case the accused was under duty to account in Montgomery county and a formal demand was there made on him and refused. It was held that a mere previous request of the defendant in Grant county where he resided “to tell and itemize what [he] had done with that money” did not deprive the district court of Montgomery county of jurisdiction.
We think where an accused has fled from this state, making a demand on him within it impossible, the venue may be laid in the county of this state where it was his duty to account and where he breached that duty. Whether the venue might also be laid in some bther county of this state, under the provisions of G. S. 1949, 62-407, which reads,
“When property taken in one county by burglary, robbery, larceny or embezzlement has been brought into another county, the jurisdiction is in either county”,
need not be determined now.
We now turn to the amended information to determine whether in view of the foregoing conclusion the information charges a public offense was committed in Reno county. We think it does not. The information does not actually allege the accused came into possession of the funds in Reno county on or about the sixth day of June, 1949. Of course, the funds actually may not have come into his possession in that county and this may account for a failure to so allege. But irrespective of where the funds may have come into his possession the information fails to allege the accused was under obligation to account for the balance due in Reno county, when under his agency agreement he was required to account and that he breached his duty to. do so. The information appears to allege the offense was committed in the state of California on August 26, 1949, the date on which the demand was there made. The demand although otherwise a prerequisite to a prosecution under the statute does not determine venue where the defendant by fleeing from the state makes service of demand on him within this state impossible. We think the motion to quash was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Bürch, J. :
The petition in this action charged that the Guaranty Investment Company was a corporation which had been engaged in making loans on real estate, and that the plaintiff, Davis, was its duly appointed and acting receiver; that the defendant, Millikan, was an agent of the company for the purpose of taking applications and closing up loans ; that Millikan and the defendant, Guernsey, working together, procured an application for a loan, which was subsequently approved and a draft for the proceeds' sent to Millikan in January, 1890 that Millikan had instructions to see that all prior liens on the real estate offered as security were released before delivering the draft; that Millikan cashed the draft and turned over the proceeds to Guernsey, who had full knowledge of the purpose for which the money had been received, and of Millikan’s duty with reference to it; that neither Millikan nor Guernsey procured releases of certain mortgages which were subsequently foreclosed as prior lien's; that Millikan and Guernsey concealed the fact that the prior liens had not been discharged until October, 1892, when, upon a discovery of the facts, the company made demand on them for a return of the money, and offered to return the notes and mortgages of the borrowers, which demand was refused and which offer was rejected; that Millikan and Guernsey wrongfully and fraudulently converted the money they had received to their own purposes, whereby they became indebted to the receiver, as the representative of the company, in the sum of $1359.50 and interest. The action was begun in April, 1894.
The sufficiency of the petition was assailed by demurrer, and by proper objections at each subsequent step in the case, on the ground that the action necessarily was for relief on the ground of fraud ; that the allegations were insufficient to warrant relief upon that hypothesis and that under the allegations made the action was barred. It was not necessary that the action be regarded as for relief on th'e ground of fraud. The petition contained a statement in ordinary and concise language of facts sufficient to constitute a cause of action as for money had and received. Since the money was received by Millikan as agent of the company, the statute of limitations did not commence to run until the principal had knowledge of the agent’s wrong (Perry v. Smith, 31 Kan. 423, 2 Pac. 784) ; and since, with full knowledge.of all the facts, Guernsey actively and efficiently participated in Millikan’s breach of trust, the same rule applies to him. Therefore, the petition is sufficient, and the action was not barred.
Much of the testimony is conflicting. Some of it might bear several interpretations, but every allegagation essential to recovery is sustained by some clear testimony. Some of the objections to the evidence introduced are technically valid, but upon a full review of all the evidence it appears that the error in overruling them was not sufficiently prejudicial to require a new trial. Other objections were not suffi ciently comprehensive to reach the defect in the evidence sought to be excluded.
Under the pleadings and the evidence, the relations between Millikan and Guernsey were such that the letter of Millikan to the plaintiff, under date of June 11, 1890, was properly admitted, and as between the parties to this suit the reassignment to the loan company of the mortgage taken for the loan from a party to whom it had been assigned was sufficient and was properly admitted. On account of the manner in which the pleadings were framed, and the manner in which the reassignment became material, it was not necessary that the reassignment be pleaded.
Some of the testimony excluded was fully covered by other questions and answers. Some of it was not material, in view of the whole evidence introduced. The exclusion of Millikan’s testimony, which amounted to nothing but a recital of what he saw in written documents, was proper, because the instruments should speak for themselves.
Under the theory of the case held by plaintiff in error, some of the instructions would have been prejudicial. Under the theory of the trial court, and the theory set forth aboye, they were not so far erroneous as to require a reversal of the judgment.
The petition alleged specific direction by the company to Millikan, with reference to his conduct in closing this particular loan, and the court instructed the jury upon that hypothesis. It is contended that no such specific direction was shown, and that there was, therefore, no evidence upon which to base the instruction. The evidence, however, clearly showed that Millikan’s duty in the specific case was one which rested upon him in every case. That fact the defendants themselves brought out in the cross- examination of one of plaintiff’s witnesses. This evidence was sufficient to support the allegation, of a specific direction, and sufficient to support the instruction given.
Many of the special-questions answered were wholly immaterial. While the jury found that Guernsey was secretary of the Commercial Bank Mortgage Company at the time of the transaction in dispute, they were not asked, and did not find, that he acted as a representative of that institution in what he did, and there is nothing in the findings to exclude his personal liability, even though he involved his company'in the handling of the fund. So far as the special findings relate to the substantial issues under the pleadings they are not so inconsistent with the general verdict as to overturn it.
All the errors complained of have been examined, but an extended discussion of them is not required. Upon the whole case it appears that the loan company suffered grievously from the conduct of the defendants in the action, and that their resulting liability has been fairly established.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This action was brought to recover taxes and interest paid under protest by the plaintiff in error to the treasurer of Miami county. To the petition the defendant demurred. The demurrer was sustained and judgment rendered against plaintiff.
In 1896 the state board of railroad assessors assessed the railway property of the plaintiff in Miami county at $2420.40 per mile. The total valuation, upon this basis, was $200,124.11. The total valuation of taxable property in said‘county, except railroad property, as returned by the county clerk to the state auditor, was $3,782,071. The state board of equalization, for the purpose of equalization, raised the assessed value of the property as returned by the clerk, except railroad property, nine per cent., and apportioned to Miami county $21,071.17 as its proportion of state taxes. The board of county comissioners did not adopt this valuation as a basis for the levy; hence the clerk increased the rate per cent, of the levy. Plaintiff claims that by this act 'it was made to pay the same rate per cent, on a valuation nine per cent, higher than other property in the county " . school-district, township, city and county purposes. On December 20, 1896, it tendered to the treasurer of said county the full amount of its taxes due for the year, less this excess of $612.03, and also less five percent., the latter being the rebate on one-half thereof, which would not be due until June 20, 1897. The treasurer refused to accept such tender and demanded the additional sum of $612.03. To prevent the treasurer from adding a penalty for non-payment and issuing a warrant for the collection of its full amount of' taxes,. plaintiff paid the sum of $6030.11, less said $612.03, and then commenced an action to restrain the treasurer and board of county commissioners from, collecting said additional sum of $612.03. This action was continued from time to time until November 30, 1900, when it was voluntarily dismissed. On the 18th of July, 1901, the treasurer of said county issued his warrant to. collect the said $612.03, with fifty per cent, interest and penalty, making $1994.19.
The petition also contained the statement of a second cause of action based upon similar facts occurring, in 1897, alleging payment of said claims under protest, and praying for judgment against the defendant for the two items, making a total of $2868.02, -with interest.
Where the state board of equalization raises the-valuation of the property of .a county, under section 7702, General Statutes of 1901, the board of county commissioners is not bound to adopt that valuation in making a levy for state and other purposes, but the county clerk may proceed, under section 7611, General Statutes of 1901, to raise the rate per cent, sufficiently to provide the county's proportion of state taxes.' (Geary County v. Railway Co., 62 Kan. 168, 61 Pac. 693.) Plaintiff contends that because the board of county commissioners did not raise the assessed valuation of the taxable property in the county, in accordance with the suggestion of the state board of equalization, but instead raised the rate per cent, of taxes, the plaintiff has been discriminated against and required to pay the higher rate per cent, on the full value of its property in said county, while other property-holders have been only required to pay the higher rate per cent, on the lower valuation fixed by the county officers.
This contention rests upon the assumption that the state board .of equalization determines and fixes the valuation of the taxable property in the different counties; that it determined in this case that the assessed value of the property in Miami county, as returned by the county clerk, was below its actual value, and raised it nine per cent., to its true value. The state board of equalization does not determine or fix' the value of the taxable property in any county ;" its only duty is to equalize the values between the several counties. The valuation returned in all the other counties in the state may have been greater than the actual value of the property, or the valuation returned by the county clerk of Miami county may have been the full value of the taxable property in that county. The only duty of the board of equalization is to equalize the assessed value of the different counties.
It was not shoym that any of the property in Miami county was assessed at less than its actual value. The petition does state that all property, except railroad property, was assessed at less than its actual value, but this conclusion of the plaintiff in error is drawn from the previously stated fact that the state board of equalization had raised the assesséd value on all such property, except railroad property, nine per cent. This conclusion does not follow from the fact stated. The state board of equalization, as'has been stated, had no duty to perform except to equalize the valuation of different counties.
After the dismissal of the injunction action, the county treasurer issued his warrant for the collection of the original taxes, penalties, and interest from the date of the injunction at the rate of fifty per cent, per annum. Section 7658, General Statutes of 1901, fully authorizes this. It reads :
“In case the county treasurer shall be restrained from selling any real estate by reason of an injunction, and the injunction shall be dissolved,- the treasurer, at the sale provided for in the preceding section, shall include all penalties and interest that would have accrued had the sale taken place at the time fixed by law. And in cases where the county treasurer or sheriff shall, by injunction, be restrained from the collection of taxes due upon personal property, and - the injunction be dissolved, the county treasurer or ' sheriff shall collect the original taxes and penalties, with interest from the date of the injunction at the rate of fifty per cent, per annum.”
It is contended that this section is violative of section'1, article 11, of the constitution of the state of Kansas, which declares that “the legislature shall provide for a uniform and equal rate of assessment and taxation,” and that-it is violative of section 17, article 2, which provides that “all laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted.” It is argued that if an injunction brought to restrain the collection of taxes on real estate be dissolved, all that can be collected by the treasurer is the penalty; while under similar circumstances, if an injunction to restrain the collection of taxes on personal property be dissolved, in addition to the penalty there shall be collected interest at the rate of fifty per cent, per annum.
The rules laid down in the constitution controlling the legislature in providing for a uniform and equal rate of assessment and taxation, and providing that all laws of a general nature shall have a uniform operation throughout the state, are not limitations on its power to fix a penalty for the non-payment of taxes, or a limitation on it in fixing different penalties for the non-payment of taxes on different kinds of property. It is within the knowledge of all that' there is more danger of the state’s losing its taxes on personal than on real property. This of itself is a sufficient reason, if one need be given, why different penalties should •be provided for the non-payment of taxes on these different kinds of property. There is no constitutional inhibition on tho legislature’s fixing any penalty for the non-payment of taxes.' There is no distinction between the penalties attached for the non-payment of taxes on different classes of personal property. In this respect the laiv has a uniform operation throughout the state ; it operates on all alike, and is, therefore, not subject to the criticism made on it.
It is contended that the right of way, together with the road-bed, buildings and superstructures erected thereon, is real estate, and included in the definition of “real estate,” as expressed in the first sentence of section 7503, General Statutes of 1901, which reads:
“That the terms ‘real property,’ ‘real estate,’ and ‘land,’ when used in this act, except as otherwise specifically provided, shall include not only the land itself, but all buildings, fixtures, improvements. , . .”
This clearly indicates that the 'legislature contemplated some exceptions to this general definition. This exception is found in the same section, under the definition “personal property,” where it is said:
“The term ‘personal property’ shall inpJude . . . all ‘property’ owned, leased, used, occupied or employed by any railway or telegraph company or corporation within this state, situate on the right of way . of any railway.”
The plaintiff’s property upon which this tax was levied falls exactly within this definition. It is, therefore, plain that its contention1 upon this point must be denied, if the legislature has the right to classify property for the purpose of taxation.
The power thus to classify property for the purpose of taxation appears to be generally conceded. In Cooley on Taxation, second edition, page 366, it is said:
“It is customary to classify property for taxation as real and personal, and to assess the two classes on somewhat different principles. The classification is commonly made on common-law distinctions, but this is not necessarily the case, and it will frequently be found that the enumeration of property in statutes as real or personal for the purposes of taxation differs considerably from what it would be for other purposes in the same state.”
In Desty on Taxation, volume 1, page 96, it is said :
“The legislature may classify the subjects of taxation. The division of property into real, personal and mixed is a mere arbitrary division, which the legislature may or may not regard in the imposition of taxes. ... The legislature may make any kind of property personalty for the purposes of taxation, although it be real estate by. the common law, and for all other purposes.”
There are some other questions argued by plaintiff, but the principles contended for are included in what has already been said.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action to recover the price of intoxicating liquors. We prefer to solve the various incidental and subordinate matters raised in the briefs by the discussion and determination of the two main questions, rather than by a discussion of these subordinate questions in detail, as we think a solution of the main questions will solve all the lesser ones.
Plaintiffs were wholesale liquor dealers doing business in Kansas City, Mo. Defendants were druggists doing business in Elgin, Kan. It is not shown that they had authority under the laws of Kansas to sell intoxicating liquors, but we shall assume that they had. Plaintiffs’ sales agent went to the defendants’’ place of business in Elgin, exhibited samples of liquor, and solicited an order therefor. Defendants, haying examined the samples, decided to order a barrel of a certain brand of whisky at the price of $1.85 per gallon, receiving the warranty of the agent that it should be of the quality, as to age and test, of the sample exhibited by him, subject to examination and approval by the defendants upon its arrival at their place of business. No limitation of the authority of the agent in respect to the matter of warranty or place of sale was communicated to the defendants. Upon the arrival of the whisky it was found not to be of the age or the grade represented by the agent. Thereupon it was set aside to await,the return of the agent. The fact of the inferiority of the whisky was communicated to him when he next came to defendants’ place of business, and its inferiority admitted by'him.- It was thereupon agreed between the agent and defendants that if they would keep the whisky, notwithstanding its failure to come up to the warranty, a deduction of ten cents per gallon in its price and a further extension of the time of payment would be made them. Upon these terms the bargain was closed and defendants retained the whisky. At this time they gave the agent a further order for two cases of rye whisky, which was shipped them. Upon a subsequent return of the agent the price of this 1-ast order was paid to him in cash. This money never reached plaintiffs. Plaintiffs were de feated in their claim for recovery upon the ground that the sale of the barrel of whisky was a Kansas contract, and, as such, against the Kansas law, and therefore the price could not be recovered. As to the two cases of rye whisky, the price having been paid todhe agent, such payment was held a discharge of defendants’ liability, although the money was not actually received by the plaintiffs.
The first question then is, Was the sale of the barrel of whisky a Kansas or Missouri contract ? We shall assume that plaintiffs gave their agent authority only to take orders for the sale of liquors subject to their approval in Kansas City, Mo. We shall further assume that, had the whisky come up to the terms of the warranty made by the agent, this sale to the defendants would have been a Missouri contract, although we do not by this assumption so decide. We think, however, that it must be conceded that when plaintiffs sent out their agent with samples of their goods to solicit orders for the same they clothed him with apparent authority at least to make warranty of the character and quality of the liquors to be sold 'by him ; for, if such was not the implication, why should they put into his possession samples to be exhibited to contemplating purchasers. This being so, clearly when the defendants ascertained that the whisky for which they had given their order, and which had been shipped to them, was not up to the standard warranted, they had a right to decline to receive it and become the debtor of the plaintiffs therefor. Having done so, the whisky remained the property of the plaintiffs in the store of the defendants at Elgin. This being the condition when the agent returned, he was in the situation of a saleman in the possession of his principal’s property, offering for sale the same at. a stated price. The price being then and there agreed to between the parties, the sale was then and there consummated; hence, was a Kansas sale. This would be so regardless of any uncommunicated instructions which the principal had given to the agent. All of the facts in the case clearly tended to warrant defendants in believing that the agent had full authority to represent the plaintiffs and make sales of their goods. This court, in the case of Banks Bros. v. Everest & Waggener, 35 Kan. 687, 12 Pac. 141, said:
“A principal is bound for the acts of his agent done within the scope of his authority, and the principal will also be responsible for the unauthorized acts of the agent where the conduct of the principal justifies a party dealing with the agent in believing that such agent was acting within and not in excess of the authority conferred on him.”
In Keith v. Herschberg Optical Co., 48 Ark. 138, 2 S. W. 777, quoting a large number of authorities, it was said:
“A traveling salesman of a wholesale house may be regarded by those who deal with him as a general agent, and his acts within the scope of his business will bind his principals, although in violation of their printed instructions to him, unless the parties dealing with him have notice of the limitations upon his authority.”
It can hardly be contended in this case that the agent of the plaintiffs was not invested with apparent authority to make the contracts which he did. Aside from having their samples in his possession, which of itself gave him apparent authority to make a warranty of the quality of the goods sold in accordance with those samples, they had filled the order given by defendants to him. We are quite clear that, so far as the barrel of whisky is concerned, the sale was made in Kansas. There was no showing or claim made by the plaintiffs that they had a permit to sell intoxicating liquors in Kansas ; hence, such sale was against the law, and plaintiffs could not recover therefor.
Now as to the sufficiency of the payment shown. It is well settled by the authorities in this state, as well as elsewhere, that an agent possessing the authority to sell goods is not thereby invested with authority to collect the price thereof. (Kane v. Barstow, 42 Kan. 465, 22 Pac. 588.) Hence, in this case, it having been shown that the selling agent had no actual authority to collect the money paid to him, and it never having actually been received by the plaintiffs, such payment to the agent was ineffectual to discharge the defendants from their liability for the two cases of rye whisky purchased by them. Inasmuch as the evidence of this payment was permitted to go to the jury, we think the court erred therein. The judgment of the court below must be reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The appellant, with three others, was informed against for maintaining a nuisance under the prohibitory law. The appellant was separately tried, convicted, and sentenced,from which he appeals. The charging part of the information reads :
“That in a certain building in the city of Plevna, in said county and state, on lots numbers seventy-nine (79), eighty-one (81), and eighty-three (83), on South Main street, in said city of Plevna, in a certain building known as a livery barn and in a certain one-story building situated on said lots, known as the barber shop, are both places where intoxicating liquors are unlawfully sold, bartered, and given away by the said defendants, R. W. Wester, Emert Beauca'mp, John Hoffner, and George Callahan, and that both the said places above described, situated on said lots 79, 81, and 83, South Main street, in said city of Plevna, as aforesaid, are places where people resort, -and are permitted to resort, by^the said defendants and each of them for the purpose of drinking intoxicating liquor as a beverage, and where intoxicating liquors are unlawfully kept by the said R. W. Wester, Emert Beaucamp, John Hoffner and George Callahan for unlawful sale, gift, barter and delivery and are sold by said defendants, to the common nuisance of the people of the state of Kansas. . . .”
The defendant filed a motion to quash this information because there were two separate and distinct offenses charged in the same count. The motion was overruled, and after the jury returned their verdict of guilty the defendant moved in arrest of judgment for the same reason, which motion was overruled. He then filed his motion for a new trial, and upon argument this motion was also overruled and he was sentenced. The only errors complained of are the overruling of these motions, which have their.foundation in the insufficiency of the information.
There were two separate buildings upon the lots described in this information, one a barber shop and the other a livery barn. The information charged that the parties informed against were guilty of maintain ing a nuisance in each of said buildings. These were separate and distinct offenses. The evidence which would prove the maintenance of a nuisance in one would not necessarily prove the maintenance of a nuisance in the other. If the jury should find the defendant guilty as charged in the information, it would be the duty of the court to impose a sentence for both offenses. That the offenses charged are such as might have been charged in different counts of the same information cannot be denied, but can they both be charged in one count?. We know of no precedent. Where a statute provides that an offense may be committed in several different ways, one may be charged with the commission of such offense in any one of such ways, or he may be charged conjunctively, in the same count, with having committed the offense in all of the ways enumerated in the statute. This, however, would only be charging one offense. The statute under consideration furnishes an illustration. Section 2463, General Statutes of 1901, provides :
' “All places where intoxicating liquors are manufactured, sold, bartered, or given away in violation of any of the provisions of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery, in violation of this act, are hereby declared to be common nuisances.”
It is a violation of this act to keep a place where intoxicating liquors are sold, bartered, or given away. It is also a violation to keep a place where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage. Notwithstanding the commission of either of these acts would be a violation of the law, they may be joined conjunctively in one count, thus constituting one offense and subject ing the defendant to one punishment. The allegations of the information under consideration are that “on South Main street in said city of Plevna, in a certain building known as a livery barn and in a certain one-story building situated on said lots, known as the barber shop, are both places where intoxicating liquors are unlawfully sold.” Two separate and distinct offenses cannot be charged in the same count.
The jury returned a verdict of guilty as charged in the information. Upon this verdict it was the duty of the court, under the above section, besides imposing a fine and sentence, to direct the sheriff to abate- and shut up both places by taking possession thereof, and by taken possession of all intoxicating liquors found therein.
The motion to quash should have been sustained. For this reason the judgment of the court below is reversed, and the cause remanded with instructions to set aside the verdictfand judgment and sustain the appellant’s motion to quash the information. ■
All the Justices concurring. | [
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The opinion of the. court was delivered by
Cunningham, J. :
The A. J. Harwi Hardware Company had judgment against Conrad Klippert. A summons in garnishment was issued to Henry Reh, who answered that he was at the time of the service of the summons indebted, or under liability, to the defendant, Conrad Klippert, in the sum of $560 ; that • the same was evidenced by four promissory notes to come due at stated times thereafter. He did not state in his answbr whether or not the notes were negotiable. Upon this answer judgment was rendered directing that Reh pay into court the amounts due on these notes as the same should mature, such payments to be applied on the judgment against Klippert. More than one year thereafter Reh filed his motion asking that the judgment against him be set aside for the following reasons:
“1. At time of garnishment said notes were the property of, and held by the Bank of Horton, a state bank at Horton, Kansas, as collateral security for a debt owing by defendant to said bank of Horton which was not known by the garnishee at time of answer; that said notes are still so held.
“2. That said notes executed by garnishee to defendant were and are negotiable promissory notes.
“3. That answer of garnishee did not authorize or empower the rendition of the judgment and order against him.”
Upon the hearing of that motion it was made to appear that the notes executed by Reh to Klippert were negotiable, and had been negotiated before Reh was 'garnished. The court set aside its former judgment that Reh was liable as garnishee and discharged him'. It is from this order, and to reverse the same, that the hardware company now prosecutes this proceeding.
We must first inquire as to the nature of the judgment rendered in the garnishment proceedings against •the garnishee under the provisions of our statute as •they now exist. We find first that the attaching creditor is required to file his affidavit. This forms the basis of his claim against the garnishee. Thereupon summons is issued which brings the garnishee into court, and, being in court, he is called upon to answer under oath concerning his relationship to the principal debtor. If this answer denies liability, the answering garnishee goes free unless issue is taken upon such answer. Unless the garnishee makes general denial of liablity he must file an affidavit showing the facts of his indebtedness to the defendant, or the possession of any of his property, effects, or credits of any kind which he may have in his hands. He is required to set up all facts and circumstances which may throw light upon these questions. If the judgment-creditor takes issue upon the answer of the garnishee, then the issues stand for trial as any other civil action, in which plaintiff’s affidavit is deemed a petition, and the garnishee’s affidavit the answer thereto. Section 200j of the code of civil procedure (Gen. Stat. 1901, § 4644) provides as follows :
“The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the provisions for enforcing judgments shall be applicable thereto ; . . . The court shall render such judgment in all cases as shall be just to all the parties, and properly protect their respective interests. The judgment against a garnishee shall acquit and discharge him from all demands by the defendant or his representatives for all money, goods, effects or credits paid, delivered or accounted for by the garnishee by force of such judgment.”
It would seem clear that it was intended by the legislature that the judgment rendered by the court in these proceedings should be something more than a simple .order putting the judgment creditor in the shoes of the judgment debtor as respects the garnishee, as was the case under the former law. The conclusion of the court arising upon issues joined and out of a trial had is a judgment; it is rendered in an action. This judgment is to be enforced as are other judgments, and is one which relieves the garnishee from the demands of the principal defendant upon him ; in short, it is a judgment rendered in a civil action. It is as much of a judgment against the garnishee as though rendered in any other civil action. He, to all intents, 'becomes a judgment'debtor. That being the character of the judgment, it follows that it can only be set aside in the court rendering it, under the provisions of section 568 of the code of civil procedure (Gen. Stat. 1901, §5054). It will not require a deJ tailed examination of the provisions of this section to warrant the assertion that in it is nowhere found authority for the setting aside of this judgment at the time it was done or by the means used.
It is suggested that this is a void judgment and may be set aside at any time under the authority of the last clause of section 575 of the code of civil procedure (Gen. Stat. 1901, § 5061), which is: “A void judgment may be vacated at any time, on motion of a. party or any person affected thereby.” It is here contended that this judgment against Reh was void, because as his answer showed only that he was indebted to Klippert upon promissory notes, without showing' that they were non-qegotiable, not enough facts appeared therein to warrant or sustain a judgment.' It is true, the garnishment act provides that the garnishee shall not be held upon any negotiable bill, draft or note, and had Reh in his answer made it appear that the liability arose upon such an instrument the court would not have rendered the judgment it did. But the statute imposes the obligation upon the garnishee to disclose all of the facts and circumstances necessary to a complete understanding of his indebtedness or liability. The parties and the court had a right to assume that he had done so. The facts were within his knowledge necessarily ; or, if not, he should have so disclosed. As he did not disclose the fact that the promissory notes on which he was indebted were negotiable, and thus bring himself within the protection of the statute, the court was not bound to inquire further, but had authority to render judgment upon the liability as disclosed by the answer. The duty rested upon him to furnish the reasons for his discharge, when once he admitted liability, and not upon the judgment creditor to show that the liability was such as would entitle him to such judgment (Gatchell & Co. v. Foster, 94 Ala. 622,) at least, we may not say that the judgment was void because of the omission to show the fact of the negotiability of the notes. It therefore could not be set aside as such.
It appears that subsequently to the rendition of the garnishment judgment against Reh the Bank of Hor ton, which held his notes as collateral to the note of Conrad IClippert, brought suit against Klippert and Reh, making the hardware company a party defendant. In that action judgment was rendered by consent of the hardware company disposing of the last Reh note otherwise than as directed by the judgment in its favor, and it is now claimed that by such consent the hardware company has lost its right to enforce its judgment against Reh. We are inclined to think this claim is correct so far as this note is concerned, but its judgment would be disturbed only to that extent.
The judgment of the district court upon the motion of the defendant Reh to set aside the garnishee judgment against him will be reversed as to the three notes not involved in the last-mentioned order of the court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover on a contract for the sale of land and to declare the same an equitable lien thereon and to foreclose the lien. On November 6, 1886, W. B. Beebe, of Ohio, who was the owner of several tracts of land in Kansas, sold to A. Jacobitz a tract of sixteen acres for $1970, payable in six equal annual instalments. In the contract Beebe covenanted that when full payment was made he would convey to Jacobitz by a good and sufficient deed an indefeasible estate in fee-simple to the land, warranting the same free, clear, discharged and unencumbered of and from all former grants, titles, charges, estates, judgments, taxes, assessments and encumbrances of whatsoever nature or kind. The contract also provided that if Jacobitz should make default in payment or in fulfilling any part of the agreement it was to be forfeited,-aPthe option'of Beebe, who would have the right to take possession of the land, and Jacobitz would then forfeit all payments made. Jacobitz went into possession of the land at once, and continued to pay interest on the debt until November 6, 1894, amounting to $1260.80.
In April, 1894, Beebe died, testate, and his son, Stewart J. Beebe, and his daughter, Nettie B. Morris, were appointed executors of his will. The daughter died soon afterward, and Stewart J. continued as sole executor until he was succeeded by a son of Nettie B. Morris. In October, 1895, Jacobitz undertook to rescind the contract and to surrender all rights thereunder to the executors of the estate, who declined at first to release him from his obligation, but later they took possession of the land and collected rents therefrom until the commencement of this action, in 1898. W. H. Evans, the administrator, who brought this action, applied to the probate court of Marion county and obtained an order to sell the real estate in question, as well as other property, for the purpose of paying the debts of the estate. At no time prior to the commencement of the action did the representatives of the estate tender back to Jacobitz the possession of the premises or offer to account to him for the rents of the same, nor did any of them ever demand from Jacobitz the money remaining unpaid on the contract, or tender to him a deed to the premises, or any performance of the contract upon their part. It appears that several judgments wem rendered against W. B. Beebe in his lifetime which had never been satisfied or discharged of record, and a number of judgments, amounting to a- large sum, .were rendered against S. J. Beebe, one of the heirs and an executor of the estate, which are wholly unpaid and unsatisfied. The trial court held that the contract sued on had been forfeited and rescinded before the commencement of the action; that no tender of conveyance having been made by the plaintiff prior to the beginning of the action it could not be maintained, and that the deed tendered after the action had been brought was not free and clear of encumbrances, as required by the terms of the contract.
There are several sufficient reasons why the judgment of the court should be affirmed. In the first place, the contract, as the trial court found, had been rescinded. There may have been no express declaration of rescission by Beebe or by those representing his estate, but there need not be in all cases an express rescission ; the same may be implied from the dealings and conduct of the parties. Here Jacobitz was in default and had notified the executors that he desired to surrender and cancel the contract and to relinquish any rights thereunder. While they did not then accept the surrender and relinquishment they did treat the contract thereafter as having been annulled. They did accept from Jacobitz and retain the rents for this land which accrued after the proposed rescission, and they farther took and held possession of. the land and collected the rents for the estate from that time until the commencement of the action. They have never offered to return the possession nor to account to him for the rents which they have collected. This conduct, coupled with the fact that they did not for a period of nearly three years thereafter ask payment of the money remaining unpaid upon the contract, nor take any steps toward its enforcement, gives rise to an implication of rescission by mutual consent, and is abundantly sufficient to sustain the finding of the court that there had been a rescission.
It appears to have been the view of the representatives of the estate, as well as the probate court, that there-had been a renunciation of rights by Jacobitz and a rescission of the contract by the representatives of the estate. A petition was filed in the probate court for an order to sell this property, and a decree was entered directing that it be sold and the proceeds applied to the payment of the debts of the estate.
An additional reason for upholding the judgment, if more were .needed, is the fact that no tender of a deed such as was contracted for was made before the commencement of the action., Although there is some diversity of judicial opinion as to the necessity of a tender.it is well settled in this state that-a party cannot justly summon another into court in such case and impose the cost and annoyance of a suit until he has tendered performance on his own part; that he cannot maintain the action without alleging and proving that he has performed his own obligation by making and tendering a deed of conveyance. (Iles v. Elledge, 18 Kan. 296; Close v. Dunn, 24 id. 372; Morrison v. Terrell, 27 id. 326, and Soper v. Gabe, 55 id. 646, 41 Pac. 969.)
The conclusions that have been reached make it unnecessary to refer to the other questions,discussed by counsel, and, for the reasons stated, the judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Elmore & Cooper sued Ott Brothers on a promissory note. Defendants answered, setting out that the note was given for a balance erroneously supposed to be due upon settlement of an account, the fact being that no balance was owing to plaintiffs. Plaintiffs replied with a general denial. Defendants then filed an amended answer, of which the first answer was made a part by reference, the new matter (designated as a third defense) consisting of allegations that plaintiffs were members of an' illegal trade combination, and that the note was given under such circumstances that the anti-trust laws of Kansas forbade a recovery upon it. Plaintiffs moved to strike this third defense from the amended answer and the motion was sustained. The defendants then took leave to amend further, and within the time given filed an amendment to the amended answer, adopting by reference the allegations of pages 1 to 5, inclusive, of the amended answer. It does not appear what portion of the amended answer was intended to be covered by this description. The copy of the amended answer set out in the record consists of eight pages, and the end of the fifth page does not appear to mark a natural division point, nor is there anything to suggest a correspondence between the paging of the record and that of the original pleading. Plaintiff filed a reply, which is entitled “Second reply to amended an swer.” These are all the pleadings shown by the record (a case-made); but there is no' statement that it contains all the pleadings. The case being called for trial, defendants withdrew the second defense set out in their original answer. A jury was impaneled and defendants made a statement of their case to'the jury. V/hat this statement was is not shown. Plaintiffs then filed a motion for judgment on the pleadings and the statement of counsel for defendants. The court “sustained said motion of plaintiffs for judgment on the pleadings, and found for said plaintiffs and against said defendants on the pleadings.”
Upon this record, the defendants as plaintiffs in error ask this court to determine the effect of the various antitrust statutes of the state upon plaintiffs’ rights to recover. Plaintiffs as defendants in error ask that the proceedings be dismissed because the record omits the opening statement of counsel and fails to show affirmatively that it contains all of the pleadings. We shall assume, without deciding, that it sufficiently appears that the judgment was rendered upon the pleadings irrespective of the opening statement, and shall consider only the effect of the failure of the record to state that it includes all of the pleadings. It may well be that where a record shows an orderly course of pleading, as, for instance, a petition, answer, and reply, followed by a motion for a judgment on the pleadings, a reviewing court should presume that the pleadings referred to in the motion and considered by the trial court are those set out in the record, and no other. But such presumption is obviously weakened by any departure from regularity, by any apparent incompleteness or confusion, or by anything that tends to suggest that there may -have been pleadings or amendments that are not shown. In the present case, the involved state of the pleadings and the uncertainty as to their condition when finally submitted to the court prevent a presumption that the record includes all of the pleadings and amendments, in the absence of a statement to that effect.
The decision striking matter from the amended answer cannot be reviewed for the reason that the error, if any, was waived by the defendants’ taking leave to file, and filing, a further amendment. (Garanflo v. Cooley, 38 Kan. 137, 5 Pac. 766.)
. The petition in error will be dismissed. | [
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The opinion of tlie court was delivered by
Pollock, J.:
This action was brought by I. L. Kent, administrator of the estate of Elizabeth O. Grimshaw, deceased, a,gainst Howard L. Grimshaw and Olive A. Grimshaw, his wife, son and daughter-in-law of Elizabeth O. Grimshaw, to recover the sum of $1950, alleged to be money of the estate in the hands of defendants. As shown by the record, defendants lived at Winslow, Ariz. Deceased had placed this money in their hands to invest for her, higher rates of interest being obtainable in Arizona than at the home of deceased in Kansas. In November, 1901, the following contract was executed by the parties:
“This agreement, made and executed and entered into this 3d day of May, A. d. 1901, by and between H. L. Grimshaw and Olive A. Grimshaw, his wife, of the town of Winslow, Navajo county, territory of Arizona, the parties of the first'part, and Elizabeth C. Grimshaw, widow, of Paola, Miami county, state of Kansas, the "party of the second part:
“Witnesseth, That the parties of the first part, for and in consideration of the sum of nineteen hundred dollars, lawful money of the United States, to them in hand paid, the receipt whereof is hereby acknowledged and confessed, do hereby contract and agree that they (the parties of the first part), and each of them, jointly and severally, their heirs, executors, and administrators, shall and will pay, in lawful money of the United States, to the party of the second part, during her natural life, the sum of twenty dollars per month, payable each and every month at such place as the party of the second part may be located.
“It is hereby expressly understood and agreed that this is a contract wherein the parties of the first part bind themselves, their heirs, executors, and administrators, to pay to said party of the second part an annuity in the sum of two hundred and forty dollars per annum, payable monthly in instalments of twenty dollars for each and every calendar month during the life of the beneficiary, the said party of the second part.
“In the event of the failure of the said parties of the first part to faithfully carry out the conditions above set out and for a period of two months, then and in that event the parties of the first part contract and agree that the full sum of $1900 shall, at the option of the party of the second part, become immediately' due and payable to the said second party, and the said sum of $1900 is hereby stipulated and agreed to between the parties hereto as fixed, settled and liquidated damages for such default, and proceedings may immediately be had by the said second party against said parties of the first part, their heirs, 'executors, or administrators, for the recovery of said sum.
“In Witness Whereof, We have hereunto set our hands and seals, the day and year above written.
Mrs. E. C. Grimshaw. (seal.)
H. L. Grimshaw. (seal.)
Olive A. Grimshaw. (seal.)”
This contract and compliance with its terms were pleaded by defendants in answer to the action brought against them. In reply, plaintiff put in issue the making of the contract. He. specially pleaded the mental incapacity of deceased to enter into such contract ; that defendants procured the possession of the funds and the execution of the contract by fraud and undue influence, and non-compliance by defendants with the terms of the contract. At the trial there were verdict and judgment for plaintiff. Defendants bring error.
The only questions of merit arising on this record relate to the rejection of testimony by defendant in the form of depositions. In response to the issue raised as to the mental capacity of deceased at the time of the execution of the contract, after proof of the execution of the contract by deceased had been made, and after it had been shown by defendants that deceased had lived for some time prior to the execution of the contract at the home of defendants, defendant Olive Grimshaw was asked : “What can you say from your association with her, your observation of her conduct., . . . and your conversation with her, as to her mental condition?” To this question an objection was interposed and the answer thereto excluded. Defendant Howard Grimshaw was asked : “During the time of your mother’s last visit, what can you say as to her mental condition, from your association with her, your conversation with her, and her actions and conduct?” The answer to this question was also excluded from the jury. In view of the issue raised by the pleadings, this evidence was material.
An attempt is made to justify the ruling under that provision of the code which renders defendants incompetent to testify as to any transaction or conversation had personally with the deceased. We do not think this position tenable. These questions were not propounded for the purpose of placing before the jury any transaction with, or conversation of, the deceased, but for the p rpose of apprising the jury of the mental condition of deceased at and before the execution of the contract. Nor was the ruling justified upon the theory that defendants were non-experts, and hence incompetent to express an opinion as to the mental condition of deceased. The deceased had lived in the home of defendants prior to the execution of the contract; they had thus been thrown in constant close and intimate relations with her, and had an opportunity to form, and were competent to express, an opinion as to her mental condition. (Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; City of Parsons v. Lindsay, 26 id. 426 ; The State v. Beuerman, 59 id. 586, 53 Pac. 874; Connecticut Mid. Life Ins. Co. v. Lathrop, 111 U. S. 612, 28 L. Ed. 536.) The exclusion of this evidence was error.
Again, for the purpose of showing that deceased knew and understood the contents of the written contract at the time it was executed by her, the witness W. H. Burbage, who prepared the contract, was asked : “Will you state what conversation, if any, occurred between yourself and Mrs, Elizabeth C. Grimshaw leading up to the execution of this contract?” The answer of the witness to this question was also excluded. It is contended that as the witness was a lawyer the conversation requested was privileged. We think not. Here no relation of attorney and client existed. Any person at all familiar with business transactions could have performed the labor of drafting the contract in question as readily as the witness. As the purpose of the question was to place before the jury the mental capacity of deceased to know and understand the contract she was entering into with defendants, and as the question propounded was not for the purpose of varying or contradicting the terms of a written contract, the witness should have been allowed to answer the question.
Other assignments of error are made, but from an examination of the record we deem them unimportant. On account of the errors mentioned, the judgment must be reversed and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action on a judgment originally rendered in favor of one John P. Erdhouse against John A. Poll and others, in the court of common pleas of Hamilton county, Ohio, and appealed by the latter to the circuit court, where judgment was again rendered against him. The journal entry of the circuit court recites—
•“that the defendant, John A. Poll, pay the sum of seventy-five hundred dollars ($7500), . . . for which he is found liable to account herein, to the trustee hereafter appointed by the court of insolvency of Hamilton county, Ohio, to administer the trust herein found. And, on failure to so pay said trustee, within ten days from his appointment, then execution shall issue therefor upon said trustee’s filing his praecipe for such execution with the clerk of this court.”
Attached to the amended petition was a certificate of the judge and ex officio clerk of the court of insolvency, stating in general terms that W. A. Flicks was on March 28, 1898, appointed trustee of John P. Erdhouse for the benefit of the latter’s creditors; that he duly qualified and gave bond. Defendant below moved to strike this certificate from the petition. The motion was overruled. If this ruling was erroneous it was not prejudicial to defendant below, for the reason that the journal entry of Hicks’s appointment was afterward introduced on the trial, showing the proceedings in full.
The answer filed by Poll in the court below contained a verified denial of the right, power or authority of the plaintiff, W. A. Hicks, to maintain the action. It also' set forth that after the judgment had been rendered in the common pleas court Poll filed his appeal bond and perfected his appeal to the circuit court. It further-alleged that if any judgment was rendered in the circuit court it had been duly and legally appealed to the supreme court of the state of Ohio, where it was still pending; that the defendant below filed a supersedeas bond to stay proceedings in the circuit court, which was duly approved. These allegations respecting the stay of proceedings in the circuit court were stricken from the answer as irrelevant and redundant matter, on motion of plaintiff below. We think there was no error in this. The Ohio statutes were not in troduced in evidence. We can only presume that they are like our own. (K. P. Rly. Co. v. Cutter, 16 Kan. 568 ; Rogers v. Coates, 38 id. 232, 16 Pac. 463 ; Railroad Co. v. Johnson, 61 id. 417, 59 Pac. 1063.) Under our practice a supersedeas bond given in proceedings in error serves the purpose of staying the execution of the judgment only. (McDonald v. Symns, 64 Kan. 529, 67 Pac. 1111; Heizer v. Pawsey, 47 id. 33, 27 Pac. 125 ; C. B. U. P. Rld. Co. v. Andrews, Adm’r, 34 id. 563, 9 Pac. 213.) A stay of execution is no obstacle in the way of another action on the judgment. (Gaumer v. Terrel, 65 Kan. 15, 68 Pac. 1071; Willard v. Ostrander, 51 id. 481, 32 Pac. 1092, 37 Am. St. Rep. 294. See, also, 11 Encyc. of Pl. & Pr. 1104, 1105, and cases cited).
The discussion of the contention by counsel for plaintiff in error that the cause of action was merged in the judgment is foreign to the matter in hand. This was not an action here on the subject-matter litigated to judgment in Ohio, but a direct action on the judgment itself.
It is contended that the court of insolvency not being a tribunal provided for in the Ohio constitution, and its jurisdiction not having been shown by the statutes of that state, there was no evidence of the right of Hicks, the trustee, to sue on the judgment. It must be kept in mind that the Ohio judgment was rendered in one of the circuit courts, a constitutional court, and, as we will presume, a court of general jurisdiction. (Dodge v. Coffin, 15 Kan. 277.) It is probable that, in the absence of a constitutional enactment in Ohio vesting judicial power in the circuit court, we would presume it to be a tribunal of general jurisdiction. (13 A. & E. Encycl. of L., 2d ed., 997.) We know that there was formerly a circuit court of general jurisdiction in this state. (Laws 1891, ch. 83.) The same may be said of common pleas courts, .one of which is now in existence. (Laws 1891, ch. 92 ') Another was in existence for several years. (Laws 1889, ch. 117.)
For ,the purpose of this case we regard the trustee designated by the court of insolvency as a functionary of the circuit court. His appointment was ordered in the very judgment which is the basis of this action, and the appointment was incidental merely to the judgment for the purpose of its enforcement. ¿The judgment was not rendered in the insolvency court. That court moved only in the manner directed, and was but an instrument employed by the circuit court to give effect to a judgment of the latter. A receiver appointed by the circuit court would, as a matter of comity, have been allowed to maintain an action in the courts of this state. (Winans v. Manufacturing Co., 48 Kan. 777, 30 Pac. 163.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from a judgment denying a motion for a change in the custody of a child which previously had been awarded to the father and to permit the mother to remove the child to her new home in the state of Idaho.
A brief introductory statement of events in chronological order, may be helpful. The appellant, Mary Agnes Hanson, formerly Mary Agnes Bierce, and the appellee, Donald F. Bierce, were married in Pennsylvania in 1946; appellee is now twenty-four years of age and appellant is twenty-one; in the latter part of 1946 tihey moved to Dodge City and lived with appellee’s parents; the son, Donald F. Bierce, Jr., over which appellant seeks the custody, was born in June, 1947; in the fall of 1947 appellee filed an action for divorce against appellant in the district court of Ford county, which is the same court that heard the instant motion for change of custody; appellant filed an answer in the divorce action and asked for custody of the child; a divorce was granted to appellee on December 13, 1947, and custody of the child was awarded to him; although the journal entry of judgment in the divorce case recites both plaintiff and defendant introduced their evidence it is here conceded that, for reasons not indicated, appellant did not appear at the hearing of the divorce action but was represented by counsel; it appears her counsel did not know of her whereabouts; we are not advised concerning the ground, or grounds, on which the divorce was granted and are not supplied with a record or the substance of the evidence adduced in support thereof; the court awarded the wife alimony in the sum of $300 payable at the rate of $12.50 per month until paid; she was also granted the privilege of visitation at reasonable times; the privilege was not exercised until a few days before the instant hearing in November, 1950.
Within a month and a half after the divorce was granted to appellee the appellant married a man by the name of Hanson in Kansas City; appellant and her new husband lived in Nebraska about six months and then moved to Sagle, Idaho, and bought a property containing seventy acres of land; appellant and her present husband are the parents of a boy who was thirteen months’ old November 12, 1950; appellant stated that at the time of the divorce she was in poor health as a result of the Caesarean birth of the child and was financially unable to support the child; appellant had her mother carry on a correspondence with the child’s paternal grandmother and had caused her mother to send gifts to the child on occasions; the frequency of the gifts or the nature thereof is not disclosed; approximately a year or a year and a half prior to the hearing of the instant motion appellant consulted her attorney at Dodge City about trying to obtain custody of the child and expressed her desire to visit the child but her attorney advised against it; no motion for a change of custody was filed; the reason, or reasons, for the advice of her attorney are not disclosed.
On November 18, 1949, appellee’s mother filed a motion in the district court to obtain a transfer to her of the sum of $62.50 to be used for the support and maintenance of the child; that amount had been deposited by appellee with the clerk of the district court to the credit of appellant as payment on the alimony award; the court found an unsuccessful Federal Bureau of Investigation search for appellant had been made and her whereabouts was unknown; that the money so deposited had remained unclaimed for over two years; that appellee had placed the care of the child in his mother and that the money should be paid to his mother for the care, maintenance and education of the minor son.
In November, 1949, appellee’s parents filed a petition in the probate court of Ford county for the adoption of the child; appellee filed his written consent to such adoption; appellant contested the adoption and the petition was denied; a few days thereafter she filed the instant motion for change of custody which was denied.
Other testimony by appellant was, in substance, as follows:
Appellant’s present husband is employed as a journeyman line man for an electric company and earns between $200 and $300 a month; he also deals in timber; he is forty-eight years of age and in perfect health; he would welcome the child into his home; her husband is affectionate and kind in his dealings with their own child; the property in Idaho has a modern house and equipment; appellant’s husband invested about $5,000 in the Idaho property and owes about that same amount on it; he is indebted on his automobile but has no other debts; a modern country school is located about four or five miles from their home; there is school bus service passing them home; appellant belongs to and is a regular attendant of a Catholic church; it is her intention that her son should receive religious training if she is awarded the custody; appellant has a slight heart ailment but it does not impair the performance of her duties as a housewife and mother.
Appellant called appellee as her witness. His testimony, in substance, was: He admitted he consented to the adoption but denied he had abandoned the child; the child had been under the immediate care of his parents who live near Dodge City with whom appellee now also lives; there are no other children in that home but there are children in the neighborhood; after the divorce appellee was married to another woman, with whom he lived about eighteen months in Hutchinson; during that time the son was with him and his wife occasionally during week ends; while in Dodge City he lived in the home of his parents about six months and also had a trailer house parked in the yard of his parents; the child lived in the trailer house with him and in the house with appellee’s mother about equal portions of the time; appellee’s mother has taken care of the child since he was divorced from appellant; whenever he was at home he helped care for the child with respect to anything that needed to be done; he helped discipline the child and paid his mother for its support to the extent of about $10.00 a week; that if the custody was not changed the child would continue to reside with his parents and he and his parents would continue to care for him.
Appellant contends (1) the evidence disclosed appellee had abandoned the child; and (2) the court abused its judicial discretion in not sustaining her motion for a change of custody.
Touching the first contention appellant emphasizes the fact appellee placed the child into the actual care of his parents instead of caring for the child himself. It is true the child was for a time left in the immediate care of appellee’s parents. The reason was appellee was at that time working elsewhere to earn a living. That fact alone, however, did not establish abandonment. Nor did it in itself constitute a ground for a change of custody from the father to the mother. See Dodd v. Dodd, 171 Kan. 46, 48-49, 229 P. 2d 761, in which this precise subject was ably treated.
It is not contended the child was not well treated and cared for in the home of the paternal grandparents. In fact the trial court expressly found the contrary to be true. It stated: “. . . at its age it has got along mighty well with its grandparents here.” Appellant refers to a portion of the petition which appellee’s parents filed in the probate court for the adoption of the child. She stresses the fact appellee consented to such adoption and emphasizes the allegation in the petition that appellee had abandoned the child. This, of course, was not appellee’s allegation. Frederick L. Hall, counsel for such petitioners, informed the district court he employed the word “abandoned” by mistake and intended to allege “consent” of appellee to the adoption. The petition for adoption, as previously stated, had been denied and the district court stated it preferred to hear appellee’s own testimony on the subject of abandonment. Touching that subject appellee testified concerning his support of the child and the care thereof by himself and his parents as previously narrated. The trial court expressly found, the evidence was insufficient to require a change of custody. In addition thereto it made some further oral comments to which we shall refer later.
The statement of a few fundamental principles governing cases involving a change in custody may be helpful. A decree awarding custody of a child is not res judicata in the sense generally applicable to judgments. It is res judicata only with respect to the facts and circumstances existing at the time of the original decree. The custody may be modified or changed whenever circumstances render a modification or change of the former order proper. (White v. White, 160 Kan. 32, 159 P. 2d 461; G. S. 1949, 60-1510.) The burden of proving a change in custody should be made rests upon the person requesting the change. (White v. White, supra.) Whether a change in custody should be ordered rests in the sound judicial discretion of the trial court in view of all the facts and circumstances of the particular case. (Kogler v. Kogler, 163 Kan. 62, 179 P. 2d 940.) On appellate review the decision of the trier of the facts will not be disturbed absent a clear showing of abuse of sound judicial discretion. (Kogler v. Kogler, supra.) And this of necessity must be the rule. So in Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076, we said:
“The trial court had the additional and highly important advantage over this court, which we have so often been compelled to recognize and state, of seeing the parties, observing their demeanor, assessing their character, weighing their testimony and considering the best interests of the children under all the circumstances. We have only the cold narrative of printed facts before us. It alone cannot possibly adequately portray the whole picture as witnessed by an able and discerning trial judge, the trier of the facts.” (p. 448.)
There are too many intangible considerations and impressions, such as the spirit, the attitude, the disposition of the parties which eventually form a part of the trial court’s ultimate decision to permit appellate courts to reverse a trial court where the bare printed facts might support a judgment awarding the custody to either parent.
Appellant stresses the recognized rule that a mother, absent a finding of unfitness, ordinarily is entitled to the custody of a child of tender years. We adhere to that rule. This court frequently has been confronted with such cases. It is unnecessary to review our numerous decisions on the subject. In Travis v. Travis, 163 Kan. 54, 180 P. 2d 310, it was well said:
“Appellant, however, does direct our attention to other authorities, which she contends supports the proposition that where she has not been found to be unfit, the custody of a young child should be awarded to her. . We have examined these authorities, but no purpose will be served in analyzing each of them. It is correct to say that unless the mother is shown to be unfit, she may properly be awarded custody of her minor child. (19 C. J. 345; 17 Am. Jur. 517) but that premise does not necessarily result in a conclusion that an order giving custody to the father or providing for alternate periods of custody is erroneous.” (p. 58.)
Obviously the foregoing statement is sound doctrine and must be the rule. If the rule were otherwise a trial court would be deprived entirely of exercising any discretion with respect to the best interests of the child where a child or children of tender years are involved.
In the instant case we are not favored with a record or a summary of the testimony adduced at the hearing of the divorce action and for the custody of the child. Although it is not our purpose to unduly stress the absence of such evidence we cannot escape the fact such evidence together with appellant’s failure to appear at the trial, her unexplained failure to notify her attorney as to her whereabouts and her prompt marriage to another person before the six months’ period had expired were all proper facts to be considered with all other matters in determining the wisdom of a change in custody.
Of course, the fact appellant now has a home of her own and another child were proper considerations. But can we say those-changed facts were entirely controlling? We do not think so. Was the fact appellee consented to the adoption of the child by his parents conclusive evidence against him? For all that appears in the record before us such adoption by his parents ultimately might have resulted in highly important benefits to the child in addition to his present care. At least appellee may have so believed. The trial court may have known appellee’s parents intimately. It may have believed the child was extremely fortunate to be under their immediate care. Moreover, the father, appellee, was now also living in their home with the child.
At the conclusion of the hearing the trial court expressly stated appellant’s evidence was insufficient to require a change of custody. It is true, as appellant contends, that in addition to that statement the trial court in commenting orally also mentioned some specific facts which entered into its consideration, such as the fact that this child of tender years “has got along mighty well with its grandparents here”, and that appellant was remarried within less than two months after she was divorced by appellee, that her last husband was twenty-seven years her senior and that the child would be removed from the state if her motion was granted. We think these statements cannot fairly be interpreted as meaning they were the only facts the court considered.
Appellant criticizes the foregoing statements. We are especially reminded we have said the removal of children out of the state is secondary to their welfare. We have so held. (Coats v. Coats, 161 Kan. 307, 167 P. 2d 290.) Of course, that fact is secondary to the welfare of a child. Most single facts are secondary to a child’s welfare. Clearly all the statement in the Coats case means is that if the welfare of a child is best served by placing its custody with someone outside the state then his mere removal from the state is secondary and does not in itself preclude granting custody to someone outside the state. Manifestly, however, it does not follow that the child’s removal a short or long distance from those whom he has learned to love and in whom his affections have become centered and by whom he is being well cared for may not constitute a factor to be considered with others in determining whether there should be a change of custody. We think the various matters specifically mentioned by the court were properly considered together with other facts in determining the best interests of the child.
It is true the court stated neither of the parents was unfit to have the custody of the child. The sole question that remained was therefore the best interests of the child in view of all the facts and circumstances of this particular case. The court found the facts were insufficient to warrant a change of custody. It must be remembered this court does not reverse an order of this character merely because it may entertain some doubt concerning the wisdom of the order. In the recent case of Dodd v. Dodd, 171 Kan. 46, 229 P. 2d 761, we definitely reiterated the well established principle governing cases pertaining to a change in custody and stated:
“Whether a child custody order will be changed or modified rests in the sound judical discretion of the trial court and its action with respect thereto will not be disturbed on appellate review unless the record makes it clearly appear that discretion has been abused.” (Syl.)
We think from the record presented to us it does not clearly appear the court abused its sound judical discretion in denying the motion for a change of custody at this time.
The judgment is affirmed.
Harvey, C. J., concurs in the result.
Smith, J., not participating. | [
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Per Curiam:
There is an attempt to prosecute this proceeding in error upon a transcript. What is before us shows that there are other files which are not a part of the transcript, and the certificate of the clerk does not show that the papers attached are a true and correct transcript of the record in the case. Therefore, this court has no jurisdiction to examine the alleged errors.
' The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
M. C. Harvey, who resided near Wallula and owned a ranch near Pomona, sent the following telegraphic message by the Western .Union Telegraph Company to his foreman, C. W. Higgins :
“Dec. 3d, 1897.
“ G. W. Higgins, Pomona, Ks.:
“Order cars and ship three loads Monday night. See letter. M. C. Harvby.”
The message was written on a blank piece of paper and not on the ordinary telegraph blanks containing printed rules and limitations. The charge for sending the message from Wallula to Pomona was twenty-five cents and was paid by the sender. The telegram was transmitted to Pomona, and Higgins not being at that place it was placed in the postoffice, addressed to him. He was not at Pomona, but resided on the Harvey ranch two miles from Pomona. The message was not received by him for some time, and it is alleged that the failure to deliver it delayed the shipment of cattle to market about twenty-four hours, resulting in a loss and damage to Harvey for the recovery of which this action is brought.
Harvey alleged in his pleading that he had been engaged for a long time prior to the date of the message in feeding and shipping cattle from his ranch near the city of Pomona, and that the ranch had been Higgins’s usual place of residence for a long time prior to the time of sending the message. It was further alleged that it had been the custom of the telegraph company, for hire and pay, to receive 'messages from Harvey, at ‘Wallula, and transmit them to .Higgins on the ranch. It appears that the message was not delivered by Harvey himself, at Wallula, nor was any arrangement made by him nor any guaranty given of the expenses for delivering the message at any place beyond Pomona. In charging the jury the court, among other things, stated :
“Where the company accepts a message for delivery outside of its free-delivery limits, without demanding extra compensation for its delivery, it cannot avoid liability for delay in delivering the same because such extra compensation has not been paid, unless reasonable efforts be made to advise the sender of the failure to deliver under the circumstances.”
No instruction was given with respect to a custom - of the company to deliver messages 'beyond the limits of Pomona, and the testimony in the case hardly warranted the giving of such an instruction or the submission of that question to the jury. The trial resulted in a verdict and judgment in favor of Harvey, and the company is here insisting that the testimony did not warrant the submission of' the case to the jury on the theory upon which it was submitted, nor the verdict that was returned.
In the absence of a custom, understanding or agreement that the messages to Pomona should be delivered outside of Pomona, the extent of the contract of the company was the prompt transmission and delivery of the message received at that place. The telegram was addressed to Pomona and not to Harvey’s ranch, a place distinct and distant from Pomona. Ordinarily, the measure of the duty of the telegraph company in respect to delivery is a diligent effort to deliver a message to the place to which it is sent and within the free-delivery limits of the place, if such limits ex ist. Usually the failure to prepay or to arrange for delivery beyond the free-delivery limits will excuse non-delivery outside those limits. This case does not fall within the rules applicable to the delivery of telegrams within a city in which free-delivery limits are established. Pomona is a small city and has no such limits. There might have been room for the-application of the instruction given by the court if Higgins had lived outside the free-delivery limits, but inside a city to which the message was addressed. Cases may be readily found holding that a telegraph company will not be exonerated for the non-delivery of a message where the addressee resides beyond the free-delivery limits, but within the city, where the sender did not know that the addressee was outside the limits, and was not notified by the company that an extra payment would be required, nor when prepayment of an extra charge is made or tendered for a special delivery which the company did not make. As Higgins did not live within the city of Pomona, the rule of these cases does not apply and the instruction given by the court, attempting to apply such rule to this case, was necessarily misleading. It left the jury to infer that it was the duty of the company, in certain contingencies, to deliver the message sent to Higgins outside the place to which it was sent.
Our attention is called to Western Union Tel. Co. v. Hargrove, 14 Tex. Civ. App. 79, 36 S. W. 1077, where a telegraph company was held liable for failure to deliver a message which it had received to be delivered three miles beyond Smithfield. The company had no office at Smithfield and therefore did not deliver the message. In that case, however, the company accepted the message and undertook to deliver it. But, more than that, the sender paid the usual charge for the transmission of the message and the sum of $2.50 for special delivery of the same to the point three miles from Smithfield. There was a specific contract to deliver the message to the addressee at her residence in the country, and the decision went no further than to hold the telegraph company to a strict performance of that contract. In a later decision from the same state it was held that where a telegraph company received and contracted to deliver a message with reasonable diligence to the addressee at a certain town, and charges were not paid or guaranteed for delivering it elsewhere, the company was under no obligation to deliver the message at his home several miles from such town. (Western Union Tel. Co. v. Swearingen, 95 Tex. 420, 67 S. W. 767.)
It is unnecessary to consider the effect of a pre-payment or guaranty of the payment for special delivery, as in this case neither was made by Harvey.
As to the matter of a custom on the part of the company to deliver telegrams sent by Harvey to Pomona at the ranch, an effort was made to show by a witness that he had taken telegrams from the office and delivered them to Higgins at the Harvey ranch. He stated that he had taken telegrams to that place, but upon further inquiry it was developed that the telegrams he referred to were taken after the message in question was received. The. court, too, recognizing a lack of testimony to establish a custom, did not present that issue to the jury, and hence the question is not fairly before us for consideration.
For the error mentioned, however, the judgment must be reversed, and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Greene, J. :
Tbe parties to this litigation were stockholders in tbe Lone-star Plaster Company. The Farmers’ National Bank of Salina recovered a judgment against this corporation for $6835.22, upon which an execution was issued and returned nulla bona. The Salina National Bank also recovered a like judgment for $3127.08 upon which an execution was issued and returned nulla bona. Such proceedings were thereafter had in both cases against Mary E. L. Prescott as resulted in the issuance of executions against her as a stockholder for the balance remain ing due on sucbt judgments, which aggregated about $3800. She paid the balance of the judgments to protect her property from sale, and then brought this action against all the resident, solvent stockholders in the Lone-star Plaster Company for contribution, alleging that certain of the resident stockholders were insolvent and certain other stockholders were nonresidents of the state. She recovered judgment against each one of the solvent, resident stockholders for his proportionate share of the amount she had paid on said executions. From this judgment the defendants prosecute error.
It is claimed that the court erred in overruling the separate demurrers of the defendants to the plaintiff’s petition. The allegations of the petition were in many respects very meager and it seems' not to have been drawn with that fulness and exactness which the na-' ture of the proceeding demanded. However, it is not so entirely wanting in any of the particulars challenged as to be said that it was error to overrule the. demurrers.
The defendants each demanded a jury trial, which was refused, and this is claimed as error. It is strongly urged that this was an action for the recovery of money within the meaning of section 266 of the civil code (Gen. Stat. 1901, §4713), and therefore the parties were entitled to a trial by jury. It was more than an action for contribution; it was brought to determine the insolvency of certain of the stockholders; the non-residence of others, and to have the liabilities of the corporation which had been paid by the plaintiff equitably apportioned between herself and the solvent, resident stockholders, and for a separate judgment against each for his equitable proportion of such liabilities. There is no contractual relation between the stockholders of a corporation whereby they agree to contribute one to the other in case one has been compelled to pay more than his proportion of the liabilities of the corporation. Such actions are not on contract, but are in their nature equitable. In Wells v. Miller, 66 N. Y. 255, 258, the court said:
"The right to contribution between cosureties depends upon principles of equity rather than upon contract. It is well settled that the liability exists, although the sureties are ignorant of each other’s engagement. . . . The equity springs out of the proposition that, when two or more sureties stand in the same relation to a principal, they are entitled equally to all the benefits, and must bear equally all the burdens of the position. In such a case the maxim ‘equality is equity' applies."
In the Encyclopedia of Pleading and Practice, volume 20, page 765, we find the following:
"Where stockholders have been sued on their liabilities for corporate indebtedness, and have paid such indebtedness, their remedy for contribution from the other stockholders for their proportion of the debt can, as a general rule, be enforced in a court of equity only."
The same principle was announced in Easterly v. Barber, 66 N. Y. 433. On page 439 the court said :
"It is claimed that an action at law by a surety for contribution must be against each of the sureties'separately for his proportion, and that no more can be recovered, even where one or more are insolvent. In the latter case, the action must be in equity against all the cosureties for contributions, and, upon proof of the insolvency of one or more of the sureties, the payment of the amount will be adjudged among the solvent parties in due proportion. The principle stated is fully sustained by the authorities. It is thus stated, in Parsons on Contracts (vol. 1, page 34) : ‘At law a surety can recover from his cosurety an aliquot part, calculated upon the whole number, without reference to the insolvency of others of the co-sureties ; but in equity it is otherwise.’ . . .
There seems to be a propriety in the rule that where sureties are called upon to cohtribute, and some of them are insolvent, that all the parties should be brought into court and a decree made upon the equitable principles in reference to the alleged insolvency.
. The action here was not of this character ; nor were all the proper parties before the court. It was clearly an action at law, and in that point of view, as we have seen, the plaintiff could only recover for' one-fourth of the debt for which all the sureties were liable. The distinction between the two classes of actions is recognized by the decisions.”
In an equitable proceeding brought by the creditor of an insolvent corporation against all of the stockholders for the debts of the corporation, the defendants would be liable for their pro rata proportion of the debts, excluding from the computation all insolvent and non-resident stockholders. The creditors of the corporation could not be forced into another jurisdiction to collect their debts against non-resident stockholders while there were stockholders financially responsible and liable within the jurisdiction of the court. In the present case we think the same principle applicable in its fullest extent. The plaintiff’s remedy for contribution is against the resident, solvent stockholders. They cannot force her into another jurisdiction to recover the debt due her. (Security Ins. Co. v. St. Paul Ins. Co., 50 Conn. 233; Acers v. Curtis, 68 Tex. 423, 4 S. W. 551; Liddell v. Wiswell, 59 Vt. 365, 8 Atl. 680; Boardman v. Paige, 11 N. H. 431; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635 ; Easterly v. Barber, 66 N. Y. 433.)
It appears that J. H. Prescott and E. ~W. Dow were either the owners of, or had a lease for, certain lands in Texas, on which it was supposed there were deposits of gypsum suitable for the manufacture of merchantable plaster. For the purpose of manufacturing this material the Lone-star Plaster Company was incorporated, with a capital stock of $75,000, by J. IT. Prescott, E. W. Dow, J. F. Merrill, C. B. Kirtland, M. M. Briggs, and Linda Clarkson. Before anything further was accomplished J. H. Prescott died. Thereafter Mary E. L. Prescott, as the widow of J. H. Prescott and guardian of the Prescott children, and Dow leased the Texas land to the corporation in consideration of a certain royalty agreed to be paid and a bonus of $,40,000 of stock in the corporation. Afterward the plaintiff and Dow sold this stock at $60 per share to the other named members of the corporation. Besides these shares Mary E. L. Prescott owned 113 shares of stock.
It is contended that the land which was turned over by the Prescott estate and Dow at $40,000 was not worth to exceed $12,000 ; that this was all they paid for the stock, and before plaintiff could have contribution she should be charged- for her stock at the same rate the defendants paid. There was some evidence-tending to show that the value of the land did not exceed $12,000. The trial court was asked to make a special finding as to the value of this land at the time it was turned over to the company by the Prescott estate and Dow, which was refused, and this is alleged as error. It is not claimed, and there was no-evidence introduced to show, that the transaction between the Prescott estate and Dow in fixing the price of the land, and the corporation in accepting it at the price and upon the conditions fixed, was fraudulent. If not fraudulent, but in good faith, the refus ing to find the actual value of the land was wholly immaterial, and therefore not error.
The creditor banks offered to give a full release to all stockholders who would pay an amount equal to §8 on each share. Some of the defendants availed themselves of this opportunity and received their release in full. The stockholders who paid contend that by reason of having paid and received this release they are not liable to the plaintiff for contribution. The court in its computation as between the plaintiff and such paying stockholders gave them credit for the amount actually paid, with interest from the date of payment. Thus it will be observed that they were not required to pay more than their equitable proportion of the liabilities of the corporation. All of the stockholders of an insolvent' corporation, as between themselves, are liable for an equitable proportion of the debts of the corporation, based upon the number of shares of stock owned by each, and a release’ purchased from a creditor of the corporation for less than a full payment of all liability will not operate to relieve a stockholder from contribution to one who has paid more, except to the extent of the amount actually credited on the judgment by reason of such payment. The basis of computation thus adopted by the court was an equitable apportionment of the liabilities of the corporation between stockholders. Of this no complaint can be justly made.
There are some other questions presented in the argument by plaintiffs in error, but upon an examination we do not find that any error was committed.
The judgment of the court below is affirmed.
All the Justices concurring.
Burch, J., not sitting. | [
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Per Curiam:
We have examined the various questions raised by plaintiff in error on the errors assigned, and think that the judgment below was sustained by the law and the evidence.
The contract between the parties, appearing from their letters, satisfied the statute of frauds, especially when-the technical terms of the nursery business were explained by witnesses familiar with the expressions used.
The judgment of the court below will be affirmed. | [
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Per Curiam:
A tenant of real estate made improvements upon the leased premises under an oral agreement that his rent should be applied to the cost of such improvements, and that any balance of such cost remaining undischarged should be paid by the landlord when the tenant -left the premises or the town in which they were situated The event upon which the balance should become due was single. The expressions used in the conversation of the parties were not intended to be in the alternative, but were designed merely to make definite the agreement that so long as the tenant was liable for rent the rent should go to the payment of the advancements for the improvements; and that when the rent ceased, and there was no longer a fund from that source to be applied on the account for improvements, the unpaid balance should be due from the landlord. This construction of the contract is confirmed by the pleadings of the landlord in defense to the action by the tenant for the balance due on account of the advancements for improvements. Such being the agreement of the parties, the action was not barred by the statute of limitations.
In stating the account between the parties, the tenant' was allowed an item of twenty-five dollars as a reduction which the landlord agreed to allow on one year’s rent, and it is claimed that there was no consideration for such agreement. Such defense was not made by the pleadings and cannot now be considered.
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. The record is therefore free from error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Alfred Spohr was convicted of the offense of manslaughter in the fourth degree as defined by G. S. 1949, 21-420, and appeals, assigning error in the particulars hereafter noted.
I. Appellant contends that the trial court erred in overruling his motion to quash the information. The information charged that on February 24, 1950, Spohr did “unlawfully, feloniously and willfully by his act, procurement and culpable negligence, kill a human being, to-wit: Elizabeth B. Greene, in that he drove and operated a motor vehicle upon U. S. Highway No. 154, ... at a speed greater than was reasonable and proper, and while under the influence of intoxicating liquor, and crosswise of the highway into the path of, and violently against an approaching motor vehicle . . . containing as a passenger the aforesaid Elizabeth R. Greene, who received bodily injuries as the result of said collision, which said bodily injuries caused her death; . . .”
Appellant’s argument is that the information failed to allege the unlawful acts of Spohr were the proximate cause of the death of Elizabeth B. Greene, and further that the words “crosswise of the highway into the path” of the approaching motor vehicle did not state an unlawful act, and our attention is directed to certain of our decisions that the negligence charged must be some unlawful act (State v. Harrison, 121 Kan. 670, 249 Pac. 623; State v. Bowser, 124 Kan. 556, 261 Pac. 846; and State v. Custer, 129 Kan. 381, 282 Pac. 1071, 67 A. L. R. 909) and to other authorities that the unlawful acts and culpable negligence of the defendant must be the proximate cause of the homicide. In his brief appellant does not state wherein the information is defective under the authorities cited by him. Under G. S. 1949, 62-1004, it is required that the information state the facts constituting the offense in plain and concise language; under 62-1008 words used must be construed in their usual acceptation in common language, except where defined by law; and under 62-1009 the words used in the statute to define an offense need not be strictly pursued, but other words conveying the same meaning may be used. An information is good if it states the offense in the language of the statute. See State v. Eason, 163 Kan. 763, 186 P. 2d 269. An examination of the information shows that the statutory language of G. S. 1949, 21-420 was substantially followed; that driving at a speed greater than reasonable and proper, and while under the influence of intoxicating liquor, and crosswise of the highway, charged unlawful acts under G. S. 1949, 8-530, 532, 537 and 540, and that the information did charge these acts were the proximate cause of the death, even though the specific words “proximate cause” were not used. Without further comment, we hold the trial court did not err in overruling the motion to quash the information.
II. Appellant next contends that the trial court erred in admitting in evidence a confession made by the accused to Captain Glasscock of the State Highway Patrol. He directs our attention to the rule that in a criminal case evidence as to extra-judicial confessions or admissions made by an accused may be received in evidence only when freely and voluntarily made, citing textbook authority and our decision in State v. Aguirre, 167 Kan. 266, 206 P. 2d 118. There was no dispute in the evidence that accused, while driving westwardly at a high rate of speed along the highway in a pickup truck, came up behind a truck proceeding in the same direction and suddenly turned to his left and directly into the path of an automobile in which Elizabeth B. Greene was riding, and struck that automobile, wrecking it and causing injuries to Mrs. Greene from which she died. Some four hours after the accident the accused was ques tioned by Captain Glasscock. The evidence of which complaint was made concerned the kind and amount of liquor accused had consumed within a period of three or four hours prior to the collision, and whether accused was drunk. At the time of the conversation between Glasscock and the accused, accused made no complaint that he had received any injuries in the collision, but shortly after the conversation he was taken to a doctor who found he had some broken ribs and a broken arm. At a hearing when the jury was not present, the trial court found the statements made were voluntary, and they were then received in evidence when the jury was present. We find it unnecessary to dwell at length on the contention made. The state’s evidence that accused’s statements were freely and voluntarily made was ample. While it is true that appellant now contends that he made the statements while in great pain and at the insistence of Captain Glasscock, in the end he did not directly contradict any statement attributed to him by Glasscock. Whether considered as a confession, as contended by appellant, or as admissions against interest, as we think more accurate, it does not appear the trial court erred.
III. Appellant further contends the trial court erred in overruling his demurrer to the state’s evidence. The gist of the contention is that for an accused to be guilty of manslaughter in the fourth degree under G. S. 1949, 21-420, it must be shown he killed a human being by his act, procurement or culpable negligence, which act, procurement or culpable negligence would be manslaughter at common law, and that under our decisions the negligence of the defendant must be some unlawful act, must be more than mere lack of due care or ordinary negligence and must be of a higher degree of negligence or a reckless and willful negligence, citing in support State v. Custer, supra, and State. v. Gloyd, 148 Kan. 706, 84 P. 2d 966, and it is argued that although the evidence may have proved that accused drove at a speed greater than reasonable or proper, or while under the influence of intoxicating liquor, both of which are denounced as unlawful under the uniform act regulating traffic on highways (G. S. 1949, 8-530 and 532) the mere violation thereof did not make the actor guilty of negligence necessary to convict on a charge of fourth degree manslaughter, and the evidence must have disclosed a recklessness which indicated a willful and wanton disregard for the safety of persons and property, citing State v. Custer, supra; State v. Gloyd, supra; State v. Phelps, 151 Kan. 199, 97 P. 2d 1105; and State v. Phelps, 153 Kan. 337, 110 P. 2d 755. It may be observed that in State v. Gloyd, supra, and the first State v. Phelps, supra, defendants were convicted of manslaughter in the fourth degree and appealed, the principal question, insofar as we are now concerned, being the necessity for an instruction on the lower degree of negligent homicide as defined by Laws 1937, Ch. 283, § 29, or as amended by Laws 1938, Ch. 5.9, § 1, and now appearing as G. S. 1949, 8-529. The second Phelps case involved no question of the sufficiency of the evidence under any contention similar to that presently presented.
State v. Custer, supra, contains an exhaustive analysis of the fourth degree manslaughter statute presently before us and much of a historical recital of the reasons for such a statute and reference is made thereto. In that opinion it was said in part:
“The result was it came to be thoroughly understood that the system of thought known as the common law did not sanction conviction of a man of manslaughter resulting from negligent conduct, unless his conduct was accompanied by a wrong mental attitude having the qualities of recklessness.” (1. c. 387)
“In defining common-law manslaughter it should not be necessary to fill instructions with ‘epithets.’ The term ‘reckless’ is not an epithet, but a descriptive adjective. The term ‘recklessness’ is a fairly understandable noun. Under the statute, as applied to automobile drivers, negligence is not merely conduct which fails to conform to the familiar, common standard, the conduct of a reasonable man under like circumstances. Negligence is conduct which is induced by recklessness, and which involves undue risk of harm. To be reckless, conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.” (1. c. 395)
and it was held:
“If death results from unlawful conduct amounting to misdemeanor denounced by statute for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would be manslaughter at common law.” (Syl. f 4)
Our examination of the evidence shows that it is not as limited as appellant states. The evidence showed that shortly before the fatal collision the appellant, driving 50 to 55 miles per hour, came up behind another truck proceeding westwardly and attempted to pass it in the face of oncoming traffic, and a collision was then averted only because the driver of the truck being passed slowed down and went to the shoulder of the road; and that appellant drove first on one side and then on the other of the center stripe. Appellant’s own testimony was that he drove behind a truck for awhile, that the road ahead was clear and he turned out to go ahead and “all at once a light gray car was right there in front of me.” Other evidence that appellant was under the influence of liquor need not be detailed. We cannot say as a matter of law that appellant’s conduct was not reckless. We note appellant’s argument that the evidence did not show his negligence to be the proximate cause of the death. In our opinion that contention is not good under the evidence, nor is his contention that he was confronted with an emergency and was guilty only of a mistake in judgment. We think the evidence was sufficient to go to the jury for its decision.
IV. Appellant contends the trial court erred in not granting his request that the charge of manslaughter be reduced to negligent homicide. The basis for this contention is that the evidence showed him guilty only of ordinary negligence. The elements of manslaughter in the fourth degree and the sufficiency of the evidence have been treated heretofore. The trial court gave an adequate instruction, to which no exception was taken, on the question of negligent homicide. The jury, although having an opportunity to find defendant guilty of a lesser offense, did not do so. We think there was no error in the trial court’s refusal to reduce the charge as requested by appellant.
V. Appellant further contends that the trial court erred in the giving of three instructions to the jury.
In substance, the court in its instruction No. 5 advised the jury as to the elements of manslaughter at common law and as to that part of the instruction there is no complaint. It further advised the jury that if they believed from the evidence that the defendant was doing a lawful act the burden was upon the state to prove “by a preponderance of the evidence” that his conduct was reckless, or if they found from the evidence by “a preponderance thereof” that defendant was guilty of unlawful conduct amounting to a misdemeanor denounced by statute for the purpose of protecting human life, then negligence is presumed. At the trial the only objection to this instruction was that it failed to advise the jury the acts complained of must be the proximate cause of the death of Mrs. Greene. In his brief in this court appellant also complains that the use of the phrase “by a preponderance of the evidence” was improper and that the court should have instructed that the state must prove “beyond a reasonable doubt” that the acts complained of were the proximate cause of the death of Mrs. Greene.
With respect to both complaints we note that it has been held repeatedly that instructions to a jury must be considered as a whole. See West’s Kansas Digest, Criminal Law, § 822; Hatcher’s Kansas Digest, Criminal Law, § 295.
Taking up first appellant’s contention with respect to proximate cause, we note that by its instruction No. 4 the trial court advised the jury that the state must prove to their satisfaction “and beyond á reasonable doubt” that the defendant did, by his act, procurement and culpable negligence, drive his automobile against the automobile in which Mrs. Greene was riding, thereby inflicting a mortal injury upon her and as a result thereof she died, and that if the .state did so prove, the jury should return a verdict of guilty, but that if the state did not so prove or if the evidence was sufficient to raise “a reasonable doubt” as to any of the facts necessary for the state to establish, then the jury should acquit the defendant. In instruction No. 10, to which no exception was taken, the jury was advised that proximate result is that result which occurs in a natural and continuous sequence, unbroken by any new or independent cause from the act complained of, and which result would not have occurred except for such act. We think the jury was adequately advised that defendant’s acts, if established to the satisfaction of the jury and beyond a reasonable doubt, must have been the proximate cause of the death.
The use of the phrase “by a preponderance of the evidence” in instruction No. 5 was improper, but that its use was prejudicially erroneous does not follow. Without setting forth each instance in the instructions as a whole, the correct phrase “beyond a reasonable doubt” was used at least twelve times. A like situation was considered in The State v. Husong, 109 Kan. 84, 197 Pac. 874, where it was held:
“In a criminal case, the jury were told that the alleged facts and circumstances must be shown by ‘a preponderance of evidence.’ Held, that as the charge contained repeated admonitions that guilt must be shown beyond a reasonable doubt, the error in the use of the quoted words must be deemed immaterial.” (Syl.)
In our opinion the inadvertent use of the phrase complained of was not prejudicial to the appellant.
Appellant also complains that by its instruction No. 7 the jury was not properly advised as to the meaning of the phrase “under the influence of intoxicating liquor.” The substance of the instruction was that it was not necessary for the state to prove any specific degree of intoxication, and that the term as used in the information and the instructions covered not only all of the well known and easily recognized conditions and degrees of intoxication but any mental or physical condition which was the result of indulging in intoxicating liquors which tended to deprive a driver of that clearness of intellect and control of himself which he would otherwise possess. Appellant’s argument is that it is not sufficient to show only an appearance of having been drinking, but that the evidence must be sufficient to show this element of guilt “beyond a reasonable doubt,” and if the evidence only created a suspicion that the defendant was intoxicated, it was insufficient. As will be observed, the contention made is not limited to the instruction. In our opinion the instruction is not subject to criticism under the reasoning and definitions in State v. Ketter, 121 Kan. 516, 518, 247 Pac. 430; State v. Hayden, 126 Kan. 799, 801, 271 Pac. 291; Thornton v. Franse, 135 Kan. 782, 787, 12 P. 2d 728.
And finally appellant complains that under instruction No. 12 the trial court failed to properly instruct with reference to his privilege against self incrimination. The instruction covered the matter of the purported confession or admission of guilt and advised the jury fully that the credit to be given it was a matter resting wholly in the discretion of the jury and that in determining weight and credibility to be given such confession or admission the jury was' authorized to consider whether or not such confession or admission was freely and voluntarily made, whether any threats or promises were made and that generally truth or falsity of such confession or admission should be determined by the same rules as any other fact in the case. When the instruction was given appellant took exception it did not give information regarding the privilege against self incrimination, but he requested no further instruction. In his brief there is no complaint that the instruction as given is erroneous —rather the complaint seems to be that it does not contain a reiteration of the state’s duty to prove that each and every part of defendant’s statements was voluntary and of the truth of the contents of those statements “beyond a reasonable doubt.” In our opinion the instruction was not prejudicial nor did the trial court err in not giving other or further instructions about appellant’s privilege not to incriminate himself.
VI. Appellant’s contention the trial court erred in denying his motion for a new trial raises no question not previously considered. The trial court did not err in its ruling.
The judgment of the trial court is affirmed.
Smith, J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from an order modifying and changing the original child custody order made by the district court in a divorce action.
A brief review of the events leading up to the rendition of the order from which the appeal is taken is essential to a proper understanding of the issues involved.
On August 5, 1948, Warren G. Dodd and Edythe K. Dodd were husband and wife and the parents of one child, a son, named Warren Glenn Dodd, Jr., who was approximately eleven and one-half years of age. On that date, due to marital differences, the husband commenced an action against his wife in the district court of Labette county by filing a petition in which he asked for a divorce, division of property, and custody of the minor child. Sometime later the wife responded to the petition by filing an answer and cross-petition wherein she prayed for the same relief. Thereafter, issues having been joined, the case was tried by the district court which held the husband was entitled to a divorce for the fault of the wife, made a division of their property, and awarded the husband the custody of the minor child. Judgment was rendered accordingly.
Within less than three months from the date of the divorce decree the defendant filed a motion in the original action for a change in the custody order. In that motion she asked that she he given custody of the child and that plaintiff be required to contribute to its support, maintenance, and education. Following a hearing on this motion, at which both parties adduced evidence the district court made a new custody order. Omitting references to the manner in which certain child support payments were to be made it reads: ■ ,
“Now on this 3rd day of July, a. d. 1950, the court having had an opportunity to interview the minor child of the parties and having reviewed the file and record of proceedings had in this case and being now fully advised and informed in the premises finds that said motion should be sustained in part and overruled in part.
“Therefore, It Is By the Court Considered, Ordered, Adjudged and Decreed, That the former order of this court concerning the custody and support of the child, to-wit: Warren G. Dodd, Jr., be and the same is hereby modified as follows: That defendant herein be and she is hereby awarded the custody and control of said child during the months of June, July and August of each year hereafter; that during the period of time said child is in the custody of defendant, that plaintiff herein pay to the clerk of this court for the support, maintenance and care of said child the sum of Fifty Dollars ($50.00) per month. . . . that plaintiff herein be and he is hereby awarded the care, custody and control of said minor child of the parties during the months from September 1st to May 31st of each year hereafter until the further order of this court or the judge thereof; during the months in which plaintiff has custody of said child, said child shall remain with and be in the home of his parental grandparents, Mr. and Mrs. W. F. Dodd; that each of the parties hereto is hereby given the right of visitation with said child at any and all reasonable times, so long as they shall properly demean themselves, during the time said child is in the custody of the other party; that the former order of this court, dated the 2nd day of November, 1949, be and remain in full force and effect in all respects, except as herein modified; that plaintiff pay the costs of this proceeding.”
The defendant, who was dissatisfied with the foregoing order, gave due notice of appeal and now insists it was error for the trial court to deny her full and complete custody of the minor child and award its custody to the plaintiff for nine months of each year with the requirement that during such period of time it should remain with and be in the home of its paternal grandparents.
It is the well settled law of this state that whether a trial court changes the custody of a child from one parent to another, when they have been divorced, is a matter resting in its sound judicial discretion and that its action with respect to changes of such character will not be disturbed on appellate review unless the record makes it clearly appear that discretion has been abused (See Prier v. Lancaster, 169 Kan. 368, 219 P. 2d 358; Kogler v. Kogler, 163 Kan. 62, 179 P. 2d 940; Travis v. Travis, 163 Kan. 54, 180 P. 2d 310; Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127).
It will add nothing to the body of our law on the subject of custody of children and of a certainty will do the parties no kindness to point out and spread upon our records portions of the testimony on which they rely as supporting their respective positions regarding the propriety of the order made by the district court in the instant case. It suiBces to say the record reveals that that tribunal, fully aware of its duty and obligation in a child custody proceeding (See Prier v. Lancaster, supra), after careful and conscientious consideration of all material factors of which it was bound to take cognizance, and under conditions and circumstances which did not compel it to reach a contrary conclusion, concluded that it was to the best interests of the child of the parties that its custody be in the mother during the summer months and with the father during the winter months, conditioned that while in the custody of the father it remain in the home of the paternal grandparents who, we pause to note, were living in a residence owned by the father and the home in which the child had been living with his parents prior to the divorce. In such a situation, particularly in view of the fact that less than three months before the same court, for reasons which were entirely justified, had concluded the mother was not entitled to custody of the boy at all, it cannot be said that refusal to give her application for his full and complete custody more favorable consideration resulted in abuse of discretion. Indeed, in the face of the record, we doubt if denial of the motion in its entirety would have required any such conclusion.
Apparently in anticipation of a conclusion that the factual situation disclosed by the record would not warrant a reversal of the trial court’s action in refusing to make a complete change in its original custody order the appellant insists that the effect of the order as made was to give the custody of the child to the paternal grandparents as against the natural maternal parent and therefore results in abuse of discretion even though the facts warrant its decision the father was entitled to the child’s custody during the period of time fixed by the terms of its order. In support of her position on this point appellant relies on two of our recent decisions, Stout v. Stout, 166 Kan. 459, 201 P. 2d 637 and Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695, holding that as between a natural parent and grandparents the natural parent is entitled to the custody of his children where he is able to care for them, desires to do so, and has not been found to be an unfit person to have them. We have no quarrel with the rule announced in the foregoing decisions. The trouble, from appellant's standpoint, is that such rule applies only to cases where the sole issue before the trial court is whether the parents or the grandparents are entitled to custody of minor children and has no application to a case where both parents are contending for their custody. We have never held that a father whose home has been broken up and who is otherwise entitled to custody of his child can be deprived of that custody simply because the exigencies of making a living compel him to keep it in the home of his parents or that a trial court abuses its discretion when — as here — it requires him to keep it there so long as such court deems it to be to the best interest of the child that that be done.
The judgment is affirmed. | [
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Per Curiam:
The defendant in this case was charged with making fifty-six separate sales of intoxicating liquor contrary to law. He was found guilty of the first seven and acquitted of the remainder. He says the verdict is not supported by sufficient evidence, and the witnesses are counted and classified, and their testimony analyzed, as was done, no doubt, in the argument to the jury. From the record, however, it fairly may be inferred that the demeanor of some of the witnesses while testifying had much to do with the effect of their statements. The deportment of the witness while testimony is being given is often indispensable to its valuation. This the record cannot reproduce with the informing effect it had upon the jury. Hence the jury’s estimation of the evidence will not be disturbed.
The defendant further says that the testimony bearing on the seven counts was the same as that relating to the other forty-nine, and concludes that the jury was not heedful of the law and evidence. If so, it would seem to be a matter of gratulation, and not of grief, to the defendant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
The petitioner is a boy under the age of sixteen years who was convicted of the crime of petty larceny before a justice of the peace of Rock Creek township in Nemaha county, and sentenced by said justice to the State Reform School at Topeka until he should arrive at the age of twenty-one years, or, if not accepted at the reform school, then to imprisonment in the county jail for a period of thirty days. The question before us is whether a justice of the peace is vested by the law with power to commit the prisoner to the reform school.
The reform school was erected under the supervision of the state board of charities, as provided in chapter 170, Laws of 1879 (Gen. Stat. 1901, §§ 7118 and 7119.) At the next session of the legislature chapter 129, Laws of 1881, was enacted, entitled “An act to provide for the organization and management of the State Reform School” (Gen. Stat. 1901, §§ 7118- 7136.) Sections 3 and 4 of the law last mentioned read:
Sec. 3. Whenever any boy under the age of sixteen years shall be convicted of any offense known to the laws of this state, and punishable by imprisonment, the court or justice, as the case may be, before whom such conviction shall be had, may, at its discretion, sentence such boy to the state reform school, or to such punishment as is now provided by law for the same offense; and if the sentence shall be to the reform school, then it shall be in the alternative to the state reform school, or to such punishment as would have been awarded if this act had not been passed.
Sec. 4. Courts of record, and probate courts of the state shall have power to commit to the reform school1— First, any boy under sixteen years of age who may be liable to punishment by imprisonment under any existing law of the state, or any law that may be enacted and in force in the state ; second, any boy under sixteen years of age, with the consent of his parent or guardian, against whom any charge of committing any crime or misdemeanor shall have been made, the punishment of which, on conviction, would be confinement in jail or prison; third, any boy under sixteen years of age who is incorrigible, and habitually disregards the commands of his father or mother or guardian, and who leads a vagrant life, or resorts to immoral places or practices, and neglects and refuses to perform labor suitable for his years and condition, and to attend school; Provided, That before said court shall commit such boy, he shall cause to be filed a complaint setting forth the charges complained of in writing; and before he shall investigate said charges he shall give at least five days’ notice to all persons interested of the filing of said complaint, and the time and place of hearing of the same, and if on the final hearing of said complaint he is satisfied that said complaint is true, and that the case comes under the provisions of this act, he may commit.”
Section 3, copied above, confers on a justice of the peace power to sentence only. If this section stood alone we might with reason hold that the authority given by it to sentence to the reform school carried with it by implication the power to commit.
Section 4 has relation to the matter of committing boys to the reform school, and the power to do so is restricted to courts of record, including the probate court. These courts are authorized to commit to the reform school “any boy under sixteen years of age who may be liable to punishment by imprisonment under any existing law of the state.” Such was the status of the petitioner after his conviction by the j ustiGe of the peace. In the case of In re Sanders, Petitioner, 53 Kan. 191, 201, 36 Pac. 348, 350, 23 L. R. A. 603, it was held that the words “liable to punishment” should be construed as meaning “subject to punishment.”
We are cited by counsel for respondent to sections 5822 and 5824, General Statutes of 1901, giving power to a justice of the peace both to fine and imprison in misdemeanor cases, and' requiring the officer to whom his warrant is directed to carry out its commands. These statutory provisions, however, are general and have reference to a commitment to the county jail.
We think it was the intention of the legislature by the act of 1881 to provide for a formal record of the commitment of a boy to the reform school by vesting that power in coxirts having a seal.
In the present case the petitioner is about fourteen years of age, and if held under discipline in the reform school his term of detention might be extended to seven years. We think that by the enactment of section 4 above set out, it was the legislative design to divest justices of the peace of such power and to vest it in courts of record, to be exercised after due consideration, and after notice to all persons interested, which necessarily includes the boy’s parents. The record of conviction befoi’e a justice of the peace might of itself be sufficient evidence on which the district or probate court might act. This was intimated in the case of In re Sanders, Petitioner, supra, where it was said:
“Courts of record, including probate courts, may possibly have the authority, where a boy under sixteen years of age has been convicted of a criminal offense punishable by imprisonment, and sentenced to a prison by a justice of the peace or a court, afterward to commit him to the reform school.” (p. 201.)
It may be of service, by way of comparison, to refer to chapter 93, Laws of'1869. By that act reform schools were established in all counties in the state in which there' was located a city of the first class, for the punishment, reform and education of juvenile offenders. By section 16 of the act it was expressly provided that upon the conviction of any person under the age of sixteen years of a. felony or misdemeanor before a criminal court, police judge, or justice of the peace, instead of his being sentenced to the penitentiary or to the county jai.1 or to pay a fine, the court or officer “shall order the person so convicted to be removed to, and confined in, the reform school established by this act.” In section 22 of the same law the board of managers of such reform school were required to receive all persons so convicted and committed. It will be seen that the law under consideration is materially different in its provisions respecting the power and jurisdiction of justices of the peace from cases falling under the law of 1869.
The petitioner will be discharged unless within ten days from this date a commitment be issued by a court of record'for his detention.
Johnston, C. J., Pollock, Burch, Mason, JJ., concurring.
Greene, J.,
dissenting: I cannot give my assent to the opinion of the court in this controversy. To my mind the language of section 3, quoted in the opinion, is so plain as to be incapable of misunderstanding, and its provisions so complete within themselves-that the wonder is that a suggestion could come to the mind that it was in any way dependent upon section 4 for its final execution.
Under section 3 the party charged must be given a trial by a jury, if demanded, and is protected by all the other formalities of the law provided by the legislature for the trial of persons over the age of sixteen years, charged with the commission of any misdemeanor of which a justice of the peace has jurisdiction. The opinion concedes the power of the Justice of the peace to try and sentence, but denies the power to commit. It has always been held that the power to try and sentence inchides the power to issue process to carry the judgment of the court into execution, and that is the only office of a commitment. (4. Wend. Black. Com. 289 ; I Chit. Grim. L., 35.)
It is said in the opinion that “if this section stood alone we might, with reason, hold that the authority given by it to sentence to the reform school carried with it by implication the power to commit.” The theory of the court is that the power to commit, which by implication is contained in section 3, is taken away by the provisions of section 4. To me it is plain that the provisions of section 4 have not, and were not intended to have, application to proceedings had under section 3. Section 4 provides that courts of record and probate courts may, upon complaint, make an investigation of the charges preferred and without a trial or conviction commit to the reform school. Under this section the accused party is not entitled to demand a jury or that the investigation be held with any of the formalities provided by law for the trial of criminal cases.
It is said in the opinion that' it was the intention of the legislature by the act of 1881 to provide for a formal record of the commitment of the boy to the reform school. The policy of Kansas has been to make such institutions reformatorjr instead of penal. If so, why should the legislature desire to make a lasting record against every boy whose youthful indiscretions lead to a term in the reform school? , Our policy has not been to- perpetuate a record of such matters, but to forget, and assist the world to forget, as soon as possible.
If it be correct that when a justice of the peace has tried a boy and exercised his discretion and sentenced him to the reform school he must then, without any provision for the issuance of any process therefor, bo conveyed by some person before the district or probate court whose duty it shall be, without investigation or the exercise of any judicial power, but purely as a ministerial act, to issue a commitment, it necessarily follows that if such court neglect or refuse to issue the order it may be compelled to do so by mandamus, or possibly the judge may be held in contempt of the order of the justice of the peace. I do not believe it was the intention of the legislature (and certain it is-that it uses no language in either of the sections which conveys to the mind the idea that it was its intention), to compel courts to go through so useless a formality. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff commenced an action to recover a deposit in connection with a purchase of real estate. Defendants filed an answer and counterclaim in which they sought specific performance. The defendants prevailed and plaintiff appeals.
In the petition it was alleged that Zolezzi, a real estate agent, and McDowell, an attorney, were agents of defendants Dolby, and that on March 21, 1950, Zolezzi induced plaintiff to execute a writ ing, a copy of which was attached as “Exhibit A,” and to pay McDowell $1,000. “Exhibit A” was as follows:
“Kansas City, Mo., March 21, 1950.
“You are hereby authorized to offer the owner of the property located at West fifty feet, facing on Quindaro Blvd, in K. C. Kan. Between 16th. and 17th. the sum of Three Thousand Five Hundred and no/100 Dollars for said property, on the following terms: Cash $1,000.00 cash, herewith, as earnest money to be returned if offer is not accepted. $_ additional cash at signing of regular Real Estate Sales Contract, which I agree to sign within three days of acceptance of this offer; balance in the following manner. $2,500.00 Cash on Delivery of Deed. Earnest Money to be Escrowed with Joseph H. McDowell, a Lawyer in the Huron Bldg. Kansas City, Kansas.
“I hereby agree to hold open this offer for acceptance by the owner of said property until_P. M. March 24th, 1950.
“/s/ James F. Sewell
“/s/ Theodore R. Dolby”
It was further alleged that plaintiff was induced to sign “Exhibit A” upon representations by Zolezzi that the writing did not contain all of the terms of a real estate contract which would be prepared for execution by the parties, including warranties of title and marketability thereof, fixing a limit of time to perform, and restrictions as to the use of adjoining property owned by defendants, and that unless such a contract was duly executed and delivered within three days, the entire transaction would be of no effect and plaintiff’ s deposit would be returned to him; that all such representations were false and the defendants and their agents had no intention or expectation of furnishing a real estate contract other than “Exhibit A”; that they were not able to deliver a good title then or to this date, but expected plaintiff to forfeit his deposit or take the property as it was. It was further alleged that the Dolbys have neglected or refused to enter into any such contract; that later plaintiff was furnished an abstract of title; that he obtained an opinion thereon, a copy being attached, and about May 9, 1950, he furnished the opinion to the defendants. Briefly stated the opinion sets forth that the title is in Theodore R. Dolby and Virginia T. Dolby, husband and wife, as joint tenants, subject to a designated mortgage, and certain tax hens, judgment liens, and personal property tax liens, and making some requirements as to other matters not necessary to be here set forth.
The petition then alleges the creation of a judgment lien subsequent to the above, and that by reason of defects in the title the property is worthless, and that although Theodore R. Dolby claims to have accepted the terms of “Exhibit A” he is not the sole owner of the real estate and in no position to convey the entire fee and plaintiff is without recourse against the other joint tenant; that on account of the delay, on May 19, 1950, he orally notified the defendants that he elected to rescind and demanded return of his $1,000 and the cancellation of “Exhibit A,” but that defendants neither cancelled the instrument nor returned the deposit. He prayed judgment for $1,000 and that the “escrow money be paid the Clerk (of the court) forthwith to abide the Court’s order.”
Defendants Dolby filed an answer and counterclaim in which they admitted the execution of “Exhibit A” and that they accepted the offer and that $1,000 had been deposited with McDowell; that notwithstanding the agreement to execute a “regular Real Estate Sales Contract,” defendants did not request plaintiff nor did plaintiff request defendants that such a contract be executed and defendants were induced to and did believe no further agreement was necessary or desirable and that the offer and acceptance constituted an agreement; that in reliance upon the agreement defendants had the abstract of title extended to date and furnished it to plaintiff’s attorney for examination, who accepted it and returned it with his written opinion making certain requirements; that by reason thereof they were induced to believe and did believe plaintiff was ready to buy when the requirements were satisfied and immediately upon receipt of the title opinion they proceeded diligently, obtained release of two tax liens and made arrangements to satisfy all the requirements; that on May 19, 1950, plaintiff and his attorney notified McDowell, attorney for Dolbys, they had decided not to complete the purchase and demanded return of the $1,000 deposit and upon McDowell’s refusal plaintiff, on June 7, 1950, filed his action; that on June 13, 1950, McDowell paid the $1,000 to the clerk of the court and plaintiff’s action was dismissed as to him. Defendants further alleged their willingness to satisfy all of the requirements of the title opinion and had tendered and do tender to the plaintiff a warranty deed to the real estate, but plaintiff refused to accept the deed or carry out his agreement to purchase the property. Defendants’ further allegations as to expense incurred and damages they would sustain unless plaintiff be required to purchase the real estate need not be set forth. They prayed for specific performance.
For present purposes it may be said plaintiff’s answer to defendants’ counterclaim and their reply to his answer are general denials.
Plaintiff filed a motion for judgment on the pleadings.
On October 11, 1950, a trial was bad, at which evidence was offered by each party. The trial court took the matter under advisement and on November 27, 1950, it found the allegations of defendants’ answer and counterclaim were true and found generally in favor of the defendants and against the plaintiff. The trial court denied plaintiff’s motion for judgment on the pleadings, his demurrer to defendants’ evidence and rendered judgment in accordance with its findings of fact and conclusions of law, which we abstract and quote as follows:
1. Covers the execution by plaintiff of “Exhibit A.”
2. Covers acceptance by Theodore R. Dolby.
3. Covers payment of $1,000 to McDowell.
“4. Immediately thereafter said defendant, Theodore R. Dolby, relieved said J. P. Zolezzi from any further duties and placed the matter of completing the transaction in the hands of his lawyer, Joseph H. McDowell; on or about March 24, 1950, plaintiff requested Zolezzi for a ‘Regular real estate sales contract’ and the said J. P. Zolezzi then informed the plaintiff that the transaction would thereafter be handled in Kansas, and thereafter all matters relating to the transaction were handled in Kansas by the attorney for defendants and the attorney for plaintiff.”
5. Described real estate; that it was owned by Theodore R. Dolby and Virginia T. Dolby as joint tenants and that she did not sign “Exhibit A”.
“6. Although the written instrument above described provided for the execution of a ‘Regular Real Estate Sales Contract’ within three (3) days after acceptance, the plaintiff did not request the defendants to execute any such ‘regular Real Estate Sales Contract,’ and plaintiff and defendants treated the said written instrument as a final and sufficient agreement between the parties.
“7. The defendants made no agreement or representations to the plaintiff .that they would restrict other adjacent property owned by the defendants so that such property would not be used by any 'business competitor of the plaintiff.”
8. Defendants delivered abstract of title to an abstracter. The abstract covers other lots and some delay was occasioned because the original abstract had to be “split”. Plaintiff’s attorney was advised.
9. The abstract of title was delivered to plaintiff’s attorney on April 18, 1950, for examination.
“10. Plaintiff’s attorney accepted delivery of the abstract and examined the same for the plaintiff, and on or about May 9, 1950, delivered to defendants’ attorney a copy of his title opinion setting forth his exceptions to the title and the title and the requirements necessary to satisfy the same.
“11. Defendants, upon receipt of said title opinion, proceeded diligently with the steps necessary to satisfy and meet the requirements set forth in said title opinion, and the attorneys for the parties conferred several times on the progress in the matter.
“12. The defendants obtained the release of the two (2) tax liens filed by the Labor Department of the State of Kansas, described in said opinion, and filed the same of record.
“13. The defendants made arrangements with Ben Paul Rollert and Olive E. Rollert, his wife, to obtain a release of the mortgage described in said opinion for the sum of One Thousand Dollars ($1,000.00) to be paid to said mortgagees from the proceeds of said sale.
“14. The defendants made arrangements to satisfy and discharge all other liens and encumbrances against said real estate, as shown by said title opinion, out of the proceeds of said sale and to satisfy all other requirements.
“15. On May 19, 1950, plaintiff and his attorney went to the office of defendants’ attorney and were advised of defendants’ arrangements to satisfy and discharge the said liens and encumbrances against the real estate and to satisfy all other requirements of the plaintiff set forth in the title opinion and were advised that defendants were ready to complete the sale. Plaintiff notified defendants’ attorney, however, that he no longer wanted the property, that the sale was rescinded, and demanded the return of the earnest money. At the time of said meeting and notice, said liens and encumbrances, with the exception of the liens of the State of Kansas for taxes, had not been actually discharged, and all of them were still of record.
“16. The defendants refused to rescind said agreement of sale or to return the earnest money.”
17. Not material.
18. Not material.
“19. Defendants have tendered to the plaintiff a warranty deed to the above described real estate but plaintiff has refused to accept the same.”
As matters of law the trial court concluded:
1. That there was a meeting of minds between the parties for the purchase and sale of the real estate.
“2. Under the Statute of Frauds, no action may be brought upon any contract for the sale of lands unless the agreement upon which the action is brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith (G. S., 1935, 33-106). The written instrument in this case, dated March 21, 1950, executed by James F. Sewell and Theodore R. Dolby, together with the written title opinion of plaintiff’s attorney of his examination of the abstract of title to the real estate described in said instrument, constituted a sufficient memorandum in writing of the plaintiff’s agreement to buy said real estate to satisfy the statute of frauds, and it is no defense to defendants’ action for specific performance of said agreement that it was not signed by Virginia T. Dolby.
“3. The plaintiff by his conduct in accepting the abstract of title for examination when proffered, in delivering to defendants’ attorney a copy of the title opinion setting forth exceptions to the title, in permitting defendants thereafter to take steps to correct said exceptions and perfect their title in reliance upon said title opinion, and by his failure to request of defendants or defendants’ attorney that a ‘Regular Real Estate Sales Contract’ be executed between the parties, waived the provision in said Exhibit A for the execution of a ‘regular Real Estate Sales Contract.’ ”
4. Time was not of the essence and defendants were entitled to a reasonable time to comply with plaintiff’s requirements on the title.
“5. In order to rescind the said agreement, the plaintiff was required to give the defendants notice of his intention to rescind and a reasonable time for performance by the defendants. The notice given by the plaintiff in this case on May 15, 1950, and again on May 19, 1950, was not a reasonable notice.
“6. The amount of the encumbrances against the real estate involved herein is much less than the amount of the purchase money so that such encumbrances can be completely discharged from the proceeds of the sale and the existence of such encumbrances is therefore not a sufficient defect to defeat specific performance in this case.”
The judgment was that the contract be specifically performed; that defendants forthwith deposit with the clerk a good and sufficient warranty deed and the abstract of title and that plaintiff, on or before March 19, 1951, pay the clerk the balance due of $2,500; that upon full receipt the clerk discharge the liens upon the real estate and, upon evidence of proper releases and discharges, pay the balance of the purchase price to defendants Dolby; that if plaintiff fail to pay the balance of the purchase price as decreed, the agreement should be cancelled, plaintiff barred of his right to specifically perform the contract and defendants have judgment against him for $1,000. Costs were taxed to plaintiff. Plaintiff’s motion for a new trial was denied and in due time he appealed from the judgment and the ruling on the motion for a new trial.
Before taking up the questions as presented in the appellant’s brief, we note that he does not include in his abstract any of the evidence introduced at the trial. Under the circumstances, we . assume the findings of fact are correct. See Addington v. Hall, 160 Kan. 268, 270, 160 P. 2d 649. The result is that parts of his argument, based on evidence contrary to the facts as found by the trial court, must be ignored.
Appellant first contends there never was a contract between him and the Dolbys for the reason that both owned the real estate but that Virginia T. Dolby did not sign the agreement of purchase and sale. In support, he cites the first clause of the first paragraph of Syl. ¶ 1 in Hallard v. Kinney, 135 Kan. 323, 10 P. 2d 836. The entire paragraph reads:
“Ordinarily a contract of two persons signed by only one of them cannot be enforced, but where the party seeking to take advantage of the fact that the contract was signed by only one of the parties has stood by and permitted the party who signed the contract to furnish labor and material and fully perform the contract he is held to have waived the fact that one of the parties did not sign and the contract is effective between the parties.”
Under the findings of fact in the instant case, the above decision does not support the appellant’s contention but is against it. Appellant also quotes from Boyd v. Colgan, 126 Kan. 497, 499, 268 Pac. 794, and from Allen v. Elwell, 129 Kan. 296, Syl. ¶ 1, 282 Pac. 706, that a contract in writing, to be binding, must be executed by all of the parties to it. In the first case it is recognized that one grantee in a grant of hunting privileges may enforce the grant although another named grantee did not execute the contract. A mere reading of both cases, however, will disclose that they are clearly distinguishable from the case at bar.
In our opinion the correct rule, as applied to the facts before us, was set forth in Wiley v. Hellen, 83 Kan. 544, 112 Pac. 158, where it was held:
“The signing of a contract to convey real estate by the party to be charged in a suit for specific performance satisfies the statute of frauds; and want of mutuality in the contract because the party suing did not sign is not a defense to the action.” (Syl. f 1.)
See also McKee v. McClain, 112 Kan. 746, 749, 212 Pac. 906, and Steele v. Nelson, 139 Kan. 559, 32 P. 2d 253, where it was said:
“The contention of defendant that he is not bound because plaintiff was not bound is not good, even though it should be held that plaintiff was not bound in this case. This is the rule laid down in Wiley v. Hellen, 83 Kan. 544, 112 Pac. 158.” (1. c. 563.)
Following the above is a quotation from the cited case and reference to other cases.
Appellant contends that his acceptance and examination of the abstract did not constitute a waiver of his right to a regular real estate sales contract. Directing attention to authorities holding that to constitute a waiver there must be a decisive act showing an intention to relinquish the right, appellant makes an extended argument that by accepting the abstract and having it examined, he did not waive his right to the regular contract. The findings of fact disclose that appellant knew at the end of three days or on March 24th that he did not have such a contract. Notwithstanding he accepted the abstract for examination on April 18th, returned it to Dolby on May 9th and thereafter permitted Dolby to proceed to satisfy his requirements as to the title. His diligence was limited to asking Dolby’s agent for such a contract on March 24th. When informed by that agent to see Dolbys or their attorney, he did nothing further toward getting the “regular” contract he now urges was so important. Measured by the allegations of the petition, the im portant par,t of such a contract would have dealt with restrictions on Dolbys’ adjacent property. Under finding No. 7 there was no agreement to that effect. The trial court did not err in holding appellant waived execution of a “regular Real Estate Sales Contract.”
Appellant contends that the title to the real estate was not marketable. A portion of this argument seems to be based on appellant’s version of the facts rather than on the facts found by the trial court. As we understand, it is contended that the title was not marketable because' of the existence of hens. Ignoring any findings, appellant’s argument seems to be that the encumbrances had to be fully removed before the purchase and sale were completed and that those encumbrances could not be discharged “with the buyer’s money.” In substance the same contention has been made previously in this court. In Guild v. Railroad Co., 57 Kan. 70, 45 Pac. 82, 33 L. R. A. (ns) 77, 57 Am. St. Rep. 312, it was held:
“In an action by a vendor to enforce the specific performance of a contract for the sale of lands, the existence of mortgages amounting to far less than the contract price to be paid by the purchaser, and which can be discharged out of the purchase-money, does not constitute a bar to the action.” (Syl. f 1.).
And a quite similar holding was made in Keepers v. Yocum, 84 Kan. 554, Syl. ¶ 4, 114 Pac. 1063.
We note also some complaint that the abstract was not complete and that a final opinion on it was impossible. It is true that the trial court made no explicit finding on the particular point, but it did find generally in favor of the Dolbys. We cannot assume the abstract was not complete — there is no abstract of any evidence as to its condition.
In arguing that appellant should have had judgment on the pleadings, appellant says only that his previous argument applies. In our opinion the pleadings did not disclose the parties had not made a binding contract nor that there was not a marketable title to the real estate. The trial court did not err in ruling on the motion for judgment on the pleadings.
A consideration of the record and of appellant’s specifications and contention of error convinces us the judgment of the trial court should be and it is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries sustained by plaintiff when she fell by stepping in a hole while crossing a street alleged to have been negligently maintained by the city. The answer was a general denial with a plea of contributory negligence. At the trial the jury answered special questions and returned a general verdict for plaintiff. Defendant moved for a new trial upon the grounds that the answers to certain of the special questions were contrary to the evidence, and such answers together with the general verdict showed passion and prejudice, and that the court erred in overruling its demurrer to plain tiff’s evidence. This motion was made upon oral arguments and briefs of counsel and was sustained by the trial court. Plaintiff has appealed and defendant has cross appealed from the order of the court overruling its demurrer to plaintiff’s evidence.
In ruling upon the motion for a new trial the court made a finding, which reads:
“It is apparent that the jury did not fully consider all of the evidence in arriving at their answers to the special questions and therefore, their verdict was against the weight of the evidence presented.”
This finding clearly discloses that the trial court was not satisfied with the verdict. It has been repeatedly held it is not only the function of the trial corut but its duty to examine the verdict of the jury and to approve or disapprove it. (See, Posey v. Johnson, 145 Kan. 742, 67 P. 2d 598, and cases cited page 745.) Later cases are to the same effect. (See, Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P. 2d 157.) When the court is not satisfied with the verdict it is the duty of the court to grant a new trial. (See, Myers v. Wright, 167 Kan. 728, 208 P. 2d 589, and cases there cited.)
We think plaintiff’s appeal is governed by the above decisions and that the court’s order in granting a new trial should be affirmed.
On its cross appeal defendant seriously presses the point that the court erred in overruling its demurrer to plaintiff’s evidence. This requires a summary of the facts disclosed by the record. These may be summarized as follows: Kansas Avenue, a north and south street in Topeka, is intersected at right angles by Twentieth street in the south portion of the city. The Santa Fe Railway track intersects Twentieth street just east of Kansas Avenue. East of Kansas Avenue Twentieth street extends for only one block and is spoken of as a “dead end” street. The east end of the block was used for a dump for some years, but its use for that purpose had ceased. At the time here in question someone living near there was using it to haul in trees and cutting them up into firewood for sale. The street was lower than Kansas Avenue and the railroad track and was not well drained. On the north side of the street there were several residential properties and one or more upon the south side of the street. On the north side of the street there was a sidewalk from Kansas Avenue east, perhaps halfway the length of- the block, in front of two or three of the houses on the north side of the street, but some of the houses were east of the end of the sidewalk. There was no sidewalk on the south side of the street and in times of wet weather it could not be used by pedestrians. At times of rainy weather or of freezing and thawing weather it was muddy. At such times trucks going to and from the wood yard on the east end of the street would cut ruts in the roadway. After such times the city would go in with its grader and grade the road, which would be in very good shape until bad weather again. On March 13, 1949, plaintiff was living at 1924 Harrison street, two or three streets west of Kansas Avenue and desired to visit her friend, Mrs. Jackson, who lived in a house on the south side of the one hundred block on East Twentieth street. She walked across Kansas Avenue on the sidewalk on the north side of the one hundred block on East Twentieth street across the railroad track to the end of the sidewalk and then south across the street to the home of Mrs. Jackson. There had been bad weather for several weeks prior thereto and the street had been cut up with ruts by the trucks which went to the wood yard at the east end of the block. While she was at the Jackson home a light snow fell. She left the Jackson home about 8:30 that evening and walked north until she reached a track made by a truck and walked east in the track for some distance, intending to go north to the sidewalk. There was a street light near by, which was not verv bright but lighted up the street so she could see where she was going. As she was walking along to the east she fell in such a way as to break some of the bones in her ankle. She lay there for several minutes before someone saw her and notified a Mr. Newell, who lived in one of the houses on the north side of the street. Mr. Newell and his wife went to her, saw she was injured, and took her in his car to the hospital.
Mr. Newell testified that where plaintiff fell there was a hole in the surface of the street about six or eight inches deep, eighteen inches long and fourteen inches wide. When plaintiff fell she did not see the hole. Within the month or two prior to plaintiff’s fall one or more persons had notified the superintendent of the street department of the city that the street was rough, that holes had developed in the surface, and that it needed repair, but there had been no notification of any holes of the size described by the witness. There was ample evidence of plaintiff’s injuries to sustain a verdict in her favor if the city is at all liable.
Counsel for appellee remind us that it is the well settled rule in this state that a city is not an insurer of the safety of pedestrians, citing Taggert v. Kansas City, 156 Kan. 478, 134 P. 2d 417. They also call our attention to the well settled rule that a city is not held to the same degree of care in maintaining in a reasonably safe condition a portion of the street commonly used for vehicles as for sidewalks, cross walks and other parts of the street where it is to be anticipated pedestrians will go, citing our recent case of Smith v. City of Emporia, 169 Kan. 359, 219 P. 2d 451. It is true that, as shown by plaintiff’s evidence, when she went to the Jackson home she used the sidewalk on the north side of the street as far as it was built and then crossed the street to the Jackson home, while on returning she left the Jackson home and walked to the center of the street and then walked east some distance in the middle of the street instead of walking directly north from the Jackson home to the sidewalk. Perhaps she was negligent in taking that course, but we think that is a question properly to submit to the jury. Counsel for the city also point out that plaintiff’s evidence does not show that the city had knowledge of the hole described by plaintiff’s witness prior to the date of the accident. It is true those who complained to the superintendent of the street department complained generally of the condition of the street as being rough and having holes worn in it, or as being muddy, as the case might be. None of them complained of this specific hole, or one of that size. We think it was for the trial court to determine whether the complaints made were sufficient under the law to put the city on notice of the imperfect condition of the street, which would have been discovered by an examination by the superintendent or some employee of the street department. Counsel for defendant also argue that the city’s lack of care of the street was not negligence under the circumstances disclosed by the evidence. This evidence was introduced by defendant and was not before the court when it passed on the demurrer to plaintiff’s evidence. On the record before us, which is not as definite in some particulars as it might have been, this court cannot say as a matter of law that the trial court should have sustained the demurrer to plaintiff’s evidence.
The result is the judgment of the trial court should be affirmed upon plaintiff’s appeal and upon the cross appeal by defendant.
It is so ordered. | [
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Per Curiam:
Plaintiff in error, as plaintiff below, sought to enjoin defendants from entering upon, and taking possession of, certain lots in the city of Chanute, it claiming title thereto. Defendant answered, pleading a decree of the district court of Allen county rendered in his favor against the company in December, 1884, quieting his title to the property in controversy and forever enjoining the company from setting up or claiming any title, estate or interest therein. Plaintiff replied claiming that this decree was rendered against it without service of summons and only upon the appearance of David Kelso, pretending to act for it as its attorney, and that Kelso had no authority so to act, and therefore that the decree, as against it, was without binding force and determined nothing. This reply was verified. The. defendant assumed the burden of showing that Kelso had authority to appear for the company in the former action. Evidence pro and eon upon this point was introduced, upon which the trial court found that Kelso was authorized so to appear, and therefore the decree was binding upon the company. We find sufficient evidence in the record to justify this finding.
The company offered to introduce various items of evidence tending to show that Allen should not have recovered in the original case. This evidence was correctly refused by the trial court upon the theory that the company was foreclosed by the decree as to all of these questions.
It appears that upon and across a corner of one of the lots the company had maintained its switch-track for more than fifteen years prior to the commencement of this action. As to that lot the court below adjudged that the statute of limitations entitled the company to recover. It now here claims that because it occupied one of the lots of the block, they being contiguous to one another, that was such an occupancy of all of them that the statute would run, not only as to the one actually occupied, but as to all. Prima facie the platting of the lots separated them and made them distinct tracts of land, so that the occupancy of one would not constitute occupancy as to the others, and there are no peculiar facts shown to remove these presumptions in this case.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Pollock, J.:
This action was brought by A. C. Markley against the Carbondale Investment Company to recover possession of, and rents and'profits accruing from, an eighty-acre tract of land. In March, 1899, the investment company conveyed the property to H. .W. and I. D. Burdick, taking a mortgage on the premises to secure a promissory note given as evidence of the entire purchase-price agreed to be paid for the land. Default having been made in payment of the mortgage debt, an action to foreclose this mortgage was brought in Osage county, and the venue changed to Lyon county. In this foreclosure action the defendants filed a cross-petition, claiming damages for breach of contract arising out of the purchase of the land, and for the malicious prosecution of a civil action in the premature institution of an action to foreclose the mortgage given, the aggregate amount of damages claimed being the sum of $20,000. Trial was had upon the issues so joined in February, 1894, which resulted in a judgment for $2500 in favor of defendants on this cross-petition. From that judgment the investment company prosecuted proceedings in error to this court, wherein that judgment was subsequently reversed. (Investment Co. v. Burdick, 58 Kan. 517, 50 Pac. 442.)
After the rendition of the judgment in the Lyon county district court, the Burdicks mortgaged the property to the Topeka Commercial Security Company to secure a promissory note of $2398.74. This mortgage was filed for record on the 7th day of November, 1894. On the same day one J. A. Kemp commenced an action against the Burdicks in the district court of Osage county to recover the sum of $572.62, and caused the property to be seized in attachment. On this day the petition in error to review the judgment of the district court of Lyon county was filed in this court. No supersedeas of the judgment, however, was hád at that time. The mortgage made by the Burdicks to the Topeka Commercial Security Company was thereafter sold and transferred to the Rhode Island Mortgage and Trust Company. In this mortgage is found this exception from the covenant against encumbrances: “Except the claims of the Carbondale Investment Company, now being adjudicated, and against which said company judgment has been rendered.” Thereafter, this mortgage was foreclosed, and the following recital is found in the decree ordering the sale of the property Subject to the rights of the said defendant, the Carbondale Investment; Company, as aforesaid.” Plaintiff became the owner of the certificate of purchase and sheriff’s deed based upon the attachment proceeding. ITe also became the owner of the certificate of purchase and sheriff’s deed based upon the foreclosure of the mortgage held by the Rhode Island Mortgage and Trust Company. All parties in interest in the land were parties to the action foreclosing the mortgage and are bound by the decree entered therein. After .the reversal of the judgment of the Lyon county district court by this court, the defendants dismissed their cross-petition in the district court of Lyon county. The mortgage to the Carbondale Investment Company was foreclosed, culminating in a conveyance of the property to the plaintiff therein.
At a trial of this case to the court, without the intervention of a jury, upon the claims of title above made, a general finding and judgment thereon was entered for defendant. Plaintiff brings error.
From the foregoing statement of facts, it appears that the only question necessary to the determination of this case is the strength of the opposing titles. Plaintiff claims under his sheriff’s deed, based upon the attachment proceedings in the case of Kemp against Burdicks, and also under his sheriff’s deed, based upon the foreclosure of the mortgage made by the Burdicks to the Topeka Commercial Security Company, and by that company assigned to and foreclosed by the Rhode Island Mortgage and Trust Cempany. The defendant holds possession under its sheriff’s deed based upon the mortgage given by the Burdicks to secure the original purchase-money. Which has the better right to the property ?
As to the strength of the chain of title terminating in the sheriff’s deed based upon the foreclosure of the mortgage made by the Burdicks to the Topeka Commercial Security Company, and by that company transferred to, and foreclosed by, the Rhode Island Mortgage and Trust Company, little need be said. The instrument itself, by its express terms, was made subservient to the rights of defendant. Such rights were protected by the decree entered in the action brought to foreclose that mortgage. All the parties to this action were parties to that action, and are-concluded by the decree entered therein.
As to the chain of title derived from the deed based upon the attachment proceedings, the law is equally clear. By the execution of the writ of attachment there was seized, not the entire property in this case, because the Burdicks did not own the entire property, but there was seized only the interest' of the Burdicks in the property. Kemp, the attaching creditor in that action, was not a purchaser for value, entitled to protection because buying upon the strength of a clear record title in the Burdicks. He was simply a diligent creditor laying hands upon what property of his debtors he could find subject to seizure. Whatever equity his debtors possessed in the property passed by the sheriff’s deed based upon the attachment-proceedings, the purchaser at the sale under such proceedings took no greater rights in the property than the Burdicks possessed. This equity was the-interest of the Burdicks in the property after payment of the prior purchase-money mortgage to the defendant. (Swarts and others v. Stees and Bryan & Hardcastle, 2 Kan. 236, 85 Am. Dec. 588; Harrison & Willis v. Andrews, 18 id. 535; Hubbard v. Ogden, 22 id. 671; Sheldon v. Pruessner, 52 id. 593, 35 Pac. 204.). That mortgage has now been foreclosed, and the rights-thereunder merged in the sheriff’s deed under which defendants justify their possession of the property. The defendants have the better title to the property.
The judgment of the district court is equitable, just, and right. It meets our approval, and is affirmed.
All the Justices concurring. | [
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Per Curiam:
This action was brought by Steiner against Liggett, as mayor of the city of Oswego, to recover damages for malicious prosecution. A demurrer to the amended petition was sustained. Plaintiff electing to stand thereon, judgment for costs was entered against him.
An examination of the petition to which the demurrer was sustained shows that plaintiff was engaged in a business or profession called “magnetic, psychic and natural healing” in said city. There was enacted an ordinance of the city providing for the payment of a license-tax by all those engaged in certain lines of business, occupations and professions therein enumerated, and a punishment prescribed for violation. Among other things, the' ordinance provides as follows:,
“A license-tax is hereby levied upon all persons, firms or corporations engaged in, or carrying on, in the city of Oswego, any of the following callings, trades, professions, occupations or businesses, to wit: Itinerant physician, surgeon, or oculist, or magnetic, psychic or other healer, five dollars per day.”
Plaintiff was arrested for failure to pay the amount and ' procure the required license upon complaint made by defendant, as mayor of the city. The prosecution, however, was not pressed against plaintiff, but was dismissed without trial. Thereupon this action was brought. The validity of the ordinance involved is no longer an open question. It was expressly upheld by this court in In re Martin, 62 Kan. 638, 64 Pac. 43. It was there said:
“ License-taxes, whether for the purpose of regulation or revenue, or both, may be legally imposed, and the amount, as well as the method of imposing such taxes, is left to legislative discretion and judgment.
“A large discretion must be accorded to the municipal authorities, who know the needs of the municipality, the extent of the protection afforded to persons carrying on business within its limits, and the expense of providing such protection, and courts should not interfere except in cases of a gross abuse of such discretion.”
We think there was statutory authority conferred upon the city to require a license-tax from any one engaged in the calling or profession followed by plaintiff. Conceding the validity of the ordinance involved, we are convinced, from a reading of the petition in this case held demurrable, that it alleges such a state of facts as shows there was probable cause for the arrest of plaintiff, and the demurrer thereto was properly sustained.
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The opinion of the court was delivered by
Smith, J.:
This was an action for divorce and alimony. The appeal is by the defendant from an intermediary order.
The facts so far as they affect this appeal are as follows: Plaintiff began in Sedgwick county, Kansas, an action for divorce from her husband. In her petition she charged extreme cruelty and gross neglect of duty. She described land owned by defendant in five Kansas counties and in Oklahoma and alleged he was worth in excess of $200,000 and that unless restrained he would dispose of it. On the date the petition was filed the trial court made an order restraining the defendant from disposing of his property and directing him to pay temporary support money and attorney fees in the amount of $500. The petition was filed on April 14, 1949, and a summons issued directed to the sheriff of Pratt county. The record discloses that the sheriff’s return on this summons shows it was served on April 18, 1949, by leaving a copy in the mail box at his usual place of residence. A certified copy of the order for temporary support money was returned and filed with the summons. On June 1, 1949, counsel for defendant filed a motion to quash this service on the ground that at the time it was had and for a long time prior thereto and at the time the motion was filed defendant was a resident of Arkansas. On June 3, 1949, plaintiff commenced proceedings for service by publication by filing an affidavit that she was unable to obtain service on defendant in Kansas because he had departed the state and was residing at a given address in Arkansas. On the same date counsel for appellee caused a foreign summons to be issued for defendant to the sheriff of Garland county, Arkansas. The sheriff’s return on this summons shows it was served on defendant on June 6, 1949. The publication notice specified the answer day as July 16, 1949. On April 16, 1949, notice of lis pendens was duly recorded in the five Kansas counties where the defendant owned the land. On June 17, 1949, affidavit in attachment was filed by the plaintiff and the sheriff’s returns show all the lands described in the plaintiff’s petition were attached. On June 29, 1949, on the application of the plaintiff a receiver for all defendant’s land was appointed. On June 29, 1949, alias summons for defendant was issued to the sheriff of Pratt county. The return of the sheriff shows personal service on defendant on June 30, 1949.
In due time defendant answered setting up as a defense first a judgment in an action in the district court of Pratt county between these same parties, which he claimed was res judicata of any claims of defendant for alimony or any right, title or interest in his property. He also set up in his answer that he had on May 12, 1949, filed an action for divorce from plaintiff in Arkansas, service had been had on plaintiff and on July 5, 1949, an absolute decree of divorce had been granted him. He alleged that this judgment was res judicata of all issues raised by plaintiff in her petition.
The plaintiff replied denying that either one of the above proceedings were res judicata of her rights in this action.
The action proceeded to trial on its merits. The defendant introduced all the files in the Pratt county case showing the final judgment. Defendant then testified that he moved to Arkansas on January 10, 1944 and that he bought a house there and furnished it. There was then some testimony about defendant’s property and some transactions with his children. He then offered in evidence authenticated copies of his divorce proceedings in Arkansas and the decree entered on July 5, 1949. Copies of sections of the Arkansas statutes were introduced. The files showed an affidavit sworn to by defendant in his action asking for a warning order in conformity with those statutes, the appointment of an attorney to defend for the plaintiff in this action, the receipt by her of a letter advising her of the action and finally the service on her, her nonappearance, that the plaintiff was a resident of Arkansas and the absolute decree of divorce.
The Arkansas action was brought on May 12, 1949, and he claims service on the defendant on that date. Final judgment was entered on July 5, 1949.
It will be noted the defense filed in this action in the district court of Sedgwick county was the Pratt county judgment and the Arkansas judgment. Naturally one of the important points raised at the trial was whether full faith and credit was to be given the Arkansas judgment. Or stated another way, was service had in the Arkansas action before good service was had in the Kansas action? Such being the case, the trial court after hearing the evidence wrote to counsel for both sides a letter in which the court pointed out the sequence of events about as they have been detailed, then stated:
“Therefore at the time the Arkansas decree was obtained, which did not cover any personal or property rights of the parties but only undertook to decree a divorce, there was an actual case pending in the State of Kansas. For that reason I do not believe there is any requirement for this Court to give full faith and credit to the Arkansas decree as such.”
The trial court’s letter then continued as follows:
“It has occurred to me that I do not have any showing made as to what the receiver has done in this matter in preserving the assets, neither do I have any particular request as to attorney fees, and since what I have above stated is my attitude on the Arkansas decree, such might be a sufficient final order to be appealable, and if counsel wishes to appeal that phase of it they would prefer to do that before any further decision on my part. What I have so far submitted to you in the above opinion is merely a memorandum opinion and I am not at this time determining any alimony, attorney fees, receiver fees, or other cost and expense.
“I would like to hear from you regarding when you would like to present the matter of attorney fees and receiver fees and cost and expense. If you can agree oh a date other than from tire 1st to the 12th of May inclusive, I think I can arrange to hear you, unless counsel decides to appeal from the memorandum judgment above set out.”
This letter was subsequently incorporated into the journal entry. The trial court made no other findings or' conclusions and entered no further judgment. In due time the defendant filed a motion for a new trial because of abuse of discretion, erroneous rulings, decision contrary to the evidence, the court misinterpreted the evidence and disregarded the evidence. At the same time he filed a motion asking the trial court to set aside its finding that personal service was obtained on him. These motions were both overruled — hence this appeal.
The specifications of error are that the trial court erred in holding that the Arkansas decree was invalid and not entitled to be given full faith and credit.
The defendant states the question involved to be, should a district court in Kansas in a divorce action give full faith and credit to a decree of divorce given by a chancery court in Arkansas in an action between the same parties where the latter action was commenced and constructive service obtained after the filing of the Kansas action but before service of summons in the Kansas action and proceeded to judgment before the Kansas action was tried? Defendant then proceeds to answer the above question in the negative under the head of three different legal propositions.
We are confronted, however, at the outset with the question, whether the order from which the appeal was taken is appealable. Our jurisdiction to reverse, vacate or modify an order of the district court is found in G. S. 1949, 60-3302. That section provides, in part, as follows:
“The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First — A final order. Second — An order that discharges, vacates or modifies a provisional remedy; or that grants, refuses, vacates or modifies an injunction; or that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer. Third — An order that involves the merits of an action, or some part thereof. Fourth — An order appointing a receiver, or any order refusing to revoke, modify or change any order appointing a receiver, but a failure to appeal shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.”
If this order comes under any of these provisions it is the first one. Therefore, the question was this a final order? G. S. 1949, 60-3303, defines that term. That section provides, in part, as follows:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment.”
A good question to ask is whether a decision by us on the appeal would end the progress of the cause or would further action be necessary. We know that if we should affirm the lower court further action would be necessary since the trial court has never passed on whether a divorce should be granted plaintiff nor has it made any disposition of the property rights of the parties. Just what would be the court’s holding on these questions, we have no idea. What would be the effect if we should reverse the lower court? The answer to this question requires an examination of the letter incorporated in the journal entry. When we do this the conclusion is inescapable that what the court had in mind was that the service of summons in Pratt on April 18, 1949, where the sheriff’s return was, that he had served it by leaving a copy at the usual place of residence of the defendant, was good service. The trial court in its letter proceeded to treat what happened after that date in Arkansas as of no consequence. No other questions seem to have been treated or considered by the trial court. In fact, the trial court in its letter expressly confined its ruling to that one matter. Granting for the sake of argument, but not deciding, that the trial court was wrong in such decision, there would still remain other questions to be decided before a final decision on the action could be reached. For instance, defendant argues that G. S. 1949, 60-1518, does not reheve the trial court from giving full faith and credit to the Arkansas judgment. This question is not treated in the letter of the trial court. Whether it was presented to the trial court we have no way of knowing, neither do we have any way of knowing what would have been the trial court’s ruling had the question been presented. Another instance, defendant argues that G. S. 1949, 60-1518, violates Section 2 of Article IV of the Constitution of the United States. The question was never presented nor ruled on by the trial court. For another instance, the plaintiff argues here that should we hold the trial court erred in its findings that the service of April 18, 1949, was good, still there were defects and failures in the constructive service in the Arkansas action sufficient to cause that judgment to be of no effect and not entitled to full faith and credit. These three questions would all remain, in this action even should we reverse the lower court.
The order was but little more than would amount to a ruling on the introduction of evidence had plaintiff objected to the introduction of the proceeding and files in the Arkansas action. It was not a final order and, therefore, not appealable.
The appeal in Case No. 38,164 is dismissed.
The above disposes of the appeal in Fincham v. Fincham, No. 38,164.
There remains appeal No. 38,202 in the same action. That appeal is from an order discharging a receiver. The plaintiff had procured the appointment of a receiver. He performed some duties. Subsequently the defendant went into another division of the district court of Sedgwick county and obtained an order discharging him and terminating the receivership. The plaintiff has appealed from that order.
The application for the appointment of a receiver was made on June 29, 1949. It recited the facts concerning the defendant and his property about as they have been stated already in this opinion and that there was growing wheat on some of this land and unless a receiver was appointed defendant would convert it into money and take it out of Kansas.
A receiver was appointed on June 29, 1949. On October 4, 1949, the defendant filed a motion to discharge the receiver, alleging that proper notice had not been given, the order was procured wi’ongfully, maliciously and without sufficient cause, allegations in the application were untrue, the plaintiff’s rights were protected and plaintiff knew it was impossible for defendant to remove his property from the state.
The trial court heard the application. The journal entry following this hearing recited that it had been stipulated in open court between the parties that the receiver be authorized to sell on the open market 445.86 bushels of wheat, which were in his possession, and the proceeds be deposited in a bank. The court further found that the defendant objected to the allowance of a receiver’s fees or expense; that the report of the receiver should be confirmed. The court further ordered that defendant pay plaintiff’s attorney $500, sell the 445.86 bushels of wheat and the receiver be reimbursed for expenses in the amount of $166.72.
The divorce action was finally decided on May 31, 1950. On June 9, 1950, notice of appeal was filed. On June 21, 1950, an oral application to discharge the receiver was made by defendant. The judge who had tried the issues in the divorce case was absent and this motion to discharge was heard by the judge of another division.
Counsel for plaintiff were present at the hearing on this motion and pointed out that the case in chief had been appealed; that the judge who had heard the divorce action had specifically retained jurisdiction of the receivership. Counsel argued that as a matter of fact the judge hearing the motion to discharge the receiver was usurping the rights of the judge who appointed the receiver in the first place.
The hearing appears to have consisted mostly of a colloquy between the trial judge and counsel for both sides. At least no evidence is brought here. At its conclusion''the trial court found that there is no reason why the said receivership should be continued and that said receivership be and the same is hereby terminated; and that said receiver heretofore appointed in the above entitled action be and he is hereby discharged and ordered to file his final report and final accounting with this court.
The plaintiff appealed. Her specifications of error are that the trial court erred in ruling on matters which had been specifically retained by another division, the appeal in case No. 38,164 from the judgment refusing full faith and credit to the Arkansas decree and from all other appealable orders divested the district court of jurisdiction to rule on the matter of the discharge of the receiver, the trial court, division No. 1, erred in usurping the authority of division No. 3, that the trial court’s division No. 1, erred in discharging the receiver.
The plaintiff calls our attention here to G. S. 1949, 20-603 and 20-604. Those sections have to do with district courts in counties of 118,000 population where there are four divisions of the district court. They provide as follows:
“WHEN JUDGE ABSENT OR DISQUALIFIED. In case of sickness, or absence or disqualification of the judge of any division, the judge of either of the other divisions may hold court in place of such absent or disqualified judge, and do and perform any act or duty pertaining to such division.” (G. S. 1949, 20-603)
“EXERCISE OF POWER OF APPOINTMENT. All powers of appointment, not herein provided for, which are delegated by law to the judge of the district court, shall be exercised jointly by the judges of the divisions, or a majority thereof: Provided, however, That in all cases pending and in proceedings before any division, or the judge thereof, the appointment of appraisers, receivers, referees and other appointments with reference to such cases or proceedings shall be made by the judge of such division.” (G. S. 1949, 20-604)
Plaintiff also refers to rules promulgated by the judges of the four divisions of the district court in Sedgwick county. These are, in part, as follows:
“The Clerk of the Court shall docket all cases filed in his office by rotation in the several divisions of the court, in the order in which they are filed. (20-605 R. S. 1935).
“When a case is thus assigned, the judge to whom it is assigned shall have full charge of the case until the issues are made up, except during jury sessions, during which time prehminary and emergency matters shall be handled as hereinafter provided.”
“Other cases on the day’s docket shall be assigned in order to the first civil jury division which may be free. Provided however, that in any case in which evidence shall have been previously introduced, followed by a dismissal by plaintiff without prejudice, and subsequent refiling of the case, the case as refiled shall be returned to the division in which it was once partly tried.”
At the hearing of the motion to discharge the receiver there appears to have been no contention but that notice of lis pendens had been filed in five Kansas counties on 3,600 acres of wheat land belonging to defendant; that the receiver had $2,500 in rents; that defendant was in court for all purposes; that when the receiver was appointed defendant was out of the state and the only real necessity for a receiver was to harvest and sell the wheat crop of 1949. The trial court remarked at the time of the hearing of the motion to discharge that the above reasons for the receivership had ceased to exist.
The rule that the court, which starts out with the trial of a matter, must hear all motions and applications in it until the cause is finally concluded is not inflexible. There must of necessity be a provision for consideration by another court of emergency matters requiring attention when the judge of the division, who has been trying the matter, is not available. Such is contemplated by a part of rule 8 of the district court as follows:
“Motions and demurrers will be heard as follows: in Division No. 1 on the first and third Thursdays; in Division No. 2 on the first and third Fridays; in Division No. 3 on the second and fourth Thursdays and in Division, No. 4 on the second and fourth Fridays, of each month. Provided, however, that during the trial of jury cases all motions and demurrers will be heard on the above designated days by the preliminary or assignment judge, and in the months of July and August they will be heard by the prehminary judge.”
The statement is made in the brief of defendant and not contradicted that on June 21, 1950, the judge of division No. 1 was acting as a preliminary judge of the district court of Sedgwick county. While the motion to discharge was an oral one and less notice than the rules required was served, it does not appear that counsel objected to the hearing on that account. A portion of G. S. 1949, 20-603, provides for hearings such as this. It is there provided that:
“In case of sickness, or absence or disqualification of the judge of any division, the judge of either of the other divisions may hold court in place of such absent or disqualified judge, and do and perform any act or duty pertaining to such division.”
There seems to be no contention but that the judge of division No. 3 was absent, nor that the matter of the discharge of the receiver was an emergency matter. It was not a case of a litigant rushing into another division when the judge who had been hearing his matter was available. (See, also, Bank v. Murray, 84 Kan. 524, 114 Pac. 847.)
Plaintiff does not argue here his point that the appeal of the case in chief divested the trial court of jurisdiction to hear a motion to discharge the receiver. Suffice it to say, however, the appeal was not from any order with reference to the receiver. The general rule is laid down in 4 C. J. S Appeal and Error, Section 620, as follows:
... In a case where the appointment of a receiver is a matter ancillary to the main proceedings, the court may, after appeal has been taken, hear and determine a motion for the discharge of the receiver; but if the appeal is from the decree appointing the receiver, the trial court cannot remove the receiver pending the appeal.”
In view of the facts already set out in these two opinions that defendant has some $200,000 worth of land, against all of which a notice of lis pendens has been filed and that he is now subject to the jurisdiction of the district court of Sedgwick county, we cannot say the trial court abused its discretion in terminating the receivership.
The judgment in appeal No. 38,202 is affirmed.
Thiele, J., concurs in the result. | [
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Per Ouriam:
The defendants in error commenced this action in ejectment in the lower court and recovered damages in the sum of ninety-five dollars, resulting to them by the possession and occupancy of the land in question- by the defendant below. Defendant below prosecutes error.
The judgment obtained against defendant is the total amount involved in the controversy, and that amount does not exceed tbe sum of $100. There is no certificate of the district judge showing this to be one of the excepted cases. Therefore this court has no jurisdiction to examine the alleged errors.
The cause is dismissed. | [
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The opinion of the court was delivered by
Pollock, J.:
This was an action by Cora Arnold against the Metropolitan Street-railway Company to recover damages for the wrongful death of her husband, James Arnold, alleged to have been caused by the negligence of defendant company. There was a trial of the case to the court and jury. A general finding alone was returned by the jury, which was approved by the court and judgment entered thereon. To reverse this judgment defendant brings error.
The principal ground of error urged and relied on is that the undisputed evidence found in the record shows the deceased to have been guilty of such contributory negligence as to bar a recovery for his death. Much of the material evidence is printed in the briefs and argument of counsel. From the evidence it is gathered that the deceased, about sis o’clock in the evening of October 9, 1900, was traveling north on the east side of Seventh street in Kansas City, riding a bicycle at a rapid rate of speed. For' a distance of about three hundred feet before reaching the intersection of Seventh street and Central avenue in said city, Seventh street inclines about fourteen feet. It is smoothly paved with asphalt. As deceased descended this incline á car was passing on defendant’s line of road from west to east on a surface track along Central avenue at the speed of about eight miles per hour. The relative positions of the deceased and the car were such that, had both proceeded at the same rate of speed they were traveling and in the same direction, the deceased would have collided with the car at the intersection of the street and avenue. The car did not stop at Seventh street. There is a conflict in the testimony as to whether the gong was sounded or other warning given of the approach of the car to Seventh street. A large two-story building, eighty by one hundred and twenty feet, stands on the corner lots southwest of the intersection of Central avenue and Seventh street, cutting off from view the approach of any one traveling north on Seventh street from one traveling eastward on Central avenue. However, the deceased could be seen from the car some thirty or forty feet before he reached it.
Central avenue and Seventh street are much used by the traveling public. East of Seventh street it is paved with blocks and quite rough. The tracks of the railway are laid above the surface of the street. When deceased reached Central avenue he turned eastward parallel with the running car. A few feet east of Seventh street, after the bicycle had passed over from the smooth asphalt pavement upon the rough block pavement, from some cause the deceased was thrown from his bicycle in front of the moving car, carried some distance, and killed. There was evidence tending to show that he was attempting to. pass over the street-car track in front of the moving, car; that the bicycle wheels struck the rails of the street-car track, slipped thereon, and threw deceased in front of the car. While such is the probable fact, the evidence is not wholly undisputed or entirely free from doubt. Upon this state of the record, it is contended that the verdict is entirely without evidence in its support, and that it clearly appears that deceased was guilty of contributory negligence in bringing on the collision which terminated in his death, and that this is an end of the controversy.
As has been seen, there are no special findings of fact in this record. We have alone the general finding and judgment thereon. In support of the judgment rendered, it is urged that, if reasonable minds might arrive at different conclusions from all the testimony in the record as to the contributory negligence of the deceased, the proximate cause of the injury-was a question of fact for the jury to determine. It is further insisted that the action is for the wrongful death of the deceased, not for negligently causing the collision. Therefore, if the judgment finds support in the evidence upon any theory of the law embraced within the issues made by the pleadings, it must be-affirmed. In support of this position, it is argued that, although this court may determine from an examination of the evidence that the negligence of deceased contributed to the collision between the car and deceased, yet, if the motorman in control of the car saw deceased in a position of danger, or by the exercise of reasonable diligence should have seen him in such position in time to stop the car before killing him and thus avoid the tragedy, the defendant is liable. This exception to the general rule as. to the effect of con- tributary negligence, once established upon a right of action, is well supported by authority. In the case of Inland & Seaboard Coasting Co. v. Tolson, 189 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270, Mr. Justice Gray, delivering the opinion of the court, said :
‘ ‘ The other instruction was in these words : £ There is another qualification of this rule of negligence, which it is proper I should mention. Although the rule is that, even if the defendant be shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of contributory negligence which may have had sohaething to do in causing the accident; yet the contributory negligence on his part would not exonerate the defendant, and disentitle the plaintiff from recovering, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff’s negligence.’
“The qualification of the general rule, as thus stated, is supported by decisions of high authority, and was applicable to the case on trial. Radley v. London & Northwestern Railway, 1 App. Cas. 754 ; Scott v. Dublin & Wickloff Railway, 11 Irish Com. Law, 377 ; Austin v. New Jersey Steamboat Co., 43 N. Y. 75, 82; Lucas v. Taunton & New Bedford Railroad, 6 Gray, 64, 72; Northern Central Railway v. Price, 29 Md. 420. See, also, Williamson v. Barrett, 13 How. 101, 109.’’
In Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429, 12 Sup. Ct. 679, 36 L. Ed. 485, the same doctrine ivas announced in the opinion by Mr. Justice Lamar, as follows:
“Without going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted and most reasonable rule of law applicable to actions in which the defense is contributory negligence may be thus stated : Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if - the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies v. Mann, 10 M. & W. 546), that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence have avoided the consequences of the injured party’s negligence. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, and cases cited; Donohue v. St. Louis &c. Railroad, 91 Mo. 357; Vicksburg &c. Railroad v: Patton, 31. Miss. 156 ; Deans v. Wilmington &c. Railroad, 107 N. C. 686 ; 2 Thompson on Negligence, 1157 ; Cooley on Torts (1st ed.), 675.”
The American and English Encyclopedia of Law (2d ed.), volume 7, at page 387, states the doctrine as follows :
“And upon the principié that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other, after its occurrence, in time to foresee and avoid its consequences, then such party is held to have notice ; and his negligence in not discovering the negligence of fhe other, under such circumstances, is held the sole proximate cause of a following injury.” (Citing O’Keefe, Admx., v. The Chicago, Rock Island & Pacific Railroad Co., 32 Iowa, 467 ; Morris v. C. B. & Q. R. Co., 45 id. 29 ; Purinton v. Railroad Co., 78 Me. 569, 7 Atl. 707 ; Locke v. First Div. St. Paul & Pacific Railroad Co., 15 Minn. 350 [Gil. 283] ; Brown v. Lynn, 31 Pa. St. 510, 72 Am. Dec. 768, and other cases. See, also, upon this subject, Turnbull v.New Orleans & C. R. Co. (C. C. A.), 120 Fed. 783 ; McGuire et al. v. Railroad Co., 46 La. Ann. 1543, 16 South. 457 ; Lampkin v. McCormick, Receiver, etc., 105 La. 418, 29 South. 952, 83 Am. St. Rep. 245 ; Louisville & N. R. Co. v. Brown, 121 Ala. 221, 25 South. 609.)
In the case at bar the deceased was not a trespasser upon the property of the defendant company. The. street where the collision occurred w,as much used by the traveling public. In such case, the reasonableness of the exception made to the general rule of contributory negligence, and the wisdom of the rule as declared in the foregoing authorities, commends itself to our judgment. Admitting, therefore, without deciding, that the deceased was guilty of contributory negligence in bringing on the collision between himself and. the car, and applying the exception to the general rule as to the effect of contributory negligence' upon the right of recovery stated, it remains to be seen whether the question raised is within the issues, and whether there 'is sufficient evidence found in the record to support a judgment based upon such theory. Mr. Heim, a witness for plaintiff, testified as follows :
Ques. Now, just tell the jury what you saw from' that on as they came together ? Ans. Well, as he turned the corner the wheel struck the second rail and slipped a little ways and the man went under. He clung to the fender with both his hands.
“Q. He did what? A. He clung to the fender with both his hands, like this (showing).
“Q,. Did the wheel go under the fender or on top of the fender? A. It just slid along in front-of it.
“ Q. The wheel was pushed along in front of the car, was it ? A. Yes, sir.
“Q. And the man had hold of the fender with his hands ? A. Yes, sir ; with both hands in front of him this way ( showing).
“Q,. And which way was his body. A. His head was to the north and his feet to the south.
“Q,. And he held on to the fender. A. Yes, sir.
“Q. And how far did it push him that way? - A. Pushed him along I think about seventy-five feet, I should judge.
“Q. And he clinging to the fender? A. Yes, sir, I think it was about that far.
“Q. And then he finally went under the fenders? A. Yes, he finally went under.
“Q. You saw where the T*ody was thrown out, did you ? A. The body was thrown out right about the two front wheels of my buggy and lit right alongside of my horse. ...
“Q. How far did that car run after dragging him about seventy-five feet ? A. I did not look at that time to see the car, because I had my hands full with the horse.
‘ ‘ Q. But you were there looking right at it and saw the distance he was dragged? A. Yes, I seen that part of it because he was coming right toward me.
“Q,. And you saw him hang on for seventy-five feet? A. He hung on until he went under.
“Q. You think that was about seventy-five feet? A. I think about seventy-five feet, I should judge.”
There is other testimony in the record also tending to show that the dead body of deceased was thrown from under the car in front of the rear wheels about seventy-five feet from the point of collision. The car ran from thirty to forty-five feet after the body was thrown from under it before it was stopped. Neither the conductor nor the motorman testified in the case. There was evidence tending to show that the motorman saw, or could have seen, the deceased before he left Seventh street and at, all times thereafter; that there was no obstruction to prevent such view. It was also shown that the speed of the car in question' had been slackened for.the purpose of turning a curve about two hundred feet west of Seventh street, from fifteen miles per hour to four miles per hour in a distance of one hundred and twenty-five feet. At the conclusion of the plaintiff’s testimony a request to amend the petition was granted, and the following amendment made :
“The defendant was guilty of further negligence in this, to wit: That the motorman in charge of said car which struck said James Arnold, deceased, saw, or by the use of reasonable diligence would have seen, said deceased, James Arnold, in a dangerous position, and said motorman, after seeing or by the use of reasonable diligence would have seen said James Arnold in said dangerous position,.had sufficient time to have stopped said car and thus avoided the accident and saved the life of said Arnold.”
Instruction No. 12 shows that the court presented this view of the case to the jury.
Conceding the contributory negligence of deceased in the first instance, can it be said several minds might not reasonably arrive at different conclusions from the evidence respecting the ability of the motorman to stop the car after he saw, or in the exercise of reasonable diligence should have seen, the deceased in the position of danger before he was killed ? We think from an examination of the testimony that, conceding the contributory negligence of plaintiff in the first instance, there was still sufficient evidence of defendant’s negligence in causing the death of deceased to require the submission of the case to the jury, and that the verdict rendered cannot be disturbed for utter want of evidence in its support.
There are other errors assigned. We have examined them. They are not well taken, nor are they of sufficient importance to merit separate consideration.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was^delivered by
Mason, J. :
This was an action brought by L. O. True to enjoin the enforcement of a judgment rendered against him by a justice of the peace and transferred to the district court by abstract, and to quiet the title to his real estate against the lien of such judgment. The district court, after a trial, denied plaintiff any relief and he brings the case here for review. •
The facts as disclosed by the pleadings, evidence and findings are as follows: True was sued June 1, 1896, with another defendant, Johnson, before John T. Sims, a justice of the peace. Both defendants were served with summons. On the return-day True did not appear. The case was continued by agreement of the plaintiff and the other defendant to June 22, when it was again continued to June 29. At this-time the case was dismissed as to Johnson and continued as to True to July 6, at nine o’clock. Up to this time True had made no appearance. On July 6, at nine o’clock, he appeared at the office of the justice and waited for an hour. Neither the plaintiff nor the justice appeared. The justice was absent from his office during the whole hour, but afterward returned and made and entered on his docket an order continuing the case to a later date, True not consenting to, or having any notice of, such continuance, but' from that time on paying no attention to the matter. A judgment was finally entered by the justioe on July 22, 1896, in ■ accordance with plaintiff’s bill of particulars, nothing having been filed by True. No execution was ever issued from the justice’s court. On May 29, 1901, the' successor in office of the justice who rendered the judgment filed in the district court an. abstract of the judgment which was defective in that it omitted to specify that the judgment was rendered in favor of plaintiff and in that the form of the certificate was as follows : “I hereby certify that the foregoing is a full and correct abstract of the judgment rendered by me in the suit above entitled. — James Sweigart, justice of the peace, successor of John T. Sims.” On the same day an execution was issued by the clerk of the district court upon this abstract. On June 16, 1901, True brought this action. On November 7,1901, on motion of Sweigart, the justice of the peace, and of the owner of the judgment, the district court made an order giving leave to Sweigart to amend the abstract, and it was amended so as to show that it was rendered in favor of the plaintiff and by Justice Sims.
Under the authority of Olson v. Nunnally, 47 Kan. 391, 28 Pac. 149, 27 Am. St. Rep. 296, and cases there cited, the justice of the peace lost jurisdiction of the case against True on July 6, 1896, and the judgment thereafter entered was void, and subject to collateral attack. It is further urged by plaintiff in error that the abstract of the judgment originally filed in the district court was a nullity, and could not sustain an execution ; and that the attempted correction was not effective, because made ex parte and after the judgment had become dormant by the lapse of more than five years without a valid execution. In Hamilton v. Thomson, 3 Kan. App. 8, 44 Pac. 437, it was held, reversing the district court of Shawnee county, that an abstract of a- judgment was void because certified to by the successor of the justice who rendered it in the very words of the statute, as in the case at bar, the result being that the certificate, literally construed, seemed to mean that the judgment was rendered by the officer signing it, instead of by his predecessor. The reasoning of the dissenting opinion of Judge Garver in that case presents a strong argument against the position taken by the majority of the court-. But it is unnecessary to consider in detail the various attacks upon the proceedings by which a formally sufficient abstract *was finally placed upon record, or the effect upon an outstanding execution of a correction of the abstract. The original judgment being void,. subsequent defects, however serious in themselves, can add nothing to the force of plaintiff’s contention.
The petition contained no allegation that plaintiff did not owe the debt upon which the judgment was rendered, and the trial court doubtless construed the testimony on this point as a substantial admission of the justice of the original claim. The question therefore presented is whether, under the circumstances stated, even a void judgment can be enjoined without a showing, or at least a bona fide claim, of a meritorious defense. The conflict t of authorities on this question is illustrated by the following quotations :
“According to some decisions, the issuance of the injunction is not dependent upon the question whether the complainant, shows a defense to the action wherein the judgment is sought to be enjoined. The great-weight of authority, however, is to the contrary. Equity will not interfere to relieve against a judgment, obtained without service of process, unless the judgment defendant has a meritorious defense to the action in which such judgment was obtained. A condition precedent'required by courts of equity before they will enjoin the execution of such judgment is that if relief is granted, a differeüt result will be attained than that already decreed by the void judgment.”
“The applicant for an injunction must go further and show both in averment and proof that he had and has a defense good in law, and in what that defense consists. The court must be put in possession of the facts, where the sufficiency of the defense is an indispensable element of the issue.” (16 A. & E. Encycl. of L., 2d ed., 386, 387.)
“A distinction between void and voidable judgments for purposes of equitable relief is drawn by many of the cases. A bill which alleges matters amounting only to errors and irregularities in obtaining jurisdiction does not state a ground for relief. On the other-hand, where it appears from the bill that the judgment is wholly void for want of jurisdiction over per son or subject-matter, or for other reasons, a good cause of action exists in some states on that ground alone. In these states allegations which show a defense to the indebtedness, and which negative the existence of a remedy at law, are immaterial.”
“The contrary doctrine, however, seems more in accord with the nature of equitable jurisprudence, which takes cognizance of the acts of the person rather than of the defects in a law judgment. Where it obtains, a bill grounded only on the invalidity does not state a cause of action, but the complainant is left to his remedy at law. That a bill may be sufficient, additional facts must be alleged from which it appears that the complainant has a meritorious defense to the action, and is without legal remedy through no negligence or fault on his part. It must also appear that, in fact, no notice of the action was had in time to move at law.” (11 Encyc. of Pl. & Pr. 1200, 1203.)
“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 may be enjoined without showing a defense' to the original action, but a large preponderance of the authorities hold that, 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.” (Tootle v. Ellis, 63 Kan. 422, 424, 65 Pac. 675, 88 Am. St. Rep. 246.)
See, also, Kendall v. Smith, ante, page 90, 72 Pac. 543, and cases there cited.
As indicated by these citations, the weight of author ity supports the proposition that in order to enjoin the enforcement of a void judgment plaintiff must show a valid defense, although there are many well-considered cases holding the contrary. In some states there are special variations of the rule. For instance, a plaintiff seeking relief against a void judgment in Iowa need not allege that he does not owe the debt, but if he admits that he does owe it he is denied relief. (Henkle v. Holmes, 97 Iowa, 695, 66 N. W. 910.) In Colorado he must plead that the claim against him is unjust, thereby showing his good faith, but he is not required to prove it, nor may the defendant traverse it. ( Wilson v. Hawthorne, 14 Colo. 530, 24 Pac. 548, 20 Am. St. Rep. 290.) Distinctions are also made based upon the character of the original,demand— whether liquidated or unliquidated — and upon the question whether the judgment defendant had actual notice of the proceedings against him. In Illinois the matter is controlled by legislation, yet the courts follow the general rule upon principle, apart from the statute. (Rogan v. Eads, 101 Ill. App. 509.)
In each of the Kansas cases above cited the judgment attacked was held only voidable. — not actually void. Therefore it was not necessary to the determination of either that it should be decided whether under any circumstances a judgment could be enjoined without a showing of a meritorious defense. Nor is such a decision necessary here. While the judgment involved is void because the justice lost jurisdiction, the invasion of the defendant’s rights in the matter was not as flagrant as though a judgment had been rendered without any pretense of service. He was regularly brought into court, but when the justice failed to be present at the time set he availed himself of the oversight, under the protection of a principle that although sound was somewhat technical, and thereafter paid no attention to the matter. Inquiry would readily have revealed to him the fact that a continuance of the case had been entered, good upon its face but ineffective in law because made after the loss of jurisdiction. He is not in the attitude of one against whom a judgment has been rendered without color of service and without any opportunity, in fact, by any exercise of diligence, to have had a hearing upon the merits. A somewhat similar distinction is discussed in connection with the general question involved in Massachusetts Benefit Life Ass’n v. Lohmiller, 74 Fed. 23, 27, 28, 20 C. C. A. 274, a suit to enjoin the enforcement of a judgment rendered without valid service. It was there said :
“If it be conceded that the complainant was not properly served, and that the judgment was voidable, or even void, that condition is not of itself sufficient to warrant interference; but an equity must be presented, aside from that bare circumstance, showing that the injured party was without knowledge, was taken by surprise, and had no opportunity, in fact, to obtain a hearing. So far as appears from the allegation of this bill, the complainant may have possessed full and timely information of all the proceedings, but refrained from making any motion, relying upon the assumed defect, and, if such were the fact, the remedies are legal only. Neglect of the opportunity which was then open for a hearing would bar equitable relief. . . . The bill is silent in another respect, of which these principles of equity generally require clear expression before relief can be extended. There is no impeachment of the cause of action upon which the judgment was rendered, nor suggestion of defense in whole or in part; and, for all that appears in the record, the policy of life insurance referred to in the bill, and set out in the answer, is an undisputed and matured obligation against the complain ant, and justly enforceable as adjudged. If that is the true situation, interference would serve only ‘the unworthy purpose of delaying, vexing and harassing suitors at law in the prosecution of their just demands,’ so pertinently denounced in Truly v. Wanzer, supra, 12 L. Ed. 88. The rule is invariable that equity will not enjoin a judgment procured through fraud or artifice unless the complainant can ‘aver and prove that it had a good defense upon the merits.’ . The authorities are not in unison in holding the same rule where the judgment was obtained without service of process, and where the defendant had no opportunity to be heard. In some jurisdictions it is maintained that the defendant will not be required to show a good defense in such case, the judgment being void, and the reasons therefor are variously stated, namely, that ‘there is no presumption in favor of the judgment creditor,’ and ‘neither reason nor sound policy'will require a defendant so imposed upon to try the merits of the cause on a petition in chancery to set aside the judgment’; ‘that the injury of which he justly complains is that a judgment was rendered against him without notice and without defense.’ (Blakeslee v. Murphy, 44 Conn. 188 ; Ridgeway v. Bank, 11 Humph. 528; Bell v. Williams, 1 Head. 229 ; Finney v. Clark, 86 Va. 354, 10 S. E. 569.) And in Dobbins v. McNamara, 113 Ind. 54, 14 N. E. 887, 13 Am. St. Rep. 626, and Magin v. Lamb, 43 Minn. 80, 44 N. W. 675, 19 Am. St. Rep. 216, the same view is held, but apparently grounded upon the rule which there governs in the law courts to open such judgments without inquiry into the merits. The preponderance of authority in the state courts is, however, the other way, and upholds the rule ‘ that equity will not interfere until it appears that the result will be other or different from that already reached’ (citing cases). . . . ‘No such'exception to the general rule appears to have found recognition in the practice of the federal courts, and its incorporation would not harmonize with the principle that equity will not enforce rights upon grounds which are wholly legal or technical, nor grant an injunction to stay proceedings •at law merely on account of any defect of jurisdiction •of the court.5 (2 Story, Eq. Jur. §898.) For the purposes of the case at bar, it is not necessary to determine whether a showing of .meritorious defense may not, under some circumstances, be dispensed with where the judgment was obtained without service, notice, or color of right, as it would even then be dis■cretionary with the court to require it before granting an injunction. But the exercise of sound judicial discretion would exact it here, for the reason that there was at least color of claim that due service had been made, that the complainant had notice, and that the ■cause of action is founded on a liquidated and prima facie demand.55
We hold that under the circumstances of this case plaintiff was not entitled to an injunction, for the reason that he not only failed to plead that he had a meritorious defense, but by his oral testimony justified a finding by the trial court that he in fact made no bona fide claim of a defense.
But plaintiff in error further contends that at all •events he was entitled to a decree quieting title to his real estate against the apparent lien of this void judgment, because this is a remedy given him by statute (Code, § 594, Gen. Stat. 1901, §5081), and therefore not subject to the equitable principle invoked by defendant. We do not think this contention, sound. Although authorized by statute,, this action is still an equitable one. The statute merely provides that under certain circumstances an action to quiet title may be maintained against claims that could not otherwise be barred by a decree because hot constituting clouds, and that in such cases the pleading may be general. An injunction against an illegal tax is a statutory action (Code, §253, Gen. Stat. 1901, §4700), and yet the relief explicitly given by the statute is only avail able afper a compliance with the rule of equity that the amount admitted to be due must be tendered. (Wilson, Treas., v. Longendyke, 32 Kan. 267, 4 Pac. 361. See, also, Pritchard v. Madren, 24 id. 486.)
The judgment is affirmed.
• All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This is a proceeding to reverse a judgment of the district court of Shawnee county granting a temporary injunction restraining the plaintiffs in error from enforcing the collection of a judgment obtained by them against the defendant in error by the consideration of L. G-. Disney, a justice of the peace of Topeka township, Shawnee county. The defendant was a railway corporation, and it appears from-the record that its principal office in Kansas was in Wyandotte county. It had a line of road running through Shawnee county, and had stations and station agents in Topeka, Tevis, and Berryton, in said county. The justice of the peace before whom the action was brought and who rendered judgment resided outside the city of Topeka. The summons was served on the defendant’s agent in' the city of Topeka. The defendant did not appear at the trial. It is claimed that the defendant was a resident of the city of Topeka when the summons was served, and that inasmuch as said city had a city court, it could not be sued in Shawnee county outside the city of Topeka; that judgment rendered against it by a justice of the peace in Shawnee county outside the city of Topeka on service made within the city of Topeka was without jurisdiction.
A determination of the question depends on the construction of section 5228, General Statutes of 1901, and its application to defendant. . This section reads :
“The jurisdiction of justices of the peace in civil actions shall be coextensive with the county wherein they may have been elected, and wherein they shall reside ; provided, that in any county in which a city court has been or shall be created, justices of the peace outside of the city wherein such court is located shall not have jurisdiction of cases in which any defendant resides in such city.”
Did the defendant reside in the city of Topeka within the meaning of that section ? The residence contemplated by the statutes is synonymous with domicile, and means that place where the habitation is fixed and permanent. If applicable to railroad companies at all, it could only apply to the home office where its general corporate business is conducted, not to its several stations maintained for the transaction of local business. Under the provisions of the section quoted, jurisdiction of justices of the peace is coextensive with the county wherein they may have been elected and wherein they may.reside. Section 4501, General Statutes of 1901, providing for service of summons on railroad or stage companies or corporations, reads :
“ Such process may be served on any local superintendent of repairs, freight agent, agent to sell tickets or station-keeper of such company or corporation in such county.”
It appears from this section that the legislature intended to confer upon a justice of the peace jurisdiction to issue original process to any part of the county in actions against such companies or corporations, and if the process should be served on any of the persons so designated within the county such court would then acquire jurisdiction of such company or corporation. This is special, and is controlling of the manner in which jurisdiction may be obtained of these corporations. As expressed by Chief Justice Kingman in M. K. & T. Railway Co. v. Crowe, 9 Kan. 496, 500 : “This statute makes a material change in the laws as to service of process on corporations, and so far as it makes such change supersedes the provisions of the General Statutes.”
It was conceded on the argument that if the original process had been served on the defendant’s agent at either of its other stations in Shawnee county, such service would have given the justice of the peace jurisdiction. If that be true, then the defendant was not within the provisions of the sSatute. The statute is a limitation upon the power of justices of the peace outside the corporate limits of a city possessing a city court to acquire jurisdiction of a resident of such city by any sort of process or service. 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. The defendant in error may have a residence in Kansas within the meaning of this section, but it can have but one; and if it can have such residence it must be in the city where its general offices are located and its corporate business conducted. It is not contended in this case that such general office was maintained in the city of Topeka. The theory advanced by the defendant in error would give it as many residences in Kansas as there are cities possessing city courts through which- its lines pass. Such a doctrine is not maintainable.
The following cases support the conclusion we have reached. In Jossey v. Georgia & Alabama Ry. Co., 102 Ga. 706, 28 S. E. 273, the court said:
“The business of a railroad corporation, because of its nature, must of necessity be conducted in places other than that fixed by its charter as the place of location of its principal office. While the latter place must be the point at which the corporation as a corporate entity resides, it is indispensable to its business that it shall be enabled elsewhere to establish offices of a purely administrative character; and a distinction must be taken between the principal office of a corporation proper and those administrative offices. ))
In Galveston &c. Railway v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248, the court, in discussing the question of residence of a corporation, said:
‘ ‘ These cases must be regarded as establishing the doctrine that a domestic corporation is both a citizen and an inhabitant of the state in which it is incorporated ; but in none of them is there any intimation that, where a state is divided into two districts, a cor poration shall be treated as an inhabitant of every district of such state, or of every district in which it does business, or, indeed, of any district,other,-than that in which it has its headquarters, or such offices as answer in the case of a corporation to the dwelling of an individual.”
A similar question arose in the case of Thorn v. Central Railroad Co., 26 N. J. 121. An action was brought in Somerset county, where the defendant railroad had an office and did business. Its general offices were in Essex county, and the question was whether the defendant was a resident of Essex or Somerset county. The court said :
“The only question is whether a railroad corporation can be said to reside, within the meaning of the act of the legislature, in as many counties as it happens to traverse with the road, or whether, if it can properly be said to have any residence, that residence is not to be taken to be in the county where it keeps its principal office of business ? . The- point in question here has not been ruled in this state. But the course of legislation on the subject of corporations would seem to indicate that they are to be considered as having a residence where their office or place of business is located.”
It was there held that the residence of the corporation was in Essex county.
A similar question arose-in Illinois upon the taxation of property of a railroad company in Sangamon and Morgan Railroad Co. v. County of Morgan, &c., 14 Ill. 163, 56 Am. Dec. 497. In that case the principal office of the company was in Sangamon county; it had certain of its rolling-stock and other property in Morgan county. The officials of Morgan county undertook to tax this personal property, and the question arose whether it was taxable in the county of Morgan, where it was located, or in the county of Sangamon, where the principal office of the company was located. It was held :
“With certain qualifications, personal property follows the residence bf the owner, and is there taxable. . Where the owner of personal property is a corporation, such corporation will be considered to be in the state of its creation, and its residence where its principal office or place of business is.”
It was held that the property was not taxable in Morgan county.
In Jenkins v. The California Stage Co., 22 Cal. 538, where the question of the residence of a domestic corporation was before the court, the court said :
“The modern decisions very generally concur in giving corporations a local existence, like persons, and hold them to be properly included within the terms citizens, inhabitants, residents, and the like.”
It would not be profitable or tend to elucidate the question under consideration to undertake an analysis of the numerous cases which hold that for the purpose bf carrying out certain provisions of the statute corporations have been held to be residents of particular localities. Such decisions have application only to special questions then under consideration.
It is argued here that the justice of the peace had no jurisdiction of the defendant because the return of the officer who served the process did not show on whom service was made. This question was not raised by the petition. It specifically challenged the jurisdiction of the justice of the peace for the reasons heretofore discussed, which were set out under subdivisions 1 and 2 of the-petition. These two paragraphs were then followed by a third, which read: “L. G. Disney, as justice of the peace, has no jurisdiction whatever over the Missouri Pacific Railway Company or its property, and has had no jurisdiction in said case at any time.”
This is not a statement of fact, but a conclusion from the facts previously stated, and evidently based upon the reason therein stated. This court cannot consider a question not based upon an allegation of fact contained in the petition.
For the reasons herein given the judgment of the court is reversed and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
In June, 1907, the board of education of' Kansas City, Kan., entered into a contract with L. G. Ferguson for the erection of a school building at an agreed price. The United Surety Company became surety for Ferguson for the payment of claims for labor and material furnished. Carruth and McVey were stonemasons, and as partners took a subcontract for furnishing labor and material for the foundation of the building. They purchased their material from Barney & Roden. Ferguson defaulted in his payments, and, on October 2, 1907, Carruth and McVey went to the office of J. H. Luscombe, who was attorney for ■Barney & Roden, and had Luscombe prepare and file a lien statement in the name of Carruth. Carruth about that time went to southern Missouri and none of the interested parties knew where he was. On October 2, 1908, Luscombe brought this action in Carruth’s name to foreclose the lien and to recover from the surety company. While the suit was pending the surety company sent an attorney to Missouri, and, on April 2,1909, procured from Carruth an* affidavit stating that he had the subcontract' for the stone work individually; that-he had completed about one-fourth of his contract and was forced to abandon it; that Ferguson had paid him in full for labor and material used in the foundation; and that the action was brought without his knowledge or consent, and was wholly without merit. At the time this affidavit was made the surety company paid him the sum of $50 and took a receipt purporting to be in full payment of his claim for labor and material furnished under the contract. On April 9, 1909, Luscombe, attorney for the plaintiffs, heard of the existence of this affidavit and dismissed the action without prejudice. Thereafter, on May 6, and during the same term of court, he filed a motion to set aside the order of dismissal and reinstate the case on the ground that it had been dismissed under a misapprehension of facts. The defendants resisted the motion and numerous affidavits were filed. At the same term the court, after hearing the evidence, made a finding that the case had been dismissed under a mistake of fact, and ordered it reinstated. Thereafter, Barney & Roden procured from Carruth an assignment of his interest individually and as representing McVey in the contract with Ferguson, in which he stated under oath that the balance due from Ferguson for labor and material was $423.75. An amended petition was filed setting up the assignment. To this Ferguson and the surety company filed separate-answers setting up the receipt obtained from Carruth, and alleged that the same was in full settlement of his claim against Ferguson. The case proceeded to trial and the jury returned a verdict for the plaintiffs, finding the balance due from the defendants to be $295.96. A motion for a new trial was denied, and the defendants appeal.
The principal contention is that the court erred in setting aside the dismissal and reinstating the case. It is conceded that a motion of this kind is addressed to the discretion of the court, and. that such discretion will not be controlled unless manifestly abused. (Flint v. Noyes, 27 Kan. 351; Stouffer v. Harlan, ante, p. 307.) But it is seriously argued that the action of the court in this instance was an abuse of discretion, because it was not in the furtherance of justice. It is somewhat' difficult to grasp the defendants’ notion of what the furtherance of justice means. Because on the trial they lost the case and feel that an injustice was done them it by no means follows that the action of the court in setting aside the dismissal was not in furtherance of justice. The situation is the same as though the plaintiff in an action upon a promissory note had dismissed without prejudice, and ten days thereafter, and at the same term, had asked to have the dismissal set aside and the action reinstated, and the defendant had resisted the application upon the sole ground that he had a defense to the merits of the action — had paid the note, not after the dismissal, but long before. Now, the court could not try the merits of such a -case on affidavits; but in the furtherance of justice to both parties would reinstate the action unless there was-some very good reason why that should not be done, and would set it down for trial, when the parties could present their evidence before a jury. So here, every ground .urged against the reinstatement goes to the merits of the case and the right of the plaintiffs to maintain the action. The court could not try these issues of fact upon affidavits. It might have refused to reinstate on the ground that the plaintiffs could commence another action at any time within one year, since the dismissal was without prejudice; but how would this have benefited the defendants? If a new suit had been brought the same issues would have been raised. There is no pretence that pending the dismissal and reinstatement they acquired or lost any rights. They claim to have settled with Carruth before the case was dismissed, but they acquired no vested rights in the mere dismissal of the action without prejudice. The action of the court afforded both parties an opportunity to have the controversy determined upon its merits and was in the furtherance of justice. The plaintiffs paid all costs that had accrued up to the time the action was reinstated, and none of the defendants’ rights could have been prejudiced. Courts frequently set aside judgments on default at the same term at which they are rendered and allow answers to be filed. When the application is made at the same term it is not necessary to follow the provisions of the code permitting judgments to be opened up within three years. (Stouffer v. Harlan, ante, p. 307.) The language of the court in McCulloch v. Dodge, 8 Kan. 476, seems to apply here:
“It simply opens up the judgment and the default, and allows the said defendants to answer, so that the merits of the action may be heard and considered, and the case disposed of on its merits. Courts will always, as far as they can, favor rulings that will allow cases to be disposed of on their merits, and will always, as far as they can, discountenance every attempt to prevent cases from being heard on their merits.” (p. 479.)
It is claimed that a demurrer to the evidence should have been sustained because there was no proof that the amount sued for was unpaid. It is conceded, however, that McVey testified to the amount he believed to be due and unpaid. He was a partner of Carruth, and this was understood by all the parties in interest; his name was originally in the contract.' It seems that Ferguson disliked him, and when the first bills were presented refused to pay them until his name was stricken out, but paid some of the money on the contract to McVey. The fact that McVey testified from his recollection as to what was due merely went to the weight of his evidence. It devolved'upon the defendants to produce evidence to show that the claim had been paid. The demurrer was properly overruled.
The defendants requested an instruction to the effect that, if the receipt was obtained from Carruth and executed by him in consideration of the amount due him from Ferguson, then the verdict should be for the defendants. There could be no question that it was obtained from him, that it was executed by him and that it purported to be in consideration of what was due from Ferguson, and the instruction would practically have amounted to a peremptory instruction to find for the defendants. There was a real conflict in the evidence as to the circumstances under which the receipt was procured and what the actual consideration for it was. The court therefore properly instructed the jury that they might consider the various receipts executed by Carruth as evidence tending to show payment, but that they were not conclusive evidence of such payment and might be contradicted by oral testimony. The jury determined the issues in favor of the plaintiffs. The evidence was conflicting, but amply sufficient to sustain the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action for partition. The-question to be decided is whether a surviving wife was. barred of an inheritance in her husband’s estate by an antenuptial contract which, after introductory recitals,, contains the following provisions:
“That the said Denis Casey and Charlotte Casey, and! each of them, being fully advised and with full knowledge of what their right under the law of the state of Kansas would be in and to the property of the other if married without an agreement made with reference-to said property before said marriage, and for the purpose of settling all questions as to the right of each or either of said parties in and to their said property and the property of each of them during the continuance of said marriage and after separation by death or otherwise — as we the said parties deem just and equitable between ourselves, our heirs, executors, administrators, and assigns, and for the purpose of preventing contention between any and all persons now interested in said property — or hereafter to be interested in the same, and in view of said marriage and for and in consideration of the promises, covenants and agreements herein contained, the said Denis Casey and Charlotte Casey, and each of them, for themselves, their heirs, executors, administrators and assigns, do hereby promise, covenant and agree, and consent to and with each other, that the said Charlotte Casey may and shall, during the continuance of said marriage so agreed upon by and between said parties as aforesaid and after separation by death or otherwise, separately use, possess, convey and dispose of all property of every kind, both real and personal, belonging to her before said marriage, and all the rents, issue and profits thereof, to whomsoever she may choose and in the same manner and to the same extent that; she now can or then could have done, had such marriage not taken place. That the said Denis Casey, his heirs and assigns, shall during the continuance of said marriage so agreed upon by and between said parties and after separation of said parties by death or otherwise, and forever, separately hold, own, use, possess, convey and dispose of all the property and estate, both personal and real, now belonging to said Denis Casey, and all the rents, issues, and profits of said property to whomsoever the said Denis Casey, his heirs and assigns may choose, and in the same manner and to the same extent that he or they could have done had such marriage not taken place. And it is hereby mutually and expressly agreed, understood and consented to by and between said parties, and by each of them, for themselves, their heirs, executors, administrators, and assigns, that the said Charlotte Casey and Denis Casey, and each of them, may and shall have the perfect right to convey by will during the continuance of said marriage and after separation by death or otherwise all property belonging to them or either of them. . . . And that each shall have full power, authority and control over his or her own property the same as if the marriage had not taken place.”
Denis Casey died in 1908, seized of the land in controversy, leaving his widow, Charlotte Casey, Mary Kate Casey (a daughter by a previous marriage), and Ernest Casey and Ida Casey (now Ida Schuetz), his children by Charlotte Casey, as his heirs at law. Mary Kate Casey, the plaintiff, alleged that Charlotte Casey was barred’ from any interest in the land by the ante-nuptial contract, and prayed for partition in equal shares between herself, Ernest Casey and Ida Schuetz. Charlotte Casey claimed a widow’s share, one-half, under the statute of descents and distributions. The court upheld the widow’s claim. The plaintiff appeals.
. The appellant’s only contention is that the provisions of the contract bar the widow from any interest in the land. That the contract was equitable is not questioned by either party. Our only duty is to construe it. Agreements of this nature are generally regarded with favor and are liberally interpreted to carry into effect the intention of the parties. (Hafer v. Hafer, 33 Kan. 449.) The contract provides that “Denis Casey, his heirs and assigns, shall during the continuance of said marriage . . . and after separation of said parties by death or otherwise, and forever, separately hold, own, use, possess, convey and dispose of all the property . . . now belonging to said Denis Casey.” The same stipulation is made concerning the property of Charlotte Casey, only the words “her heirs and assigns” are omitted. Construing these stipulations with the general clause following, wherein the phrase “and after separation by death or otherwise” is repeated and applied to the property of both, and with the concluding clause, and the other parts of the instrument, it is clear that the parties intended an absolute segregation of their property rights, forever, giving.complete dominion over the property of each to each owner respectively, while living, with full power of disposition without the consent of the other, and that after death the heirs of each, excluding the surviv ing spouse, should succeed to the same right. The language of the instrument concerning the husband’s property is explicit in giving his heirs such right; and from the whole instrument it is fairly dedu'eible that the heirs of the wife are to have the same right. However, that question does not arise in this case.
It is suggested that the langúage of the instrument is taken from the agreement construed in’ Hafer v. Hafer, supra, excepting only the following clause in the Hafer contract (and a similar clause relating to the property of the other party) :
“And that at the death of said Virginia Bowser all property separately owned by her, both real and personal, shall pass and vest in her heirs and assigns in the same manner and to the same extent that it would had such marriage not taken place.” (33 Kan. 451.)
These clauses do not appear in the Casey contract, and it is insisted that the omission is significant of an intention to leave all rights of inheritance unaffected by the agreement. .
In Kistler v. Ernst, 60 Kan. 243, and Rouse v. Rouse, 76 Kan. 311, the antenuptial contracts construed in the opinions were held not to bar the inheritance of the surviving party in the property of the other. In the Kistler case the contract provided that the intended wife should have, keep and retain all her property as her sole, absolute and exclusive property, free from all claims and interest of her intended husband, with the right by gift, sale, devise or will to dispose of the same, but there was no clause'providing that this right should be vested in her heirs or continue beyond her lifetime, except by operation of her will. The court said:
“There is nothing in the contract that convinces us that Ernst, by the agreement, surrendered or released his right of inheritance as the survivor of his wife.” (60 Kan. 247.)
In the Rouse case there was a further provision in the agreement which required careful consideration, but upon the whole instrument it was held, following the Kistler case, that the widow was not barred of her inheritance. In the opinion it was said:
“While we are not prepared to say that an express provision must always appear in order to deprive the survivor of the rights of inheritance, there are authorities which go to that extent.” (76 Kan. 318.)
It is true that in the Hafer agreement there was an express provision, in addition to the terms used in the agreement in this case, that the lands of the intended wife should at her death vest in her heirs as though the marriage had not taken place; but there is no intimation in the opinion that the instrument would have been construed differently if that clause had been omitted. The terms of this agreement are so explicit that they can not be disregarded. The provision quoted above, that Denis Casey, his heirs and assigns, shall during the continuance of the marriage and after separation by death or otherwise, and forever, separately hold, convey and dispose of the property now belonging to him, in connection with the other terms of the instrument, gave to his heirs, after his death, the rights in his land which he enjoyed while living. Charlotte Casey was therefore barred by the agreement from taking any interest under the statute in the land owned by him at the time of his death and included in the agreement.
The judgment is reversed, with direction to proceed in the action in accordance with these views. | [
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The opinion of the court was delivered by
Benson, J.:
This action arose out of the rival claims of a lessee and a settler upon school land. The plaintiff, Payne, held a lease of the land in question, made by the board of county commissioners, the county superintendent of public instruction and the county treasurer, on the 7th day of January, 1907, for a term of five years. The lessee used the land as a sheep pasture during the grazing seasons of 1907 and 1908, herding his sheep thereon. He made no improvements except to plow two furrows as a fireguard on the east and west sides of the tract. The sheep were taken off in October, 1908, leaving no visible signs of occupancy except the fireguard and the indications of grazing. Oh the 5th day of December, 1908, the defendant, Barlow, entered upon the land to effect a settlement as provided by law upon school land, and made improvements thereon and occupied the land as such settler. He was qualified to obtain the title thereto if the land was subject to such settlement. The plaintiff served upon the defendant a notice to quit, as provided in the statute relating to forcible entry and'detainer, and on the 8th day of May commenced an action under that statute for restitution of possession. At the date of his settlement the defendant had knowledge of the existence of the lease, but proceeded in the belief that it was void. The attorney-general appeared for the state and was allowed to interplead in the action, claiming in substance that the lease was void for the reason ■ that the statute purporting to authorize the leasing of school land is unconstitutional, and that it gave no power to the officers to execute the lease, because the land had not been appraised within five years prior to the date of the lease. The plaintiff recovered.
It is contended that the statute under which the lease was made embraces more than one subject, only one of which is expressed in the title, and is therefore in violation of section 16 of article 2 of the constitution. The statute in question is chapter 241 of the Laws of 1899, entitled “An act to amend paragraph 5769 of the Compiled Laws of 1889, providing for the leasing of unoccupied school land, for penalties for violations hereof, and repealing paragraph 5769 of the Compiled Laws of 1889, and section 12, chapter 162, of the Laws of 1895.”
The section referred to in the act, and amended thereby, is chapter 122 of the Laws of 1876, entitled “An act for the regulation and support of common schools,” as amended by chapter 152 of the Laws of 1886. The act of 1876 provides for the establishment, government and maintenance of common schools. Among other things, regulations are made for the sale of school land, and the payment of the proceeds into the school fund. The amendatory act of 1899 added to these regulations provisions for leasing the school land. The lease in question was made in accordance therewith, but it is said that this is another subject, and is not within the title. The sale of the lands was authorized in order to provide revenue for the schools, and thereby to carry into effect the purpose for which they were set apart by the constitution. They are leased for the same reason; sélling and leasing the lands are both means to reach the same end. They are not incongruous, but are naturally related to the one general subject and are within the title of the original act. The title to the act of 1899 refers to the statute amended, and also states the particular subject of the amendment, viz., “providing for the leasing of unocr cupied school land.” The title is sufficient, within numerous decisions of this court. (Philpin v. McCarty, Supt., &c., 24 Kan. 393; Wilson v. Herink, 64 Kan. 607; La Harpe v. Gas Co., 69 Kan. 97; The State v. Thomas, 74 Kan. 360; The State v. Butler County, 77 Kan. 527; The State v. Sherman, 81 Kan. 874.)
It is also contended that no power existed to make the lease in question by reason of the restriction contained in section 5 of article 6 of the constitution, viz., that “the school lands shall not be sold unless such sale shall be authorized by a vote of the people at a general election; but, subject to revaluation every five years, they may be leased for any number of years not exceeding twenty-five, at a rate established by law.” Such sale was authorized at the general election of 1864, held pursuant to a statute enacted that year. (Laws 1864, ch. 102, Gen. Stat. 1868, ch. 94.) That act contained no provisions for leasing, but this authority was given, as we have seen, by the act of 1899. It is insisted that there must be a valuation or appraisement of the land as a condition precedent to the power to lease, and that in the absence of such appraisement within five years no authority to lease exists. No such appraisement had been made in this instance, and in fact it appears that no general appraisement has ever been made, although particular tracts have been appraised upon petition, preparatory to sales, as provided in the original act of 1864, and continued in the various revisions and amendments made since that time. A general direction that in all cases lands which have not been claimed or purchased shall be reappraised every five years'is contained in the original act, and in revisions thereof, including the General Statutes of 1901 (§ 6357); but no provisions have been made to carry out such direction, other than the regulations for appraisements upon petition, above referred to. The plaintiff insists that the revaluation referred to in the constitution is not a condition precedent to the exercise of the power to lease, but is the reservation of a right to revalue the rentals so that the lease is subject to a change in the rents at such intervals. The language is general, but the words “subject to" indicate that a lease is burdened with the condition that the rentals may be increased of changed at each revaluation. Leases frequently provide for a readjustment of rents upon appraisement at stated intervals (1 Tiffany, Land. & Ten. § 173 d), or upon extrinsic facts (1 Tiffany, Land. & Ten. § 173 b; 2 Tiffany, Land. & Ten. § 327). That such readjustment was intended rather than the creation of a condition precedent to the exercise of the power is the natural import of the words “subject to,” in the connection where they are found. (See, also, Jackson v. Isaacson, 27 L. J. Ex. 392, and Gratz v. Highland Scenic Ry. Co., 165 Mo. 211.)
Whether the revaluation referred to in the constitution is that of rentals to be paid, or of the land itself as a basis for a change in rentals, need not be determined, as the same result would follow in either event in this case. As the term of this lease was limited to five years, we need not inquire by what officers or by what means a revaluation could be made.
An incidental question of practice is presented. It is insisted that the plaintiff has mistaken his remedy. True, the provisions relating to forcible entry and detainer are not appropriate to try the validity of titles, but the plaintiff was in possession, so far as was necessary to the full enjoyment of the land for the purposes for which he had leased it, and this was known by the defendant when he entered. His entry was made to oust the plaintiff and to acquire title in himself. By so doing he took forcible possession, and, after notice to quit, unlawfully held it; but, in view of the importance of the principal question, and the fact that the land was not subject to entry and the defendant obtained no rights as a settler, the question of practice is relatively unimportant.
The judgment is affirmed. | [
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Per Curiam:
The appellees have filed an objection to the costs claimed by the appellants (Haughton v. Bilson, ante, page 129), on the ground that the abstract was unnecessarily prolix and that the rate charged for printing it was excessive. The charge per page is found to be reasonable, but we think by proper condensation the size of the document could have been reduced by at least one-third. A reduction of one-third will therefore be made from that item of -costs. | [
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The opinion of the court was delivered by
Benson, J.:
The question for decision in this case is whether Franklin county shall be compelled to repair two bridges spanning the Marais des Cygnes river in the city of Ottawa, a city of the second class. The bridges were constructed more than twenty-five years •ago, in public streets of the city, forming parts of the streets. Each bridge cost more than $5000, and the •county has a population of over 20,000. The petition alleges that the bridges were erected by the county. This is not denied by the answer, and is therefore taken as true, although it may not be important whether they were in fact erected at the sole expense of the county or by means of appropriations from both the county and the city treasuries. The bridges are in need of repair. ' Some repairs have been made by the city since this action of mandamus was begun, in order to make the bridges safe for travel, but more extensive repairs are needed, which the county commissioners refuse to make. While the answer alleges that there are not sufficient funds in the county treasury for this purpose, without retarding other necessary work, it is inferred from all that appears -in the record and argumerit that the real question is not one of means, but of obligation. The fact that several other bridges in the county across the same river are maintained at the expense of the taxpayers of the county, including those of the city, probably stimulates the authorities of the city to seek an equalization of the burden, while the fact that these bridges are within the exclusive control of the city may prompt the county authorities to question their power to act, and so this action was brought to' determine the controversy.
Bridges in cities, situated as these bridges are, whether built by the county or city, or by the combined action of both, are, under the general laws of the • state, in the exclusive control of the city. The. evils of a divided control are referred to in the opinion in Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197. The reasons for an undivided control are apparent. Bridges are often used for street railways, for the support of water and gas mains and telephone and telegraph connections, and may be'used for other public purposes, under the exclusive regulation and control of the city. A city is liable in certain cases for injuries caused by defective bridges. If the county commissioners should take charge and control of repairs and maintenance, and have paramount authority to determine how and when this power should be exercised, confusion might result, with inconvenience to the public and loss to the city.
There is.no common-law duty resting upon a county' to repair bridges built in city streets in this state, and this is true although the bridge be built wholly or partially by the county or a township. (City of Eudora v. Miller, 30 Kan. 494; Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197; City of Rosedale v. Golding, 55 Kan. 167; Nand v. City of Newton, 58 Kan. 229; Cloud County v. Mitchell County, 75 Kan. 750.) But it is contended that the county is bound to make the repairs in this instance because of the express mandate of a statute. Following is the act relied upon:
“An act to authorize the county commissioners of Franklin county to repair, maintain or rebuild certain bridges in the city of Ottawa, in said county.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. The board of county commissioners of Franklin county are hereby authorized to repair, maintain or rebuild either or both of the bridges now spanning the Marais des Cygnes river, one on Main the other on Locust street, in said city of Ottawa, and for that purpose shall pay for said repairs, maintenance or rebuilding out of any funds of said county available for such purpose.” (Laws 1905, ch. 81.)
The plaintiff contends that this act is mandatory. On the other hand, the defendant argues that it is unconstitutional, if construed to be mandatory, because' it deprives the city of corporate power by special act. (Const, art. 12, §§ 1, 5; Gray v. Crockett, 30 Kan. 138; Comm’rs of Shawnee Co. v. The State, ex rel., 49 Kan. 486.) That the act is permissive only appears from the ordinary meaning of the words “authorized” and “to authorize,” used in the statute and in the title. The primary meaning of the word “authorize” is to empower, to give a right to act. It is true that, as often used in statutes, it may imply a command. It has been held that when a power is conferred by statute upon a municipal corporation, for the public good, the exercise of the power is mandatory, power and authority in such a case being held equivalent to duty and obligation. (Magaha v. Hagerstown, 95 Md. 62; State v. Henry, 87 Miss. 125.) But it has been held that this construction “has prevailed only in cases where the statute under consideration, when taken as a whole, and viewed in the light of surrounding circumstances, indicated a purpose on the part of the legislature to enact a law mandatory in its character.” (People v. Mayor, etc., of City of Syracuse, 12 N. Y. Supp. 890, 894, affirmed in 128 N. Y. 632.)
Considering the fact that when this law was passed the city had exclusive control of the bridges, which control still continues, and that public policy requires that there should be unity in such control, that if construed as mandatory it would be out of harmony with our scheme of street improvement, regulation and control in cities, and that the terms used primarily imply permission, it is reasonably clear that the legislature intended only to give the county board discretion in this matter, and not to impose an imperative obligation. This conclusion seems the more reasonable in view of the grave constitutional question that would arise from an interpretation to the contrary. It is urged that the provision that the county “shall pay for said repairs . . . out of any funds . . . available” (Laws 1905, ch. 81, § 1) makes the act mandatory, but the imperative “shall” manifestly relates to such repairs as the board may make, and only means that, if the expense be' incurred, it shall be paid out of any fund available.
It was said, in The State, ex rel., v. Shawnee Co., 57 Kan. 267:
“Apart from the maintenance and control of the streets, it is doubtless competent for the legislature to authorize a county to build a bridge at any point within the limits of the county.” (p. 270.)
So it may, with like authority, make appropriations to assist in building bridges. (Kansas City Bridge & Iron Co. v. Comm’rs of Wyandotte Co., 35 Kan. 557.)
In Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197, it was said:
“Probably the county has the power to construct and maintain a bridge within the limits of a city, even when it becomes a part of ,its streets; or it may, with the concurrence of the city authorities, build and keep in repair such a bridge, but it is quite a different proposition that because of such aid in building the bridge the county is compelled to keep it in repair.” (p. 201.)
Construing the special act of 1905 as giving the county commissioners authority to appropriate money to repair and maintain the bridges in question, but not to control the streets or to restrict the city in the regulation, management and control of the bridges, no reason is perceived why it is not a valid exercise of legislative power; but as the act is not mandatory, even if it might have been made so, the county commissioners can not be compelled to act. (The State ex rel. v. Comm’rs of Wabaunsee Co., 45 Kan. 731.) Judgment is therefore rendered for the defendant. | [
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The opinion of the court was delivered by
Benson, J.:
In this action for partition the plaintiff, E. Winter, and defendants Belle Willis, Harriet M. Snyder and Thomas C. Dunlap were adjudged to be the owners of the land, which- was ordered to be partitioned, giving to each one-fourth. A lien for the amount of a judgment in favor of defendant L. P. Phillips was adjudged against the one-fourth interest of the plaintiff. Phillips also asserted a lien under the same judgment- upon the share of defendant Belle Willis, but this was refused. The plaintiff appeals from the judgment allowing the lien upon his share, and Phillips appeals from the judgment denying .the lien upon the share of Belle Willis.
Four judgments are referred to in this opinion, viz.: The judgment appealed from, referred to.as the judgment herein; a judgment in a former action for partition, called the judgment in-the widow’s suit; a judgment in favor of defendant Phillips, against J. A. Dunlap.. and others, called the Phillips judgment; and a judgment in favor of the plaintiff, Winter, against S. R. Dunlap, referred to as the Winter judgment.
All the parties derive their title and interests from J. E. Dunlap, who died intestate March 4, 1889, the owner of this land, leaving a widow and four children, his heirs at law. On June 24, 1889, the widow commenced an action of partition in the proper court. On July 20, 1889, J. A. Dunlap, one of the sons, a defendant in that action, made a conveyance to M. S. Willis, while that action was pending, conveying an interest in the land.in question by the following description: “My undivided one-eighth interest in and to the northeast quarter of section two, township twenty-seven, range ten east, in Greenwood county, Kansas.” Defendant Belle Willis has succeeded to the title of her deceased husband, the grantee in this deed. On September 19, 1889, the judgment was rendered in. the widow’s suit for partition, adjudging to her a life estate in the land, and to the four children of J. E. Dunlap the remainder in fee.
The widow died before this action was begun. On January 8, 1890, the Phillips judgment was rendered against J. A. Dunlap and S. R. Dunlap, sons and heirs of the deceased, and against the administrator of his estate. On that judgment an execution was issued, March 11, 1890, and other executions have been issued at dates not more than five years apart. The estate of J. E. Dunlap was settled and the administrator discharged on June 6, 1892. The judgment has not been revived against any representative of the estate.
The plaintiff became the owner of the share or interest of S. R. Dunlap through an execution sale upon the Winter judgment, which became a lien upon that interest on June 20, 1890. Executions were issued on this judgment at intervals of less than five years-; the last execution was dated December 9,1902, under which the sale was made and confirmed. The plaintiff’s title is not questioned, but the priority of liens is in dispute. The plaintiff complains of the allowance of the Phillips judgment as a prior lien, because no levy was ever made under that judgment, although it was the first to be docketed. The statute provides:
“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 prej udice of any other judgment creditor.” (Civ. Code, § 462.)
Both judgment creditors failed for more' than one year after the rendition of their respective judgments to cause executions to be levied, but the first levy was made under the Winter judgment, and the plaintiff therefore has the priority. (Bank v. Wyman, 65 Kan. 314.) The property having been sold under this lien, so secured by the first levy, was discharged of the second lien, or lien of the Phillips judgment. The court therefore erred in holding the Phillips judgment to be a lien upon the share set off to the plaintiff.
The plaintiff also contends that the Phillips judgment, being dormant as against the representative of the estate of J. E. Dunlap, is also dormant as against the joint judgment debtors, and has therefore ceased to be a lien upon their lands, but this claim can not be sustained. (Richardson v. Painter, 80 Kan. 574.)
The appeal of defendant Phillips from the judgment herein, giving defendant Willis one-fourth of the land free of the lien of the Phillips judgment, is based upon the proposition that J. A. Dunlap did not convey his entire interest by his deed to Willis. Whatever the parties to the suit brought by the widow may have supposed their respective interests to be, the decision of the court in that action finally determined their interests as stated in the judgment in that suit. J. A. Dunlap, instead of owning one-eighth of the land in fee, owned one-fourth of the remainder, i. e., one-fourth subj ect to his mother’s life estate. If we could suppose that the decree was based upon an error of law contrary to the statute of descents it is still final, for it stands unchallenged and unreversed, binding parties and privies. Probably that judgment was based upon a prior contract or conveyance between the parties, for error can not be presumed; but, in any event, it determined the interests of the parties, and when J. A. Dunlap made the conveyance of his interest, one-aighth, the title did not pass to one-eighth of the quarter section in fee, but to one-eighth of the remainder, which the four children were decreed to own' in common. As his interest was one-fourth of the remainder, it follows that he conveyed away but one-half of it, and when the Phillips judgment was rendered it became a lien on the interest which he had not conveyed, which was the other half of his one-fourth part of the remainder. When the widow died the life estate terminated, and the remainder became a fee. Then J. A. Dunlap owned one-eighth of the land, and his grantee, Willis, the other one-eighth, making up the one-fourth adjudged by the decree, freed from the life estate.
In the judgment herein the court did not give to J. A. Dunlap any interest in the land, but adjudged to Willis one-fourth thereof. Dunlap does not complain of this, but the lien of the Phillips judgment having attached to the interest which he did not convey, remains a lien upon that interest.
The judgment should be modified so as to give to defendant Phillips a lien for the amount of her judgment upon the undivided one-half of the land set apart to defendant Willis, and to the fund arising therefrom if sold under the judgment in partition. It should also be modified by releasing the plaintiff’s share of the land, or proceeds thereof if sold, from the lien of the Phillips judgment.
The-cause is remanded with directions to modify the judgment in accordance with these views. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These proceedings involve the custody of Nadene Lewis, the infant daughter of Elva and John A. Lewis. On'April 26, 1909, Elva Lewis obtained a decree of divorce from John A. Lewis, and she was given the custody of Nadene, who was then about four years of age, and of another child, who has since died. Shortly after the divorce she removed to Oklahoma City, where she conducted a rooming house. On July 20, 1910, she signed a paper in which it was stated that she relinquished the custody and control of Nadene and stipulated that thereafter John A. Lewis, her former husband, should have the custody, care and control of the child. He brought Nadene to Harper county, Kansas, and placed her in the home of his father and mother, with whom he lived. . The day following the surrender of Nadene, Elva Lewis married Charles Petitt, a quarter-blood Indian of the Cherokee tribe. No question was raised as to the right of John A. Lewis to the custody of Nadene until he served a notice on Elva Petitt that he would ask the district court of Harper county to modify its decree in the divorce proceedings so as to give the custody and control of the child to him. The notice was served on October 14, 1910, and in it the time fixed for a hearing was November 11, 1910. On October 22, 1910, and upon the application of Elva Petitt, the probate court of Harper county issued a writ of habeas corpus, the purpose of which was to take Nadene from her father and place her again in the custody of Elva Petitt. At the end of a hearing, begun on October 31, 1910, in which the probate court was informed of the notice and the proceedings in the district court, the probate court made an order awarding the custody of the child to Elva Petitt. Prior to that time, and on October 27, 1910, the district court, on the application of John A. Lewis, had issued an order directing the sheriff, who had the custody of Nadene, not to surrender that custody nor allow her to be taken out of the jurisdiction of the court, but to hold and bring her before the court on November 11, 1910, when the hearing for the modification of the decree was to be had. The sheriff then declined to surrender the custody of the child in obedience to the order of the probate court, and, on the application of Elva Petitt alleging that the sheriff was illegally restraining the child, a writ of habeas corpus was issued by this court on November 3, 1910.
Afterward, and on November 11, 1910, a trial was had in the district court, in pursuance of the notice given October 14, 1910, wherein considerable testimony was given concerning the habits, character and circumstances of the mother and father of Nadene. The district court modified the decree previously rendered and adjudged that the care and custody of Nadene should be given to the father, John A. Lewis, but it was provided in the modified decree that it was not intended to, and should not, conflict with any orders the supreme court might make in the proceedings pending here. An appeal was taken from the decision of the district court, and that appeal and the original proceeding in habeas corpus were submitted together.
The appellant contends that the district court was without jurisdiction to change the custody of the child, and this upon the ground that when the probate court issued the writ of habeas corpus it acquired jurisdiction of the child and the exclusive authority to determine with' whom the custody should _ be in the future. It is argued that in habeas corpus the probate court is of equal rank with the supreme and the district courts, and that its orders respecting the custody of the child are just as effectual and binding as those made by the higher courts. While it is vested with jurisdiction in habeas corpus, it is inferior to the supreme and the district courts and is subject to the supervisory power of both. The supreme court stands at the head of our judicial system, with the highest appellate jurisdiction, and, besides, it is vested with original jurisdiction in quo warranto, mandamus and habeas corpus. While the constitution does not in specific terms provide that the supreme court shall have supervisory power over inferior courts, it undoubtedly has such superintending control as may be, and generally is, exercised through the original writs which the constitution authorizes it to issue. The action of inferior courts has frequently been supervised and controlled by the supreme court through these prerogative writs. (Munkers v. Watson, Judge, &c., 9 Kan. 688; Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150; The State, ex rel., v. Webb, Judge, 34 Kan. 710; Bird v. Gilbert, 40 Kan. 469; City of Emporia v. Randolph, 56 Kan. 117; Grimes v. Barratt, 60 Kan. 259; Bleakley v. Smart, 74 Kan. 476.) The subject of the superintending control and supervisory jurisdiction of superior over inferior courts is elaborately treated in a note appended to State ex rel. Fourth National Bank v. Johnson, 51 L. R. A. 33. In summing up the result of the authorities it is said:
“The constitutional or statutory grant of power to issue the writs by means of which the power of superintending control is exercised comprehends and carries with it the authority to exercise the power of superintending control to the extent that it can be exerted by those writs.” (p. 111.)
The district court is superior to the probate court, not only because of the appellate power conferred, the prerogative writs which it may issue, and the higher character of its jurisdiction, but the statute expressly provides that it shall have general supervision and control of inferior courts and tribunals to prevent and correct errors and abuses. (Gen. Stat. 1868, ch. 28, § 1, Gen. Stat. 1909, § 2390.) The probate court is a court of record and is vested with jurisdiction in cases of habeas corpus, and as to proceedings clearly within its jurisdiction it is not to be considered as an inferior court; but, even as to habeas corpus, its orders and judgments may be corrected and revised upon appeal. (Gen. Stat. 1868, ch. 28, § 1, Gen. Stat. 1909, § 2390.) In Grimes v. Barratt, 60 Kan. 259, it was held that under section 583 of the old code error from the judgment of the probate court would lie, and the new code in terms provides that a judgment or final order of the probate court may be reversed, vacated or modified by the district court. (Code 1909, § 564.) The new code abolished proceedings in error and provided that such judgments and orders shall be reviewed on appeal. This broadened the power theretofore granted, so th'at now there may be a review and retrial of the questions of fact as well as of law involved in appeals from probate courts, and section 571 of the code of 1909 points out the method by which an appeal may be taken. It is suggested that a provision of the act relating to executors and administrators prohibits an appeal in cases of habeas corpus. That act enumerates twelve kinds of decisions from which an appeal will be allowed, and this is followed by a clause providing that there shall be an appeal “in all other cases where there shall be a final decision of any matter arising under the jurisdiction of the probate court, exfcept in cases of habeas corpus and injunction.” (Gen. Stat. 1868, ch. 37, §188, Gen. Stat. 1909, § 3624.) This act, however, only relates to the sub j ect of the settlement of the estates of deceased persons and the powers and duties of executors and administrators in the premises. The matter of habeas corpus is not within either the title or the subject of the act, and the clause referring to it is therefore ineffectual. Aside from that, the provision of the new code relating to an appeal from the probate court is later legislation, and even if the provision in the executors and administrators act could be regarded as valid it would be superseded by the later provision on the subject in the code.
So we have the supreme court, with appellate jurisdiction coextensive with the state, to review the judgments of the district courts, and superintending control of all inferior courts so far as it may be exercised through the prerogative writs which it is empowered by the constitution to issue. Then we have the district courts, with appellate jurisdiction over the probate courts, justices of the peace and other inferior tribunals, and superintending control overall inferior tribunals. The system is simple and complete, and as to the cases of habeas corpus, over which all three of the courts of record have jurisdiction, there is an appeal from the probate court to the district court and then from the district court to the supreme court. It is unnecessary, in this case, to determine to what extent the supervisory powers of the superior courts may be exercised in habeas corpus cases. The district court had acquired jurisdiction of the subject of inquiry— the custody of the child — before the proceedings were begun in the probate court. The district court could not, therefore, be deprived of its authority to determine the question by the subsequent intervention or action of the probate court. It was the district court of Harper county that rendered the judgment divorcing the parties and providing for the custody and maintenance of the minor child. The judgment was within the con trol of that court, and was subject to modification by it. The code provides:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.” (Code 1909, § 672.)
It has already been held that “this section leaves the matter entirely in the hands of the court. It may at any time, upon proper notice, change any former order made with reference to these matters by adding to, or taking from, the burdens of either party relative to the same. . . . Such orders may be made by the court upon its own motion, or upon the suggestion of anyone immediately or remotely interested.” (Miles v. Miles, 65 Kan. 676, 678, 679.)
The proceeding to modify the decree in this instance was instituted by the service of a notice upon Elva Petitt, prior to the issuance of the writ of habeas corpus by the probate judge. The notice was served on October 14, 1910, and it recited that an application would be made to the district court to amend the decree relating to the custody of Nadene. The motion for the modification recited that Elva Petitt had been guilty of lewd and lascivious conduct, specifying particular instances, and that by reason of the changed conditions she was an unfit person to have charge of the child. It is peculiarly the province of the district, court which renders the decree to modify that decree respecting the custody of children, and to determine whether the altered conditions warrant a change in the decree with respect to such custody; but, even if the courts should be treated as having concurrent and equal jurisdiction in respect to the subject matter, the district court, having first acquired jurisdiction, would hold it to the exclusion of the other. (C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223; The State v. Miller, 54 Kan. 244; Railway Co. v. Love, 61 Kan. 433.) The juris diction of the district court, regularly acquired by the service of notice, could not be wrested from it by any action of the probate court, and its right to proceed' to the end of the inquiry could not be thwarted or impeded by any intermeddling process issued by the probate court.
The action of a probate court in attempting to interfere with the custody of children, as determined by a court of common pleas, was before the supreme court of Ohio, and it was decided that the jurisdiction of the common pleas court was a continuing jurisdiction, and that if any changes were necessary they should be made by that tribunal. It was said:
“The court making the original decree is the proper forum in which to seek a modification of its orders; and it would be vexatious and dangerous to permit probate courts, either by habeas corpus or letters of guardianship, to interfere with them, directly or indirectly, except, it may be, to enforce them. And cases of this kind, too, often present questions of a difficult, delicate and important character, and a wise public policy would seem to require that they be dealt with by courts which, from their dignity, and the nature of their, constitution and jurisdiction, afford the best presumption of ability properly to dispose of them.” (Hoffman v. Hoffman, 15 Ohio St. 427, 436.)
(See, also, Neil v. Neil, 38 Ohio St. 558; Rogers v. Rogers, 51 Ohio St. 1.)
The supreme court of Illinois has held that the children of divorced parties are, in a sense, the wards of the court which entered the decree fixing the relations of the divorced parties and the custody of their children, and that under the chancery jurisdiction it may, at any time after the decree, make any other or further orders as to the custody of the children that the circumstances may require. (Cowles v. Cowles, 8 Ill. 435; Miner v. Miner, 11 Ill. 43; Hewitt v. Long, 76 Ill. 399; Cole v. Cole, 142 Ill. 19; Chase v. Chase, 70 Ill. App. 572; Smith v. Smith, 101 Ill. App. 187.)
In Indiana, where there is no special provision for action of the court after the decree is rendered, it has been held:
“Where upon granting a divorce the court in its judgment assigns the custody of the children to one of the parties, such disposition of the children will control till the judgment making it is modified by the court upon proper application and can not be disregarded in a subsequent proceeding by habeas corpus to obtain possession of the children.” (Williams v. Williams, 13 Ind. 523, syl.)
The question remains whether the testimony warranted the district court in modifying the decree and awarding the custody of the child to John A. Lewis. Mrs. Petitt insists that the agreement to surrender the child to Lewis was obtained by reason-of threats that she would be arrested and placed in jail on a charge of lascivious and indecent conduct if she did not sign it. She did surrender the child to Lewis on July 20, 1910, and he took Nadene to the home of her grandfather in Harper county, Kansas. No complaint of this action was made, nor was there any attempt to recover the custody of the child until a notice of an application to modify the decree was served, on October 14, 1910. On the question of whether she was a fit person to have the care and custody of the child much testimony was received. It related to her associations, conduct arid manner of life in Oklahoma, and, taking it as presented here, we can not say that the district court acted unwisely or that its order transferring the custody of the child is without support. It is needless to state in detail the charges of misconduct or the testimony offered to sustain them, but, on the whole, it would appear that the welfare of the child, which is the para-' mount consideration, will be best subserved by giving her custody and control to the father.
The ruling denying a continuance of the case in the district court is not deemed to be a material error.
It follows that the prayer of the petitioner in the habeas corpus proceeding must be denied and the judgment of the district court affirmed. | [
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Per Curiam:
The facts in this case are stated in the former opinion. (The State v. Miller, 83 Kan. 410.) A rehearing was allowed, and it is now held that the court erred in not instructing the jury that if the appellant acted innocently, believing that he was aiding another in taking charge of and removing from the depot platform the other’s own property, he was not guilty of larceny. Although the particular instruction requested was faulty, as pointed out in'the former opinion, it was, as said in a recent case, “sufficient at least to challenge the court’s attention to the only defense upon which the defendant relied” (The State v Turner, 83 Kan. 183) and in support of which there was some substantial evidence offered. As no instruction was given which in any manner stated the law in reference to the appellant’s sole defense, the error must be regarded as prejudicial.
The judgment is reversed and the case remanded for further proceedings. | [
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The opinion of the court was delivered by
Benson, J.:
This action is upon a promissory note, payable to the order of J. M. Heslet, on January 1, 1909, containing the following clause:
“The makers and indorsers of this note hereby severally waive presentment for payment, notice of payment, protest and notice of protest,’ and all exemption that may be allowed by law, and valuation and appraisement laws waived, and each signer and indorser makes the other an agent to extend the time of this note.”
The question for decision is whether the note is a negotiable instrument. It is conceded that if the note is negotiable the plaintiff should recover, and that if it is not the judgment for the defendant was right.
It is contended that the element of certainty in time ■of payment necessary in commercial paper is destroyed by the stipulation for extension. An instrument to be negotiable “must be payable on demand, or at a fixed or determinable future time.” (Laws 1905, ch. 310. § 8, Gen. Stat. 1909, § 5254.) An instrument is payable at a determinable future time “which is expressed to be payable: (1) At a fixed period after date or sight; or (2) on or before a fixed or determinable future time specified therein; or (3) on or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening be uncertain. An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect.” (Laws 1905, ch. 310, § 11, Gen. Stat. 1909, § 5257.)
In Bank v. Gunter, 67 Kan. 227 (followed in Sykes v. Bank, 69 Kan. 134, 78 Kan. 688), it was held that a note was not negotiable because of the following clause:
“The makers and indorsers hereby severally waive protest, demand, and notice of protest and nonpayment, in case this note is not paid at maturity,' and agree to all extensions and partial payments before or after maturity without prejudice to holder.” (Syl. ¶ 1.)
The negotiable instruments law did not apply in the Gunter case (Laws 1905, ch. 310, § 6, Gen. Stat. 1909, § 5252), but the provisions of that statute to which we have referred are only declaratory of the law merchant. Adhering to the views expressed in that case, they must, if applicable, govern the controversy here. In that case the makers and indorsers agreed to all extensions before or after maturity; here signer and indorsers make each other an agent to extend the time. Interpreting “signer” to mean maker, and the agency of each maker and indorser to act for the other as equivalent to a consent to the action of either to an agreement for extension made by another, the only material difference discernible is that in the Gunter case the note stated that the extension might be made before or after maturity, while in this case it authorizes the extension without stating when it may be made. The precise inquiry suggested is whether the authority to extend here given may be exercised only after maturity. If so, the time is fixed for payment, for the promise, apart from this clause, is to pay on January 1, 1909, and an authority to extend afterward would only amount to a waiver of the right to be relieved from liability for an extension without such authority. If, however, the clause is to be construed as giving the parties named the right to extend the time before maturity, its effect would be precisely the same as though the words “on or before” had been inserted, and the rule of the Gunter case would apply. Counsel for the bank say:
“At most the clause in question can only be construed to give authority to the parties named to ‘extend’ the time of payment at or after maturity by an agreement to be then made. That is what the word ‘extend’ means.”
To extend is to stretch, or stretch out. (Webster’s New Inter. Diet.) As here used, it means that the time of payment may be lengthened to a date beyond that stated in the instrument. Extension of time of payment rests in contract, and the contract may be made before as well as after maturity, unless some restriction is expressed or is to be implied from the terms used. Thus the parties to a lease for one year may agree before the end of the term that it shall be extended for another year, and this may be done ordinarily in any contract or transaction involving a fixed period of time. The general authority given in this instrument is to extend the time for payment, each signer and indorser being made an agent of every other to do this. It is not stated that this shall be done only at maturity or after maturity, and it is not perceived why such a restriction should be implied, and no precedent is cited for such a rule. Indeed, it would seem that extensions in such cases would ordinarily be made before the note falls due, in order to prevent the impairment of credit, and to avoid inconveniences that might arise from disappointed expectations of receiving payment.
It is argued, however, that the opinion in the Gunter case warrants the interpretation claimed by the appellant. The clause relied upon is:
“If the time is to remain fixed until maturity, when another time is .to be fixed by the parties, or if payment is made to depend upon events which necessarily must occur and the time of payment is ultimately certain, other considerations would arise.” (67 Kan. 231.)
While it was said that other considerations would arise if the time of payment remained fixed until maturity of the note, it was not suggested that the right to an extension before the time of payment stated in the note had elapsed depended on the words “before or after maturity” in the clause' giving such right. Nor is such a conclusion to be inferred from the language used. In reading the cases cited in the opinion referred to, it will be found that in. all or nearly all of them the instruments under consideration gave the right to extend in general terms, without stating when it should be exercised, and the distinction now contended for was not suggested. In Oyler et al. v. McMurray, 7 Ind. App. 645, cited on .page 233 of the Gunter case, the clause was that “the drawers and indorsers severally waive ... all defenses on the ground of any extension of the time of its payment . . . given by the holder or holders.” (pp. 647, 648.) The Indiana court said: “This . . . evidently means . . . before or after January 1, 1888” — the date of maturity, (p. 648.) This seems to be the construction placed upon the' general authority to extend, as given in the other cases cited.
In Woodbury, Williams & English v. Roberts, 59 Iowa, 348, also cited in the Gunter case (p. 232), the stipulation was that “the makers and indorsers . . . agree.that the payee or his assigns may extend the time of payment,” etc. The Iowa court said: “The note before us may never fall due, for payment may be extended indefinitely.” (p. 349.) If, however, extensions could be made only after maturity, the objection that it might never fall due would have no foundation,, for it would necessarily fall due before an extension could be made.
The vice of the stipulation in question is that the day of payment can not be determined. The signer (maker) or any indorser may, at any time he sees fit to do so, as agent one for another, extend the time for payment by agreement with the holder. The payee, in transferring the note, may become an indorser, and therefore an agent for the maker, and his indorsee may in turn become an indorser, with like power, so-that the time of maturity must be indefinite, and not. determinable from the instrument. As stated in Coffin v. Spencer, 39 Fed. 262, also cited at page 232: of the Gunter case:
“Every successive taker of the paper is, of course, bound to take notice of this stipulation, and, instead of' looking only to the face of the instrument for the time of its maturity, as in case of commercial paper he must, is put upon inquiry whether or not any agreement for a renewal or extension of time has been made by his proposed assignor or by any previous holder.”' (p. 263.)
. In a note in 17 Ann. Cas. 55 the cases upon the general'subject of certainty in time of payment of negotiable paper are collated, including Bank v. Gunter, 67 Kan. 227. The cases are also collated in a note in 125 Am. St. Rep. 199. Many of these authorities are discussed in exhaustive briefs furnished by the parties here. There is a distinct line of cleavage between cases holding in harmony with Bank v. Gunter and those in other jurisdictions holding that stipulations. like the one contained in that case are not fatal to negotiability. No useful purpose would be served by reviewing these cases here. The opposing views upon this question are clearly stated in the majority and minority opinions in First National Bank v. Buttery, 17 N. Dak. 326, 332.
The plaintiff calls attention to the statute declaring that the negotiable character of an instrument is not affected by a provision which “waives the benefit of any law intended for the advantage or protection of the obligor.” (Laws- 1905, ch. 310, § 12, Gen. Stat. 1909, § 5258.) By applying this waiver to subdivision 6 of section 127 of the same statute (Gen. Stat. 1909, §5373, subdiv. 6), providing for the release of parties secondarily liable by extensions given without their consent, it is argued that the maker is bound. These provisions are not novelties in commercial law. But the plaintiff’s contention overlooks the fact that the question to be determined in this case is whether the instrument is a negotiable promissory note; and this depends on whether it has the element of certainty in time of payment necessary in commercial paper. It is not a question of the waiver of the right of an obligor upon a negotiable instrument to be released by an extension of time given without his consent, but whether there is such an instrument. Simple contracts, although for the payment of money, can not be transformed into commercial paper by mere waiver.
The court is satisfied that the rule it has adopted, and followed in the cases first referred to, is sustained by the weight of authority and by the better reasoning. The formal essentials of a negotiable instrument are so simple and so generally known that there is little reason for the insertion of debatable provisions. To encourage experiment in this field would tend to uncertainty in a matter which ought, as far .as pos sible, to be free from doubt. As observed by Mr. Chief Justice Gibson, in Overton v. Tyler, 3 Pa. St. 346:
“A negotiable bill or note is a courier without luggage. It is a requisite that it be framed in the fewest possible words, and those importing the most certain and precise- contract; and though this requisite be a minor one, it is entitled to weight in determining a question of intention.” (p. 347.)
The same court, by Mr. Justice Sharswood, in Woods v. North, 84 Pa. St. 407, said:
“It is a necessary quality of negotiable paper that it should be simple, certain, unconditional, not subject to any contingency. It would be a mere affectation of learning to cite the elementary treatises and the decided cases which have established this principle. It is very important to the commercial community that it should be maintained in all its rigor.” (p. 409.)
The importance of avoiding stipulations in commercial paper like the note under consideration is also emphasized in Woodbury, Williams & English v. Roberts, 59 Iowa, 348.
After a careful consideration of this important and interesting question we are satisfied that the plaintiff’s contention rests upon a repudiation or modification of the rule declared in the Gunter case, rather than upon the denial of its application.
The judgment is affirmed. | [
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The opinion of the. court was delivered by
Mason, J.:
The holder of a tax deed executed a conveyance to James A. Hill. On May 11, 1906, Hill obtained a decree, founded upon publication service, quieting title against S. W. Gilliland, the record owner of the patent title. On January 18, 1908, W. M. Starling, to whom Gilliland had conveyed the land, applied to have the judgment vacated under section 77 of the old code, corresponding to the present section 83, and was permitted to file an answer claiming title and disputing the validity of the tax deed. In reply to this R. E. Colburn filed a pleading asserting that he had purchased the property in good faith in reliance upon the judgment, and on that account denying Starling’s right to recover against him. A trial of the issues thus formed resulted in a judgment in favor of Starling, and Colburn appeals.
To procure a reversal Colburn' is required to show either that the tax deed was valid or that the evidence did not support a finding that he was not a purchaser in good faith in reliance upon the decree quieting title. The deed was less than five years old, and was voidable for the reason- that it failed to state the amount for which the land was sold at the tax sale. Colburn testified that he bought the land for a valuable consideration, relying on the decree. On the other hand, the attorney for Starling testified in substance that on January 15, 1908, he told Colburn that in behalf of the owner of the land he was trying to get a settlement with the claimants under the tax title, and that in reply Colburn said he knew nothing about the matter and was-not interested in it — that he hád no interest in the land. Colburn denied having made these statements, but the court must be deemed to have resolved the dispute against him. No witness undertook to say when the deed to Colburn was paid for or delivered. The acknowledgment, as well as the instrument itself, was dated January 11, 1908. That is prima facie, but not conclusive, evidence of the time of delivery. (13 Cyc. 731.) Here the inference of a delivery on January 11 is overcome by Colburn’s statement, made four days later, that he then had no interest in the property. We need not decide whether the information he received — that the owner of the land was seeking a settlement with the holder of the tax title — was sufficient to prevent his thereafter becoming a purchaser in good faith. At all events he was not protected by the statute unless he bought and paid for the land prior to January 18, 1908, the date when the proceeding was begun to set aside the decree quieting title. His deed was not ■ filed for record until February 8, 1908, and the trial court was justified in finding that there was no convincing proof of its delivery before that time.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant brought this suit and alleged that the appellee executed and delivered to him a certain deed of general warranty for a tract of land in Neosho county, containing 2762%oo acres; that the premises were encumbered with a certain easement, or servitude, known.as a levee, running through the land and occupying a large portion thereof, to wit, about fifteen acres, which levee was under the control of the board of county commissioners of that county, and subj ect to special taxes levied for repairs; that it also had the effect of holding surface water on the land, to the great damage and detriment thereof; that by reason of such levee and the possession and control thereof by the board of county commissioners and their superintendent he has no control or possession of that portion of land so occupied by the levee; that the levee was and is of no benefit to the land; and that by reason thereof there is a breach of the appellee’s covenant of warranty against encumbrances; and prayed for damages in the sum of $5000. To this petition the appellee demurred. The court sustained the demurrer, and the appellant brings the case here. The only question in the case is whether there was error in the ruling.
There can be no question under the authorities that the levee and the right of the county commissioners and their superintendent to enter upon the land and repair the same constituted an encumbrance upon the land. It is conceded in the briefs that the levee was erected under the authority of chapter 69 of the General Statutes of 1909 (Laws 1893, ch. 104, §§ 1, 3, 4, 6-9, 12, Laws 1897, ch. 147, §§ 1-3, Laws 1901, ch. 248, §§ 1, 2, Laws 1905, ch. 216, §§ 1, 2, Laws 1909, ch. 80, §§ 1-3), that the statute is constitutional, and a levee erected under the act is a public utility. (See Railway Co. v. Cambern, 66 Kan. 365.) The appellant, however, contends that the levee is less a public utility than is a public highway, and, hence, falls within' the quasi public easements. We see no force, however, in this distinction. The state has no power to take the land of an individual under the power of eminent domain except for a public use, and must compensate the owner therefor or provide for such compensation. The extent of the public use does not seem to be determinative of the right.
The only real question involved is whether the levee is such an encumbrance that, under all the circumstances, the existence thereof constituted a breach of the covenant of warranty. It is conceded in the appellant’s brief that the encumbrance is analogous to that of a public road, and it is contended that a public road is such an encumbrance upon land that, if the land be conveyed without any exception of the highway, it constitutes a breach of the covenant of warranty. This seems to be the law by the decisions of the courts generally in the New England states and some other states, and it is conceded not to be the-law by the decisions of the courts of New York, Pennsylvania and Wisconsin. This question seems never to have been decided by this court. We conceive that it would be a great surprise to the people and to the bar of the state if this court should decide that a public highway is such an encumbrance.
Distinctions have been made that the knowledge or want of knowledge of the purchaser of the existence of an encumbrance upon land was determinative of whether or not it constituted a breach of warranty. No general rule can be based upon this distinction. One may buy a tract of land knowing that it is encumbered, by a mortgage for instance, or that some outstanding title exists, and rely upon the warranty as a guaranty that the mortgage will be discharged or the title perfected, and his knowledge of the existence of the encumbrance would not defeat his right to recover on the covenant in case the mortgage should not be discharged or the title'be not perfected.
The proper distinction it seems to us is whether the encumbrance is a physical one, open to the view of the purchaser, and which, from the very nature of the case, is a continuous easement, or servitude. For instance, the public has a right to the continuance of a flowing stream across one’s land. The owner of the land may divert the stream from its channel upon his. own land, provided he also returns it to the channel upon his own land. He may not prevent the stream, from crossing his land or from entering upon the land, or from passing therefrom, in the proper channel. In a. sense, this constitutes a servitude upon his land, yet it would nowhere be held that the existence of the' stream constitutes a breach of a covenant of perfect title.
The true principle of interpretation of contracts by the courts is to give effect to the intention of the contracting parties, and it is not to be presumed that a seller of land would make a conveyance and warrant against an encumbrance which is plainly visible upon the land, and which, from its very nature, can not be removed, with the understanding that he must pay such damage as its continuance may occasion the purchaser. Nor is it to be presumed that a purchaser would make his purchase upon the assumption that the grantor was to remove the encumbrance which, under the law, known to each, the grantor has no right to remove or which is incapable of being removed. In other words, it is not to be presumed that two contracting parties would make a contract of sale and purchase of land which is broken the instant it is completed, and the only possible remedy of which is the payment of damages by the grantor to the grantee — in effect that the grantor should immediately repay a part or the whole of the purchase price. It is more reasonable to presume that both the grantor and the grantee, in fixing the purchase price, would consider the damages necessarily and inevitably fol lowing from the continuance of the encumbrance, and contract with reference to such physical fact.
Both the grantor and the grantee, when consummating the sale and purchase of the land in question, are presumed to have known of the physical existence of the levee upon the land, that it could not be removed by any act of either of them, and that the 'public had a right to maintain the same in perpetuity; and it is only reasonable to conclude that the parties contracted with this in view, and that the purchaser did not rely upon any covenant for the removal of the encumbrance occasioned by the levee or with any expectation of remuneration for any damage caused thereby.
It may well be-conceded that a greater number of courts of different states of the Union, strictly construingTike covenants, have held similar easements, or servitudes, upon land as a breach of the covenant. The question has not been heretofore decided in this state, we believe, as between the grantor and grantee; but there is, as is conceded by the appellant, very respectable authority for holding this view, and we are impressed with the idea that it is sustained by the better reasoning.
“Where, however, the encumbrance does not affect the title, but the physical condition of the property, e. g., an open, notorious easement of which it is the servient tenement, the purchaser must be presumed to have seen it, and to have fixed his price with reference to the actual condition of the land at the time, and such encumbrance is no breach of the covenant.” (Headnote to Memmert v. McKeen, 112 Pa. St. 315 in 4 Atl. 542, 543, ¶ 2.)
(See, also, Desvergers et al. v. Willis, 56 Ga. 515; Joseph Lallande, executor, v. Wentz & Pochelu, 18 La. Ann. 289; Smith and another v. Hughes, 50 Wis. 620; Kutz v. McCune, 22 Wis. 628.)
The judgment is therefore affirmed. | [
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Per Curiam:
This is the second time this litigation has been before us. (Railway Co. v. Newberger, 63 Kan. 884, 65 Pac. 655.) On the second trial the jury found that the special contract set up by the railroad company and purporting to limit its liability was not consented to by the consignees and in effect that it was without validity. The other issue was found in favor of the railroad company; that is, that the fire was not occasioned, and the goods shipped were not destroyed, through the negligence of the railroad company. The general verdict — on a trial involving the extraordinary liability of the railroad company —was in favor of the shippers. The extraordinary liability of a carrier of goods extends, not only during transit to destination, but also until the consignee has a reasonable time thereafter to inspect and remove the goods during business hours. (L. L. & G. Rld. Co. v. Maris, 16 Kan. 333; Mo. Pac. Rly. Co. v. Grocery Co., 55 id. 525, 40 Pac. 899.) A finding was made by the jury that a reasonable time for inspection and removal was not afforded the consignees after the arrival and before the destruction of the goods. No question is made as to the sufficiency of the evidence to support the findings and verdict, as the motion for a new trial once filed was withdrawn. It is now claimed that the last inquiry was limited to the mere question of negligence, and that the former opinion so indicated. An expression of'that kind does appear in the motion, but it appears from the pleadings and the proceedings that the question whether the railroad company was liable as an insurer, or whether its liability was limited by an alleged contract, was submitted at the first trial, and it is manifest that it was also tried and determined in the second trial. In view of these facts, it cannot be held that the parties are confined to the mere matter of negligence.
The only question presented is whether there should have been judgment upon the special findings; and assuming, as we must, that the instructions submitting the case were correct and that the evidence did sustain the findings made, it must be held that no error was committed in denying the company’s motion for judgment on the special findings or in giving the judgment that was rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This controversy arises over the construction of a will of real estate. Prior to July 29, 1895, the testator was the owner of the land in dispute. On that day he conveyed it to another. Upon October 11, 1895, he made his will, in the following terms :
“ I, James S. Durboraw, of Drywoocí township, Bourbon county, Kansas, being of sound mind and dispo. ing memory, do make and publish this my last will and testament.
' “First: I direct that my just debts and funeral expenses be fully paid.
“Second: I hereby devise and bequeath to my grandson Alexander Durboraw all my real and per-, sonal property of every description and wherever situate. The real property above referred to is more particularly described as follows : The undividéd one-half of the northeast quarter of section eleven (11), township twenty-six (26), range twenty-five (25), situate in Bourbon county, Kansas ; also the undivided one-half (i) of the northwest quarter of section eleven (11), township twenty-seven (27), range twenty-three (23), situate in Bourbon county, Kansas ; also the sixty acres I still own of the home place, where I have lived for the last twenty-five years.
“Third: I hereby nominate my daughter Mary Dalton to be executrix of this my last will and testament, without bond-. And it is my further wish that the executrix above named be not required by the pro bate court to make or return any inventory of my property.
“In witness whereof, I hereunto sign my name to the above and foregoing as and for my last will and testament, this 27th day of September, 1895.
Jambs S. Durboraw.”
Upon October 29, 1895, the tract in question was reconveyed to him, and he continued to own it until his death, two years later. At the date of the will he owned no real estate except that described therein. If the after-acquired real estate passed by the will the decision of the district court was correct. What is the law ?
Section 7991, General Statutes of 1901, reads as follows :
“Any estate or interest in lands or personal estate or other property acquired by the testator after the making of his will shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”
Under this statute it is not necessary that the will show that the testator had in contemplation at the time of making it the future acquisiton of real estate which he intended should pass thereby. (Winchester v. Forster, 3 Cush. 366.) Nor is it necessary that real estate to be acquired in the future be referred to in express terms in order to pass. The words “clearly and manifestly” are themselves indefinite, and the statute does nothing more than require that the will disclose an intention that such land pass under it.
In Brimmer v. Sohier, Executor, 1 Cush. 118, 132, it was said:
“The Rev. Sts. c. 62, § 3, provide that ‘any estate, right or interest in lands, acquired by the testator after the making of his will, shall pass thereby in like manner as if possessed at the time of making the will, if such shall clearly and manifestly appear, by the will, to have been the intention of the testator.’
“It is not supposed that the intensives ‘clearly and manifestly,’ as used in this section, can have any well-defined or precise effect in the construction of wills. They are too vague and indeterminate to form a rule of much practical use. The statute requires, undoubtedly, that the intention of the testator should be fairly inferable from the will, but it does not require an express declaration. The intention is a matter of deduction or inference from given premises.”
In Briggs v. Briggs, 69 Iowa, 617, 29 N. W. 632, the opinion said:
“Under the common law, a testator had no power to bequeath subsequently acquired real estate — seizure at the time of executing the will being requisite to enable him to convey. This rule has been abrogated by statute in this and many of the other states of this country in which the common law prevails, and in England. Our statute on the subject is section 2323 of the code, and is as follows : ‘ Property to be subsequently acquired may be devised when the intention is clear and explicit.’ It is to be observed that the rule established by this provision relates to the' disposition of property of every description, and not to real estate alone. In this respect the statute differs from those of most of the other states by which the common-law rule above referred to was abrogated. The word ‘property,’ when used in the statutes of this state without qualification or limitation, includes both real and personal property. Code, §45, subd. 10 Under the common law, however, the testator could bequeath personal property to be subsequently acquired. The statute creates no new power with reference to the disposal of that class of property, but simply reenacts what has always been the law on that subject, and what would have continued to be the law without,any enactment of the subject. The manifest intention of the legislature was to confer upon the testator the same power with reference tc the disposal of both' classes of property which hac formerly existed with reference to the disposal of personal property. The same rules, of construction should therefore be now applied in determining whether subsequently acquired real estate passes by devise which before the enactment of the statute were applied in determining the same question with reference- to personal property, unless the words, ‘when the intention is clear and explicit,’ as contained in the statute, modify or change them. We are of the opinion, however, that no new rule of construction is created by this provision. The meaning •of the section is, we think, that subsequently acquired property shall be held to pass by the bequest-, whenever the intent of the testator to have it so pass is fairly to be inferred from the provision of the will, when construed according to the established rules for the construction of such instruments; and it is not necessary that the intention be expressed in direct ■language.”
Besides this, a will, it was said, “speaks from the death of the testator.” (Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25.) The testator makes his will in view of that circumstance. He understands that, until his decease, the will is ambulatory, and that he may buy and sell at pleasure, but that, being written in anticipation of that event, his language must necessarily be referable thereto. Hence the will must be so construed as to prevent intestacy with reference to any portion of the decedent’s estate, if that can reasonably be done. (Mann v. Hyde, 71 Mich. 278, 39 N. W. 78 ; State of Connecticut v. Smith, 52 Conn. 557, 563; Vernon v. Vernon et al., 53 N. Y. 351; Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458 ; Hardenburgh v. Ray, 151 id. 112, 127, 14 Sup. Ct. 305, 38 L. Ed. 93 ; Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846.)
In view of these rules, it would seem that the par ticular description contained in the will under consideration was intended merely as an exhibition of the present location and extent of the devisor’s landed estate, and not as a limitation upon the preceding grant. The language is, “all my real and personal property of every description and wherever situate.” At the testator’s death his devisee was to take. It was then his debts and funeral expenses were to be paid ; it was then his personal property was to vest -t it was then his real property was to pass ; it was then-all the property he had was to go to his grandson. The conclusion seems irresistible that the devisor intended that he should not die intestate as to any item of his property, and hence that - all the real estate he died seized of should be disposed of by the will.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action to determine the extent of interests of the parties in certain real estate and to quiet the title of plaintiffs to their respective interests therein. The case was here before (168 Kan. 203, 212 P. 2d 302). The present appeal is from an order of the court of November 13, 1950, denying defendant’s motion to dismiss the action on the ground that the court had no jurisdiction to hear and determine the case.
' The portions of the record pertinent to this appeal may be stated briefly as follows: On April 18, 1947, Nellie Henderson and three others, as plaintiffs, filed an action in the district court of Ellis county to have determined their respective interests in a described tract of 680 acres of land situated in Ellis county. The sole defendant was Mollie L. Richardson, upon whom personal service of summons was made. For reasons not material here plaintiffs filed an amended petition December 1, 1947, in which it was alleged that the plaintiff, Nellie Henderson, was the owner of an undivided seven-eighths interest in the surface rights and an undivided six-eighths interest in the oil, gas and other minerals in and under the real estate subject to certain conveyances made by her, which are not here involved; that each of the other plaintiffs owned an undivided one-twenty-fourth interest in and to the oil, gas and other minerals thereunder, and that the defendant, Mollie L. Richardson, owned an undivided one-eighth interest in the surface rights and in the oil, gas and other minerals thereunder; that the interests of all the parties were subject to certain oil and gas leases, which were described, and that oil in paying quantities had been discovered and was being produced. The petition set out a chain of title to the property which tended to support the claims of plaintiffs as to the respective interests of the parties. It alleged that the defendant claims and asserts a greater right, title and interest than her undivided one-eighth interest in and to the land and the oil, gas and mineral rights therein adverse to the right, title, interest and estate of the plaintiffs, the nature, character and extent of which is unknown to plaintiffs; that whatever such claim of the defendant may be the same is junior and inferior to and wholly null and void except as to her undivided one-eighth interest. The prayer was for a discovery of the adverse claims of the defendant to a greater than an undivided one-eighth interest and that she be required to answer and fully set forth and disclose her claim to a greater than an undivided one-eighth interest in the land and minerals, and that plaintiffs be decreed to be the owners of the real property and the oil, gas and minerals thereunder in accordance with the respective interests as alleged in the petition, and that their title thereto be quieted as against the defendant, Mollie L. Richardson, except as to her undivided one-eighth interest.
On May 25, 1948, the defendant, Mollie L. Richardson, filed her answer in which she claimed an undivided one-third interest in the surface of the real property and in the oil, gas and other minerals thereunder. To this answer plaintiffs on July 28, 1948, filed a motion to strike certain portions thereof upon the ground that they constituted no defense. This motion was heard by the court and on October 1, 1948, was sustained as to paragraphs 10, 11, 12 and 13 of the answer. In due time and on November 23, 1948, the defendant appealed from the order of the court of October 1, 1948. That appeal reached this court and was decided on December 10, 1949, sustaining the ruling of the trial court (168 Kan. 203, 212 P. 2d 302).
In the meantime and on April 10, 1949, Nellie Henderson, a resident of Rooks county, died testate. Her will was duly admitted to probate in the probate court of Rooks county on May 13, 1949, and Donald Collins was duly appointed administrator c. t. a. of her estate. On June 18, 1949, upon consideration of the application duly made therefor, which application recited the facts of this action having been brought in the district court of Ellis county, Kansas; that defendant had taken an appeal to the supreme court; that in excess of $50,000 belonging to the estate from oil production had been impounded in a suspense account pending the outcome of the Ellis county litigation, and requesting specific orders with respect thereto, it was by the probate court of Rooks county adjudged and ordered that the administrator c. t. a. should have possession of all of the real estate belonging to the decedent at the time of her death; that none of the real estate involved in the litigation constitutes the homestead of the surviving spouse of decedent, and that the administrator c. t. a. should be authorized and directed to revive the quiet title action in the district court of Ellis county and the supreme court of the state of Kansas in his name as administrator c. t. a. of the estate of Nellie Henderson, and it was “by the court, considered, ordered, adjudged and decreed that Donald Collins, as administrator c. t. a. of said estate [of Nellie Henderson], be and he is hereby authorized and directed to forthwith take possession of all of the real estate belonging to said decedent at the time of her death, wherever same may be situated,” and that the administrator c. t. a. “be, and he is hereby authorized and directed to forthwith cause the quiet title suit on the Ellis county real estate, which said suit is now pending in the district court of Ellis county, Kansas, and in the supreme court of the state of Kansas, to be revived in him as administrator c. t. a. of said estate, and that he is hereby authorized to employ and retain counsel for the purpose of prosecuting said suit, and to pay therefor, subject to the approval of this court in said matter, and that he be authorized to do all things necessary to diligently prosecute said suit to completion.”
On July 6, 1949, Mollie L. Richardson, defendant in the Ellis county action, filed therein a motion for an order of revivor in which she alleged the death of Nellie Henderson, a resident of Rooks county, the probate of her will, and that Donald Collins was duly appointed administrator c. t. a. of the estate of Nellie Henderson, deceased, and prayed that the action be revived in his name as such administrator. The parties to the action in Ellis county stipulated for the revivor, and on July 11, 1949, the court made an order by which the action was revived in the name of Donald Collins, administrator c. t. a. of the estate of Nellie Henderson. A similar motion was filed in the case pending in the supreme court and an order of revivor was made on July 19, 1949. On July 19, 1949, Donald Collins, administrator c. t. a. of the estate of Nellie Henderson pending in the probate court of Rooks county, filed an inventory of the estate, which inventory described the real property involved in the litigation in Ellis county and listed the ownership of Nellie Henderson at the time of her death in this property to be the same as was alleged in her amended petition filed in the district court of Ellis county. After the mandate went down from the supreme court in the case decided in 168 Kan. 203, 212 P. 2d 302, and on February 16, 1950, Mollie L. Richardson filed in the probate court of Rooks county, in the matter of the estate of Nellie Henderson, deceased, her petition for allowance of demand, which included a claim for an undivided one-third interest in and to the surface and mineral rights of the land involved in the action in Ellis county. On May 15, 1950, Mollie L. Richardson, defendant in the Ellis county action, filed therein ,an amended answer in which she made claim to one-third of the surface and mineral rights in the land involved in that action. On October 4, 1950, plaintiffs filed a reply to this answer. There was a pretrial conference on October 26, 1950, in which certain matters were agreed upon by the parties. On October 30, 1950, defendant in the Ellis county action filed in that action a “motion to dismiss for lack of jurisdiction,” which alleged the death of Nellie Henderson on April 10, 1949, a resident of Rooks county, the probate of her will on May 13, 1949, and the appointment of Donald Collins as administrator c. t. a.; that he duly qualified as such, and that administration of the estate of Nellie Henderson was pending in the probate court of Rooks county; that the real property in controversy in the Ellis county case is listed in the inventory of the assets of the estate in the probate court of Rooks county, and that she had filed a demand in that estate which has not been determined; further alleged that the probate court of Rooks county has jurisdiction of all of the property of the estate of Nellie Henderson and has “exclusive jurisdiction to determine all controversies pertaining to the property listed as assets of the estate of said decedent in said inventory and appraisement and has a proceeding pending in said estate for determination of the exact controversy” here involved. She further alleged “that the district court of Ellis county, Kansas, does not have jurisdiction of the property or interest in controversy herein and does not have jurisdiction to determine said controversy, and this action should be dismissed in this court.” This motion was duly heard in the case pending in the district court of Ellis county and denied on November 13, 1950, and by consent of counsel the case was set for final hearing on December 13, 1950. On December 4, 1950 the defendant filed her notice of appeal from the order of the court overruling her motion to dismiss the action. This is the case now before us. Since this motion raises a question of the jurisdiction of the court the same as a demurrer would have done under G. S. 1949, 60-705, First, we review the ruling of the court denying it. (See, Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010.)
In. this court counsel for appellant freely concede, as they must, that when the action was first brought in the district court of Ellis county that court had jurisdiction of the action; that summons was properly had upon defendant, who appeared in the action and filed various pleadings, and that upon the death of Nellie Henderson the action was properly revived in the district court of Ellis county. In their brief they say:
“The principal question now involved in this litigation is — ‘Did the district court upon tire death of the plaintiff Nellie Henderson and the revivor of the action in the district court of Ellis County, Kansas, lose jurisdiction?’ ”
It is the contention of appellant that the district court of Ellis county lost jurisdiction and that the jurisdiction became vested in the probate court of Rooks county in the estate of Nellie Henderson, deceased. Counsel for appellant quote G. S. 1949, 59-1401 and 59-2238, and contend that neither of them is applicable or decisive of the question here presented. They cite and rely heavily upon the case of In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879 (see subsequent appeal, Waldorf v. Waldorf 168 Kan. 690, 215 P. 2d 149), and what is said in the opinion (pp. 522-526). That was an action brought in the district court of Sedgwick county by the executor of a decedent’s estate for specific performance of a contract relating to real and personal property. The question arose as to whether the proceedings should have been in the probate court. The trial court held the district court properly had jurisdiction of the case, and we affirmed on that point. In the course of the opinion the writer undertook to classify cases in which the original jurisdiction was in the probate court, or in the district court, and did so (p. 522) by saying:
“The decided cases may be broadly classified into two classes:
“First class. Those cases in which the plaintiff sought to get something out of the estate. . . .
“Second class. Principally, those cases, naturally fewer in number, wherein an administrator or executor sought to bring property of some sort into the assets of the estate, or otherwise to realize something of benefit to the estate.
Counsel for appellant argue at some length that since the administrator c. t. a. filed an inventory in the probate court of Rooks county in the estate of Nellie Henderson, deceased, in which he included interest claimed by her in the action pending in Ellis county as a part of the assets of her estate in the probate court, and since Mollie L. Richardson, the defendant in the action in Ellis county, had filed a claim in the probate court of Rooks county in the estate of Nellie Henderson, deceased, claiming the same interest in the Ellis county property inventoried in the estate that she claimed in her answer filed in the action pending in Ellis county, that she is trying to get somthing out of the estate of Nellie Henderson, hence that the case falls within the first class of cases as classified in In re estate of Thompson. Counsel for appellees argue to the contrary, that Nellie Henderson and her successor in interest, the administrator, c. t. a., are endeavoring in the action in Ellis county to have her claimed interest in the estate established by a decree of the court and to have her title to such interest quieted in her as against the defendant, so that such interest may be properly distributed by the probate court of Rooks county; and in addition thereto it is argued that there is impounded some $86,000 for oil sold from the Ellis county property awaiting the outcome of the final disposition of that case and which, if plaintiff’s contentions respecting the title are sustained, would come into the estate of Nellie Henderson pending in Rooks county for distribution, hence that it cannot be said they are not trying to bring' something into the estate.
We think this argument resulting from the classification of claims made by the writer of the opinion in the case of In re Estate of Thompson is more interesting than decisive. In fact, the court was careful to limit this classification to the case then before the court. This is clear from several portions of the opinion, and specifically from the following (p. 523):
“As to the second class of cases, the ground has not yet been so fully covered, and we shall not anticipate issues. But we think the disposition made of the cases decided rests upon a sound basis. The code now provides in G. S. 1947 Supp. [G. S. 1949], 59-1401, that the executor or administrator shall have the right to the possession of all the property of the decedent, real as well as personal, with certain named exceptions, and may maintain an action for possession of the real estate or to quiet title to the same. Prior to the enactment of the code, such actions were brought in the district court and the code contains no specific provision changing that rule. Consequently, in the cases that have arisen, this court has found no reason to conclude that the legislature intended to change the forum, as was the case in various actions falling within the first class of cases heretofore referred to. . . .”
We think counsel for appellant rely too heavily upon the case of In re Estate of Thompson. While the classification there made was not inappropriate as applying to that case it is clear that the court had no intention and did not attempt to lay down a rule for all cases in the future which might arise under G. S. 1949, 59-1401. Indeed, the statute makes no such classification of cases. We shall not attempt to decide the controversy between counsel as to whether the action pending in the district court of Ellis county seeks to bring into or to take from the estate of Nellie Henderson pending in the probate court of Rooks county. The pertinent part of the statute (G. S. 1949, 59-1401) reads:
“The executor or administrator shall have a right to the possession of all the property of the decedent, except the homestead and the allowances to the surviving spouse and minor children. . . . He may by himself, or with the heirs or devisees, maintain an action for the possession of the real estate or to quiet title to the same.”
Since the statute (G. S. 1949, 59-301) gives the probate court original jurisdiction (3) “To direct and control the official acts of executors and administrators, . . .” it was proper for Donald Collins, administrator c. t. a. of the estate of Nellie Henderson, to apply to the court for authority to cause the quiet title suit in Ellis county and the suit pending in the supreme court to be revived in his name as administrator c. t. a. and for his authority to employ and pay counsel and to do all things necessary to diligently prosecute the suit to completion. Such an order was applied for and granted. The suit was properly revived under the authority of G. S. • 1949, 59-2238, and by virtue of that statute the judgment in that suit will be filed in the probate court of Rooks county in the estate of Nellie Henderson, deceased.
Counsel for appellant have cited a number of our cases and discussed them as having some bearing upon the question before us. We have examined all of the cases cited and considered all of the argument, but find no reason to set out the cases and discuss them here at length. We notice a fact not mentioned here by counsel that there are three other plaintiffs in the action pending in Ellis county who set up their interests in the property and ask to have their title quieted thereto. There certainly is no reason as to them why the action should be dismissed.
We find no error in the court’s ruling and the order appealed from is therefore affirmed. | [
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