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The opinion of the court was delivered by
Price, J.:
The question in these three consolidated workmen’s compensation cases is whether the accidental injuries resulting in the death of all three decedents arose out of and in the course of their employment as mechanics by the respondent Chevrolet dealer in Fort Scott, Kansas.
Both the Commissioner and trial court held that the fatal injuries were compensable, and from such rulings the respondent and its insurance carrier have appealed.
The factual background, concerning which there is no material dispute, is as follows:
The respondent, Shaw Chevrolet, is a partnership consisting of Ralph W. Shaw and his wife, Leona, and it owns and operates the Chevrolet dealership and garage at Fort Scott, having purchased it from the Townsend Chevrolet in March, 1950. It continued the operation of this agency and garage at the same location, with the same personnel, and under the same policies as the business had been conducted by its predecessor. Decedents Blair, Ritz and Townsend had been employed as mechanics at this Chevrolet garage for two, five and four years, respectively, and stayed on as mechanics for respondent when it purchased the agency.
Throughout the state of Kansas, and perhaps all over the country, it has been the policy and custom of the Chevrolet Division of General Motors Corporation to give an annual examination for automobile mechanics employed in the various Chevrolet agencies. This practice has existed for at least fifteen years and is well-established. The annual examinations are known as “approved mechanics’ examinations” and cover information contained in bulletins, shop manuals and other data put out throughout the year by the Chevrolet Division of General Motors Corporation. A mechanic passing such written test receives a certificate or “diploma,” which in many instances is displayed in the shop where he is employed. It is generally recognized that a mechanic who has passed these tests is better able to secure employment, and, at the same time, the employer is thus able to advertise that it has “factory-trained mechanics.” Such was the case here.
For a number of years the written examinations conducted by the parent Chevrolet Division in the district in which Fort Scott is located had been given in the Besse Hotel at Pittsburg, Kansas, some thirty miles south of Fort Scott. Each of the three decedents had taken the examination in previous years — in fact, to do so had become so common and accepted as to amount to a custom. Me chanics expected to take these examinations, and their employers also expected them to do so.
In the early part of April, 1950, Mr. Shaw, of the respondent, received a letter from the district manager of the Chevrolet Division advising that the examination would be given at the Besse Hotel in Pittsburg on the evening of April 18. When Mr. Shaw received this communication he handed it to his shopforeman Ritz (one of the decedents), and in substance told him, “Here is your information on the time and place of the meeting,” or, “Here is your information on the mechanics’ examination meeting,” and that, “You’d better get together with the boys and decide how you are going.” He did not instruct Ritz or any of the other mechanics that they had to go, and, in fact, no definite instructions one way or the other were given. It just appears that all parties concerned assumed and expected all of respondent’s mechanics to attend and take the examination.
On the evening of April 18, Blair, Ritz and Townsend worked at respondent’s garage until about the usual quitting time, five o’clock, and then each went to his respective home for the evening meal. Between six and six-thirty o’clock that evening Townsend, driving his own automobile, picked up Blair and Ritz, and the three of them left for Pittsburg in Townsend’s car. They arrived safely in Pittsburg and took the examination. Respondent, as such, had nothing to do with the giving of the examination, and Mr. Shaw was not present. 113 mechanics, employed by 26 Chevrolet dealers, from 26 different towns in the area, took the examination, including all six mechanics employed by respondent, the other three having gone to Pittsburg in another car. The examination was over by nine oclock, or shortly thereafter, and decedents were last seen in the hotel lobby. At about 10:50 p. m. the automobile in which they were returning to Fort Scott was involved in a collision with a truck on U. S. Highway No. 69, about four miles south of Fort Scott. All three died as a result of their injuries. This highway was the direct and regular route between Pittsburg and Fort Scott. Bus and train schedules between the two towns were such that travel by private automobile was the only feasible and practical means of transportation, under the circumstances and at the time in question.
Each of the three decedents worked for respondent at a weekly wage, and there was no precedent, agreement or understanding that they were to be paid any compensation by way of overtime, or otherwise, for the trip in question. Before leaving Fort Scott, however, Townsend drove to a gasoline filling station at which respondent maintained a charge account and purchased five gallons of gasoline, which he charged to respondent through a prearranged understanding. Respondent later paid for this gasoline.
The Commissioner and the lower court held that the accidental deaths were compensable, made an award in each case in favor of •the surviving widow and minor children, and from such rulings these appeals have been taken. What is said, both with reference to the facts and the law, applies equally to each of the three cases, and they will be treated as one.
In support of their position appellants advance a number of arguments, but, in the main, it may be said their contentions are (1) that the trip to Pittsburg to take the examination cannot be said to be a part of decedents’ employment so as to bring them within the provisions of the Workmen’s Compensation Act which require that in order to be compensable an injury must arise out of and in the course of employment, and (2) even assuming, for the sake of argument, the taking of the examination be held to be an incident of, or a part of their regular employment within the meaning of the act, .still, after the examination was completed the “employment” was ■ended and that after they had started home to Fort Scott they had left the duties of their employment and compensation would be barred under the provisions of G. S. 1949, 44-508 (k), which read:
“The words ‘arising out of and in the course of employment’ as used in this .act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such ■duties, the proximate cause of which injury is not the employer’s negligence.”
Here there is no question concerning negligence on the part of respondent employer, and so we are confronted solely with the question whether these fatal injuries arose out of and in the course of employment within the meaning of the act.
Was the trip to Pittsburg to take the examination a part of decedents’ employment so that it can be said the fatal injuries sustained by these three mechanics arose out of and in the course of their employment by respondent? If, so, was there a causal connection or relationship between such employment' and the accidental injuries resulting in their deaths?
It is perhaps true that in compensation cases, more so than in ■other types of litigation, no two sets of facts and circumstances are
precisely similar. That is true here. Counsel for neither side have cited, and our limited search has failed to disclose, any reported case dealing directly with the specific question involved under facts closely analogous to those before us. As a result, resort to decisions urged in support of their position by appellants, among them being Repstine v. Hudson Oil Co., 155 Kan. 486, 126 P. 2d 225; Covert v. John Morrell & Co., 138 Kan. 592, 27 P. 2d 553; and Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542, really throws little light on the question.
Looking at this matter from the over-all picture, it seems clear to us that the lower court was correct in concluding the annual trip to Pittsburg to take the examination was actually contemplated by the very employment itself. Each of the decedents, as well as their fellow mechanics, had taken the examination in previous years. Such practice was prevalent throughout the territory. It is true that in passing the examination benefit would accrue to the mechanic, but it is also true that it resulted in considerable benefit to the employer. In this day and age such matters are of common knowledge. The decedents went to Pittsburg with the knowledge and consent of their employer, on gasoline furnished by it. While the evidence does not show they were specifically directed or instructed to go, yet it is clear the annual trip to Pittsburg to take the examination was so well-established as to amount to a custom of the employment. Mechanics expected to take the examinations and knew that their employers expected them to do so. We have no difficulty in concluding : that the trip to Pittsburg to take the examination was, under all of the facts and circumstances disclosed by the evidence, incidental to and actually a part of decedents’ employment within the meaning of the compensation act, and therefore that their fatal injuries arose out of and in the course of their employment. While factually dissimilar, see Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820; Stapleton v. State Highway Comm., 147 Kan. 419, 76 P. 2d 843; Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P. 2d 841; and Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89, on the general subject.
This brings us to appellants’ second contention, namely, that even though the taking of the examination be held to be an incident of and a part of the employment, still, once the examination was completed such “employment” would be concluded, and that after decedents had started home to Fort Scott they had thus left the duties of their employment within the meaning of 44-508 (k), supra. In support of this argument they rely chiefly upon Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P. 2d 839, and Pearson v. Electric Service Co., 166 Kan. 300, 201 P. 2d 643, both of which dealt with this provision of the statute. In the Abbott case it was held that where one who was employed as a helper in an elevator, with no regular hours of employment, had quit work at night but later in the evening of the same day, while on the way from his home to the elevator under instructions from his employer to close some grain bin doors, sustained injury on the highway before arriving at the premises on which the elevator was located, was not entitled to compensation because the injury occurred while he was on his way to assume the duties of his employment. In the Pearson case it was held the claimant was not engaged in her work as secretary and treasurer, or as assistant office manager, at the time of her injury, and further, that she was merely traveling from a point in Illinois to Memphis, Tenn., to assume her duties.
It is always difficult to draw analogies or distinctions between a given set of facts in issue and other facts in hypothetical illustrations suggested by counsel without, perhaps, in some way “attempting to cross a bridge before you get to it.” For instance, counsel for appellants ask what the situation would be if the examination had been held in respondent’s garage, or in a hall in Fort Scott, and one of die mechanics had been injured in a traffic accident on his way to his home after taking the examination. One answer, of course, is that we are not here called upon to decide that question— but, nevertheless, we think there is a considerable distinction to be drawn between that situation and the one before us.
Having concluded that the trip to Pittsburg to take the examination was a part of the employment, it seems entirely logical to conclude that the entire undertaking is to be considered from a unitary standpoint rather than divisible. To take the examination it was necessary for decedents to make the round trip to Pittsburg. That involved travel by private automobile — going and returning — one project, so to speak, and included the normal traffic hazards inherent in such an undertaking. The act does not require that the injury be sustained on or about the employer’s premises. We think appellants’ contention that the “employment” was concluded the moment decedents finished the written examination and laid down their pencils is too narrow, particularly in view of the liberal con struction of the act to which the workman is entitled under our many decisions.
In conclusion, we hold that under all of the facts and circumstances of the case, the lower court was correct in ruling that the trip to Pittsburg to take the examination was an integral part of the employment, and that at the time and place in question decedents had not left the duties of such employment within the meaning of G. S. 1949, 44-508 (k).
The judgment of the lower court is in each case affirmed.
Wedell, J., dissents. | [
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The opinion of the court was delivered by
Wertz, J.:
Appellee, owner of 43/2% of the common capital stock of defendant bank, brought this action in mandamus against the officers and directors thereof to compel them (1) to retire $10,000 of the outstanding preferred stock in said bank; (2) to vote to pay a dividend of not less than 15% on all outstanding common stock; and (3) to compel defendant president and manager of said bank to pay to the bank $1,200 received by him as dividends on preferred stock owned by him, and $4,500 paid him as salary alleged to have been excessive in amount. This appeal is from the order of the court overruling defendant’s demurrers to plaintiff’s amended petition.
The general allegations of plaintiff’s amended petition applicable to his three separate causes of action may be stated thusly: that he is the owner of 43%% of the oustanding capital stock of the Walnut Valley State Bank of El Dorado, Kansas; that defendant J. Earl Tanner is the duly elected president of said bank and defendants C. N. McCarter, C. C. Zimmerman and M. A. Tanner are duly elected directors; that defendant J. Earl Tanner is the owner of and controls more than 51% of the outstanding common stock of said bank and has so controlled the same since April 16,1941; that J. Earl Tanner has been a director of the bank since its organization May 16,1923, and has been president since April 16, 1941; that since the latter date defendant J. Earl Tanner has personally elected or caused to be elected by reason of his ownership and control of more than 51 per cent of the common stock of the bank, all the officers and a majority of each succeeding board of directors of the bank; that defendant J. Earl Tanner is and was at all times pertinent hereto in the sole and exclusive control of the affairs of the said bank, its management, policies and actions, and by reason thereof controls the passage or failure to pass any and all motions, resolutions and actions of the board of directors and stockholders of the bank in all meetings, regular or special, held by the directors or stockholders.
For his first cause of action plaintiff alleges the additional facts that on June 17, 1935, a special meeting of the stockholders of the defendant bank was legally held at the bank; that the subject matter of said stockholders’ meeting related to the issuance by said bank of $25,000 in preferred stock under the provisions of Ch. 30, Laws of Kansas, 1933 Special Session. This law authorized all banking corporations with the approval of the bank commissioner to issue preferred stock and to make such amendments to its articles of incorporation as might be necessary. Acting under the authority of this law, the stockholders of the bank, including plaintiff, voted to change the form of its capital stock by retiring pro rata among its stockholders $25,000 in common stock, which was done by reducing the par value from $100 to $50 per share, and by authorizing in place thereof $25,000 in preferred stock at the par value of $62.50 per share. The preferred stock was preferred to the extent that dividends would be paid on it before any dividends could be paid on the common stock. Pursuant to the action at the stockholders’ meeting, 400 shares of stock were issued and sold to the Reconstruction Finance Corporation; as portions of the preferred stock were retired, new certificates were issued to the holders of the remaining outstanding preferred stock; the preferred stock was retired by defendant bank in accordance with the minutes and resolutions so that on October 7, 1940, 160 shares of the original issue remained unretired; that about October 7, 1940, defendant J. Earl Tanner purchased the unretired balance of preferred stock of 160 shares from the Reconstruction Finance Corporation and defendant J. Earl Tanner is now the owner and holder of the outstanding preferred stock of the par value of $10,000; that the mentioned bank has failed and neglected to retire the 160 shares of preferred stock as required by the minutes and resolutions under which it was originally issued and failure to retire the same is due solely to the fact that defendant J. Earl Tanner and the defendant officers and directors of said bank controlled by him refused to provide for said retirement; that at all times since April 16, 1941, as disclosed by the minutes and proceedings of the meetings of stockholders and directors of the bank, motions of the plaintiff to retire the 160 shares of preferred stock have been defeated and lost, due solely to the fact that defendant J. Earl Tanner refused to vote in favor thereof or refused to cause the directors and stockholders controlled by him to so vote; that by reason thereof defendant J. Earl Tanner draws interest payable by the bank on the aforementioned stock at the rate of four per cent per annum at a cost to the bank of $400 annually; that defendant bank has been in financial condition since April 16, 1941, to retire said preferred stock; the petition further set forth the financial condition of the bank each year from 1941 to 1949 inclusive; that in 1949, the bank had a surplus of $50,000 and an undivided profits account of $75,214.57. Plaintiff further alleges that the failure of defendant J. Earl Tanner individually and as a majority stockholder and director of said bank to provide for the retirement and to retire said preferred stock held by him works to the detriment of the minority stockholders of the bank and this plaintiff, and inured to the personal benefit of defendant J. Earl Tanner, and that said personal benefit and advantage to defendant J. Earl Tanner is deliberate, malicious and unconscionable and caused solely by him. Plaintiff seeks to require the defendants and each of them to take necessary steps to provide for the retirement of the $10,000 in oustanding preferred stock, and for an order enjoining the defendants and each of them from paying to J. Earl Tanner any further dividends or interest on such preferred stock.
Plaintiff for his second cause of action alleged the additional facts that since defendant J. Earl Tanner became the majority common stock holder and president of defendant bank on April 16, 1941, no dividends have been declared on the common stock of the bank; that the financial condition of the bank on December 31, 1941, shows a surplus of $15,000 and undivided profits of $11,861.07; that tírese amounts increased from year to year and on December 31, 1949, the surplus of the bank is shown to be $50,000 and the undivided profits $75,214.57; that many times, as indicated by the records of the bank, at the meetings of the board of directors of the bank, the plaintiff made motions and offered resolutions for declaration of dividends upon the common stock of the bank; that the motions and resolutions so offered were not passed by reason of the fact that defendant J. Earl Tanner and the directors of said bank, defendants herein, voted against said motions and resolutions; that on each occasion when plaintiff made any motion or offered such resolutions, the bank was able, by reason of accumulated earnings and undivided profits, to pay reasonable dividends upon the common stock without impairing the financial condition of the bank, and the net profits and character of the business justified payment of such dividends; that on each occasion plaintiff made such a motion or offered such a resolution, the defendant J. Earl Tanner and other directors of said bank, defendants herein, controlled by said Tanner, did act fraudulently, arbitrarily, oppressively and in disrespect of this plaintiff, a minority stockholder, in refusing to vote for payment of a dividend on the common stock; and that said fraudulent, arbitrary and oppressive acts consisted of (a) payment to J. Earl Tanner of interest on the outstanding $10,000 in preferred stock when it should have been retired; (b) raising the salary of said J. Earl Tanner as president of the bank from $1,920 in 1941 to $6,000 in 1948; (c) expenditure of expense money in making trips and for payment to J. Earl Tanner of other items set forth in the petition; that by reason thereof, J. Earl Tanner is profiting and has profited personally from such actions; that there exists in defendant bank sufficient earnings and undivided profits to pay a 15% dividend on the common stock; that the mentioned acts by the board of directors constitutes a wanton violation of their duty to the minority stockholders and the plaintiff; that plaintiff by way of relief asks for a court order directing defendants to take necessary steps to pay a reasonable dividend on the common stock of the bank from the undivided profits and that said dividend be not less than 15 per cent of the par value of the common stock.
Plaintiff for his third cause of action asks for recovery of $1,200 for the years 1947 to 1949 inclusive paid to defendant J. Earl Tanner as dividends on the mentioned preferred stock; to fix the salary of defendant J. Earl Tanner as president of said bank at $4,000 per annum; and to recover the excess over such amount paid defendant Tanner in years 1947 to 1949 inclusive.
The defendants challenge the sufficiency of plaintiff’s petition as to each separate cause of action. Assuming as we must, upon a demurrer of this character which challenges the sufficiency of the allegations of the petition to state a cause of action for the relief prayed for, the truth of the ultimate allegations of fact pleaded in the petition as well as all inferences which may be reasonably drawn therefrom, the court is of the,opinion that plaintiff’s petition is insufficient as a matter of law to state a cause of action against defendants.
Plaintiff concedes that he has no complaint as to the operation and management of the bank as between the bank and the public, except as to the plaintiff, and commends the bank management on its ability to earn money.
G. S. 1949, 9-1114, provides that the business of any bank shall be managed and controlled by its board of directors and that this shall include the authority to provide for bonus payments in addition to ordinary compensation for its officers and employees.
It is well settled that the directors of a corporation are charged with the duty of managing its affairs and only in cases of the greatest emergency are courts warranted in interfering with the internal operation of its afEairs. It has been said that the fundamental principle of a corporation is that a majority of its stockholders have the right to manage its affairs so long as they keep within their charter and no principle of law is more firmly fixed in our jurisprudence than the one which declares that courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs. (Feess v. Bank, 84 Kan. 828, 115 Pac. 563, LRA 1915A 606; Beard v. Achenbach Memorial Hospital Ass’n, 170 Fed. 2d 859)
We find nothing in the record or the minutes of the stockholders’ meeting amending the charter and providing for the issuance of preferred stock which requires defendant bank to retire the remaining outstanding preferred stock at any particular time. The plaintiff in his first cause of action complains only of the majority of the directors voting against his motion to retire the outstanding preferred stock. The allegations of plaintiff’s petition applicable to each cause of action stating that defendant J. Earl Tanner is the owner of and controls more than 51 per cent of the outstanding common stock and is in sole and exclusive control of the affairs of defendant bank, its management policies and actions, and by such sole and exclusive control exercised by him, J. Earl Tanner has and does now control absolutely the passage of all motions, resolutions and other actions of the board of directors of the bank in all meetings regular and special, is a conclusion which does not in this court’s opinion justify the inference of wrongdoing charged to defendants. While the merits or ultimate success of a claim are not considered in determining the sufficiency of a petition, conclusory statements cannot be utilized to supply material facts by inference. A good petition must contain a plain and concise statement of material facts upon which plaintiff relies. It appears from the pleadings that the majority of the directors in their judgment determined that it was not to the best interests of the bank that any portion of the surplus or undivided profits be used to retire the outstanding preferred stock. The pleadings disclose and plaintiff concedes that the management of the bank has produced a good profit, and no unlawful or ultra vires acts are charged against any of its officers.
In the plaintiff’s second cause of action the only allegation of wrongdoing alleged is that defendant Tanner and the other directors failed to vote in favor of plaintiff’s motions at the directors’ meetings to declare a dividend on the common stock, although sufficient funds were available in the undivided profits account, and passed a resolution increasing the salary of the defendant Tanner as president of the bank.
It is a well established rule of law that while courts have power to order payment of dividends out of undivided profits, they will not infringe upon the. discretion vested in corporate officers, and in any instance are loath to act unless it clearly appears that the discretion is in bad faith abused. (Barrows v. J. N. Fauver Co., 280 Mich. 553, 274 N. W. 325; Reid v. Long Island Bond & Mortgage Guar. Co., 98 N. Y. S. 2d 739)
Declaration of a dividend on the stock of a corporation rests in the sound discretion of its board of directors. (Greene County Nat. Farm Loan Assn v. Federal, etc., 57 Fed. Supp. 783; Richards v. Pacific S. W. Discount Corp., 44 Cal. App. 2d 551, 112 P. 2d 698) The mere fact that a corporation has a large surplus or undivided profits account does not entitle the stockholders to a dividend as a matter of right. To what extent the net earnings should be distributed among the share holders depends largely upon the bank’s need for accumulated reserve to strengthen its credit, increase its working capital, carry out contemplated projects of expansion, and to provide contingencies against future hazards. These questions, in the absence of fraud, are to be determined by the governing board of the bank. (Jones v. Costlow, 349 Pa. 136, 36 Atl. 2d 460; Anderson v. Bean, 272 Mass. 432, 172 N. E. 647, 72 A. L. R. 959)
An examination of the plaintiff’s petition fails to disclose any allegation upon which fraud or bad faith could be predicated and • nothing which would disclose that the actions of the majority of the board of directors were ultra vires.
Plaintiff complains that the board of directors’ action increasing the salary of its president to $6,000 a year was wrongful. It is argued that he is worth no more than $4,000. However, there is no allegation in the petition that ihe salary as fixed was due to any arbitrary action on the part of directors of the bank. G. S. 1949, 9-1114, provides that the board of directors may fix salaries of its officers. The bank’s charter contains a similar provision. Plaintiff concedes that the president had performed his services in an efficient manner and that the operation of the bank was businesslike and profitable. An intolerable position might result if the court should too lightly undertake the fixing of salaries at the suit of a dissatisfied stockholder. If the plaintiff desires to seek relief, he should allege in his petition the wrongdoing or oppression exercised by the board of directors in fixing salaries of its officers. (Schmitt v. Eagle Roller Mill Co., 199 Minn. 382, 272 N. W. 277; Jones v. Costlow, supra.)
Summarizing the allegations of the plaintiff’s petition, plaintiff seeks to have a court of equity substitute its business judgment for that of the directors of the bank. It is not the function of the court to manage a corporation nor substitute its own judgment for that of the officers thereof. It is only when the officers are guilty of willful abuse of their discretionary power or of bad faith, neglect of duty, perversion of the corporate purpose, or when fraud or breach of trust are involved, that the courts will interfere. (Jordan v. Austin Securities Co., 142 Kan. 631, 651, 51 P. 2d 38; Barrows v. J. N. Fauver Co., supra)
In view of what has been said, other grounds of the demurrers need not be discussed. The judgment of the lower court is reversed and remanded with directions to sustain defendants’ demurrers to each count of the plaintiff’s amended petition. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for the alleged breach of an oral contract of employment. The appeal is from an order of the trial court overruling defendants’ demurrer to plaintiff’s amended petition.
The original petition was filed December 29, 1949. To this defendants filed three motions. First, to require plaintiff to separately state and number causes of action; second, a motion to strike various portions of the petition; third, a motion to make definite and certain in many particulars. These motions were heard by the court and ruled upon February 20, 1950, at which time the court denied the motion to separately state and number causes of action and sustained each of the other two motions in part and overruled them in part. Thereafter plaintiff filed his amended petition, which will be summarized or quoted from as follows: This gave plaintiff’s address and alleged that he is a petroleum geologist, in which work he has been engaged in Kansas more than twenty-five years, and that he had engaged to a considerable extent in the operation and production of oil and gas; that from April 11, 1944, to January 1, 1947, plaintiff was retained and employed by Beech Aircraft Corporation as consulting geologist in a program of exploration and development conducted by that company to procure natural gas in the vicinity of its plant near Wichita; that the contract for such employment was evidenced by a letter, a copy of which was attached as an exhibit; that the defendants at all times mentioned have been and are officers of the Beech Aircraft Corporation and thoroughly familiar with his qualifications as petroleum geologist and producer, with his services with the Beech Aircraft Corporation and with the fact that plaintiff had compiled and was maintaining a set of plotted logs of all wells for the production of oil and gas drilled in Kansas between Range 7 East, 6 P. M. and the Colorado line; that in making the oral agreement later mentioned the defendant Gaty was the duly authorized agent of the other defendants and acted for them as well as for himself; that in the month of May, 1945, the defendant Gaty orally stated to plaintiff that he and the other defendants had decided to engage in their individual capacity in a program of exploration and development for the production of oil and that they desired the benefits of plaintiff’s services and would include him as a partner in the venture; or, if plaintiff preferred, they would retain and employ him as consulting geologist on terms similar to those of the plaintiffs contract with the Beech Aircraft Corporation; that plaintiff expressed his preference to associate himself in the venture as a consulting geologist rather than a partner, and it was orally agreed between plaintiff and defendants:
“(a) That the plaintiff, using his knowledge, skill and experience as a petroleum geologist, and his office facilities and employees, would proceed at once and continue, under the general direction of the defendants, to make geological surveys of areas in the state of Kansas, particularly and in the beginning in Sedgwick and Butler counties, to be mutually agreed upon, for the purpose of determining the possibilities of such areas for the production of oil therefrom; would make maps and charts showing the results of such surveys for the use of the defendants, and from time to time revise such maps and charts to reflect the information obtained from drilling operation's in the respective areas; would make recommendations to the defendants as to favorable drilling locations based on geological information acquired by the plaintiff in his sur veys and studies of such areas, including his information previously acquired; and that so long as the defendants should continue their oil exploration and development program the plaintiff would not furnish to others any geological information as to the designated areas.
"(b) That the plaintiff would endeavor to procure leases for the defendants on lands recommended by him as favorable for oil production and approved for leasing by the defendants, and in connection with such leasing activity would investigate the title to such lands and have the titles cleared of encumbrances, former leases, and other involvements which might obstruct oil development of the lands or hinder or delay the marketing of oil and gas production under leases so obtained.
“(c) That the plaintiff would negotiate contracts with reliable and capable contractors for the drilling of wells for the defendants and would supervise the drilling and testing and equipping of their wells, observing formations encountered in drilling and advising the defendants and directing the drilling contractors according to the geological data acquired and from his knowledge and experience as a geologist.
“(d) That the plaintiff would keep the files of the defendants on their leases and oil operations, and until such time as the volume of their oil production should warrant the employment of a full-time production superintendent, would purchase their equipment for them, would negotiate for and acquire necessary rights of way for ingress and egress and for pipe lines, and that he would act as a public relations man and would investigate and settle claims for damages incident to the defendants’ oil operations.
“(e) That the defendants would pay to the plaintiff 50$ an acre for all lands approved by defendants for leasing on plaintiff’s recommendations and on which oil and gas mining leases for the defendants should be obtained.
“(f) That in consideration of the plaintiff’s services as consulting geologist and drilling and production supervisor the defendants would pay to the plaintiff fees equal to 6 per cent of all costs of drilling and testing each well which should be drilled by or for the defendants on acreage leased by the defendants in reliance on the plaintiff’s geological surveys and recommendations.
“(g) That the contractual relations so created should continue until there should be complete development of such leaseholds as might thereafter be acquired by the defendants in reliance on the plaintiff’s geological surveys and recommendations and which should prove productive. The plaintiff is unable to describe any leaseholds which the defendants may then have contemplated acquiring, because no specific leasehold was mentioned.”
That pursuant to the agreement plaintiff promptly proceeded to and did, as expeditiously as possible, make geological surveys of the areas designated by defendants, which finally covered the greater part of sixteen townships in eastern Sedgwick and western Butler counties, and made and furnished defendants numerous maps and charts of the sub-surface geology of those areas; that at the direction of defendants he acquired oil and gas mining leases for them, negotiated building contracts, purchased equipment and materials, acquired rights of way, settled damage claims, supervised drilling operations and performed all other of his duties under the oral agreement until about the 16th day of June, 1949, when defendants attempted to cancel the agreement. The acts by which defendants attempted to cancel the agreement were set out with exhibits. It was alleged that the action of defendants in attempting to cancel the agreement was not induced by any fault on the part of plaintiff and was without cause and wrongful, prevented further performance by plaintiff, and constituted a breach of their agreement. It was further alleged that acting upon plaintiff’s recommendations and the geological information furnished them by plaintiff they had taken leases on approximately 17,000 acres of land in Sedgwick and Butler counties, for 14,000 acres of which he had been paid, but that defendants had refused to pay him the fifty cents per acre agreed upon for the other 3,000 acres, for which they were indebted to him in the sum of $1500. It was further alleged that the geological information furnished by plaintiff to defendants has resulted in the obtaining by defendants of oil production amounting to approximately 750 barrels per day from certain pools, which were named, and has further resulted in establishing the probable oil productivity of extensive acreage held by defendants and not yet developed; that defendants have conducted their oil operations for the most part in a manner calculated to define the limits of the pools in which they operate; that instead of drilling on each location as it has appeared they have proved productive they have moved to more distant locations on or near the edge of favorable geological structures, and by so doing have rapidly exploited the plaintiff’s knowledge and services and geological information furnished them by plaintiff in such manner that defendants have established good productivity of approximately 87 oil wells located on acreage leased by them on information supplied to them by the plaintiff, on which defendants will be required to drill to comply with the covenants for development implied in those leases. It was further alleged that as to all the lands in Sedgwick and Butler counties on which defendants hold oil and gas mining leases the plaintiff has furnished to the defendants exclusively all the geological information which he possessed at the time of the making of the oil agreement and which he has subsequently acquired, and that in their further development of those lands defendants will have the benefit and will necessarily make use of all such information; that by the terms of the oral agreement the plaintiff was to be compensated for such information by the fees he was to receive of six per cent of the drilling costs of the wells; that plaintiff is and has been at all times willing and able to perform his duties under the agreement of supervising, locating, drilling, testing and equipping of defendants’ wells, but that by the action of defendants he had been prevented from doing so, to his damage in a stated amount, for which he asked judgment in addition to the $1500 alleged to be owing him for acquiring leases.
To this amended petition defendants filed a demurrer upon the ground that the amended petition does not state facts sufficient to constitute a cause of action against defendants. This demurrer was considered by the court and overruled on June 27, 1950, and within due time the defendants filed their notice of appeal from the order and judgment of the district court on June 27th overruling the demurrer and from all prior orders, judgments and rulings made adverse to defendants.
In this court counsel for appellants complain of the rulings of the trial court made May 18,1950, with respect to each of their motions. These points are not well taken for the reason that the orders made by the court overruling those motions were not separable appeal-able orders. This case never has been tried, hence no final judgment has ever been rendered against appellants, and our statute (G. S. 1949, 60-3314a) has no application. The result is we can pay no attention to appellants’ arguments respecting those specifications of error.
The only appeal here is from the order of the court on June 27, 1950, overruling the demurrer filed by the defendants to the amended petition of plaintiff. This demurrer was predicated upon the ground that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiff and against defendants. We have examined the petition closely and reach the same conclusion the trial court did. Appellants point out a few phrases which might have been inserted or omitted from the petition, but we think none of them is material and that the petition will apprize defendants of plaintiff’s claim and his reasons therefor.
Counsel for appellants assert that the petition alleges no duty upon defendants to drill any additional wells. We find quite a definite allegation as to defendants’ duty in that regard in paragraph 6 (g), where it was alleged:
“That the contractual relations so created should continue until there should be complete development of such leaseholds as might thereafter be acquired by the defendants in reliance on the plaintiff’s geological surveys and recommendations and which should prove productive. . . .”
Appellants talk about implied covenants in leases and what the lessor must do to enforce them. The cases cited by appellants are beside the point. Plaintiff is not suing on an implied covenant to fully develop the property. He is complaining of the violation by defendants of a specific agreement which they made with him to fully develop the properties on which oil is found and where the leases have been acquired upon the recommendation of plaintiff.
Counsel for appellants contend that the contract as pleaded by plaintiff is unenforceable under our statute of frauds. (G. S. 1949, 33-106, sub-div. 4.) The point is not tenable. It is well settled that a contract of hiring which fixes no definite time for its termination is not within the statute. (See 27 C. J. 187; 49 Am. Jur. 409, § 51; and see our own decisions, Richard v. Kilborn, 150 Kan. 579, 584, 95 P. 2d 545; Kinser v. Bennett, 163 Kan. 725, 729, 186 P. 2d 284, and authorities there cited.)
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was a prosecution for burglary and larceny. The defendant was convicted. On appeal we reversed for lack of evidence and ordered the defendant discharged. (See State v. Rag-land., 170 Kan. 346, 226 P. 2d 251.) During the trial $1,893.40 in currency was introduced as evidence against Ragland. Part of it had been taken by the arresting officers from a car in which he was riding with his wife when arrested and part of it from his wife’s person. No currency was found on his person. There was no search warrant. The officers of the city of Lawrence who arrested Ragland and seized the money turned it over to the state. The county attorney introduced it as evidence at the trial. It at this time is in the hands of the clerk of the district court. This appeal is from an order of the district court ruling on motions by Ragland and by the complaining witness each, to order the money turned over to them, after our decision was filed. The appeal is by Rag-land. We have a brief for him. There is no brief nor was there any appearance in this appeal for the complaining witness nor for the clerk of the court who held the currency nor for the state.
Ragland filed a motion as follows:
“Comes now the Defendant by his attorneys, George K. Melvin and A. B. Mitchell, and respectfully moves that Journal Entry of Judgment be filed in accordance with the Mandate of the Supreme Court of the State of Kansas and for the further order that all moneys now held by any person or persons on behalf of the State of Kansas which were taken from the Defendant Sylvester E. Ragland and his wife, Dolly Ragland, be released and turned over to the attorneys for the Defendant.”
The motion of the complaining witness was as follows:
“You are Hereby Notified, that I, Leta Ingalls, claim as my sole and separate property all the money now in your hands, as Clerk of the District Court of Douglas County, Kansas, said money including one fifty dollar bill, many twenty dollar bills and other monies in the total sum of approximately $1944.47, which was introduced into evidence in the above entitled cause by the Plaintiff and I do hereby request and demand that you turn said money over to me.”
The trial court heard these motions and made the following order:
“Now on this 10th day of March, 1951, the motion of the Defendant, Sylvester E. Ragland, and the motion of Leta Ingalls, the complaining witness, each for an order of the District Court that the exhibit of money in the amount of $1893.40 now held by the Clerk of the District Court be given to the moving party, comes on for hearing and the Defendant Sylvester E. Rag-land, being present by his attorneys, George K. Melvin and A. R. Mitchell, and the complaining witness being present by her attorney John J. Riling, said motions are duly presented and argued to the Court.
“The Court after hearing argument of the parties finds that the motions of the Defendant, Sylvester E. Ragland, and of Leta Ingalls, should be denied and that the exhibit to-wit, the money hereinbefore described should, in the absence of some appropriate action by someone, within twenty (20) days, be turned over by the Clerk of the District Court to the party who introduced it in evidence upon the trial of this cause in this Disrict Court.
“It is Therefore by the Court Ordered that if no appropriate action is filed by someone concerning the exhibit to-wit, the $1893.40 now held by the Clerk of the District Court, within twenty (20) days from this date March 10th, 1951, the Clerk shall give said money to the party who introduced it in evidence in this cause.”
It will be noted, the trial court denied both motions and ordered the currency described, in the absence of some appropriate action by someone, to be turned over to the party who introduced it in evidence. On inquiry during the oral argument we learned that the practical effect of this order would be to turn the money over to the county attorney of Douglas county since that official introduced it in evidence. Ragland has appealed from that order. There appears no basis whatever in law for the order of the trial court that the currency be delivered to the county attorney. The seizure of the currency was made without a search warrant; however, no point was made of that at the trial. Officers when making an arrest of one whom they have reasonable grounds to suspect of larceny may seize and hold for evidence property they find in the possession of the person arrested, which they have reasonable grounds for believing was stolen. (See 6 C. J. S. 620.)
At the submission of this appeal there was some thought that the order of the trial court was not appealable and the appeal should be dismissed. G. S. 1949, 60-3303, provides in part:
“A final order which may be vacated, modified or reversed . . . is an order affecting a substantial right in an action.”
We have concluded that since the defendant and complaining witness are both claiming this currency and since the order of the trial court ordered it paid to a public official, who did not claim it himself and who no one claimed was entitled to it, it was conceivable that it might thereby be lost to whomever was entitled to it and the order was of sufficient finality so that in the interest of substantial justice we should take jurisdiction.
The case against defendant was based on circumstantial evidence. Complaining witness testified that $2,200 in currency was taken from her bedroom while she slept. The fact that defendant and his wife were in possession of such a large amount of currency, $1,-893.40, was urged as a circumstance tending along with other circumstances to establish his guilt. Thus it will be seen it was proper for the arresting officer to hold the currency seized at the time of his arrest and that it was competent evidence against him on his trial for burglary and larceny.
We may state the facts thus — the currency came into the hands of the arresting officers as an incident of a lawful arrest; they delivered it to the sheriff or county attorney as was their duty; the county attorney introduced it in evidence as was his duty; the currency then came into the hands of the clerk of the district court, which officer is holding it awaiting an order as to its final disposition.
Appellant concedes that anyone claiming this currency might file an action in replevin and prove paramount title if it existed in him. This is correct. (See 54 C. J. 435, also Lynch v. St. John, 8 Daly [N. Y.] 142.) He argues, however, that such title could not be proved by the complaining witness here because the question of its ownership is res judicata on account of the final judgment in the criminal prosecution.
The larceny with which defendant was charged was both a civil and a criminal wrong. (See Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; also Lipscomb v. Bank, 66 Kan. 243, 71 Pac. 583.) Merger of causes of action is a phase of res judicata. (See 1 C. J. S. 994, also 50 C. J. S. 20.) At the early common law if an act constituted a felony the private wrong and injury were so merged in the public wrong that there was no private cause of action. (See 1 C. J. S. 994.) This was never the rule in Kansas, however, because in 1859 our legislature enacted Section 9, Chapter 25, of the Laws of 1859. The same section is now G. S. 1949, 60-109, and provides as follows:
“Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.”
A similar statute is in effect in most of the states.
This is the rule now generally even though G. S. 1949, 60-109, had not been enacted. In Stone v. United States, 167 U. S. 178, Stone was sued by the United States to recover the value of timber alleged to have been cut from public lands. He had been tried and acquitted of the same charge and pleaded this acquittal as a bar to civil liability. After an extended discussion of the authorities, the court said:
“It cannot be said that any fact was conclusively established in the criminal case, except that the defendant was not guilty of the public offense with which he was charged. We cannot agree that die failure or inability of the United States to prove in the criminal case that the defendant had been guilty of a crime, either forfeited its right of property in the timber or its right in this civil action, upon a preponderance of proof, to recover the value of such property.”
(See, also, Chantangco v. Abaroa, 218 U. S. 476.) There the court held:
“The general rule of the common law is that a judgment in a criminal proceeding cannot be read in evidence in a civil action to establish any fact there determined. . . .”
We need only apply the rules on res judicata with reference to identity of parties, of causes of action, and of issues to reach a conclusion in this case.
The state had charged the defendant with both burglary and larceny. The parties to the criminal action were the state on. one side and the defendant on the other.. In the civil action there would be the woman who claimed the currency was hers on one side, and the clerk of the district court and defendant on the other. The issue in the criminal case was — Did the defendant break into complaining witness’ house and steal her money? The issue in a civil action would be — Was the currency taken from defendant’s car and from his wife’s person the identical currency that was taken from the complaining witness? The state had in the criminal action the burden of establishing defendant’s guilt beyond a reasonable doubt.
The rules with reference to circumstantial evidence applied.
In a civil action to determine the ownership of this currency the ownership need only be established by a preponderance of the evidence.
G. S. 1949, 60-109, and the rule referred to, are phases of the development of the law to correct the evil following the rule that stolen property belonged to the sovereign. Prior to 1529 the owner of stolen property was compelled to resort to what was called an “Appeal Of Robbery,” if after conviction of the thief he wished to to recover his property.
The statutes of 21 Henry 8, Ch. 11, provided for the issuance by the court in which the thief was convicted of a writ of restitution after the conviction. The right of the owner to recover property stolen from him was made dependent on his prosecuting the thief. Before too long the courts no longer went to the trouble of issuing the writ but the end was attained by the trial court ordering the property delivered to the owner after conviction. Such is the procedure the complaining witness adopted here and if we had affirmed the conviction our statute would have provided for it. (See G. S. 1949, 62-1810.) That section provides as follows:
“If such property shall not have been delivered to the owner, the court, before which a conviction shall be had for the stealing or embezzling thereof may, on proof of the ownership of any person, order the same to be restored to him on payment of the expenses incurred in the preservation thereof.”
The above section was enacted in 1855, about the time G. S. 1949, 60-109, was enacted. (See Terr. Statutes of 1855, Ch. 129, Art. 9, Sec. 9.)
Since in this case the defendant charged with the larceny was-finally acquitted, G. S. 1949, 62-1810, affords us no guide. There is no statute authorizing the court before which the defendant was finally acquitted to restore to him the property alleged to have been stolen. The general rule is that in the absence of a statute permitting the trial court to determine the ownership of stolen property even in the case of an acquittal, the acquittal of the defendant does not of itself establish the ownership of the goods. (See 36 C. J. 951; also Winter v. Bancks and another, 84 L. T. Rep. N. S. 504, Kings Bench.)
In an action such as that described, the complaining witness claiming the currency was stolen from her house by defendant would have the burden of proving by a preponderance of the evidence that this identical currency was stolen, that is, that the currency found on the person of defendant’s wife and in defendant’s car and now in the hands of the clerk of the court was the identical currency that was stolen from her.
The currency was taken by the officers from the possession of defendant. About that there can be no dispute. In case the complaining witness fails to establish that it is the currency that was taken from her, paramount title to it is in defendant. (See 24 C. T. S. 1259.)
It follows the judgment of the trial court must be modified. Unless the complaining witness begins an appropriate action to establish her title to this specific currency within ten days after the mandate in this appeal is spread, then the trial court is directed to deliver it to defendant. In case she brings the action and fails, the trial court is directed to deliver it to defendant when the judgment has become final. The clerk of the district court is directed to retain custody of the currency to abide the result. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of an action to recover for the alleged breach of an oral contract of employment.
The original petition, which named A. M. Brenneman and Kenneth Brenneman as defendants, was framed on the theory the contract of employment was entered into between plaintiff and Kenneth, the latter being engaged in a joint enterprise with the other defendant; that on the date of the contract Kenneth was a minor but was engaged in business as an adult, and that plaintiff had good reason to and did believe him to be capable of contracting so as to bring the contract within the provisions of G. S. 1949, 38-103. The action was later dismissed as to A. M. Brenneman and plaintiff filed an amended petition only as to defendant Kenneth, the allegations of which, for our purposes, can be said to be substantially the same as those of the original petition. Kenneth answered and, among other things, alleged that at the time the contract of employment was entered into he was eighteen years of age, was not doing business as an adult, and denied that plaintiff had any reason to believe him capable of contracting.
The cause proceeded to trial by a jury which returned a verdict for plaintiff in the amount of $590. Defendant’s motion for a new trial was overruled; judgment was entered upon the verdict, and defendant has appealed, specifying as error the action of the lower court in overruling his demurrer to plaintiff’s evidence, his motion for new trial, and in entering judgment upon the verdict.
After the appeal was taken it appears that additional counsel entered the case in behalf of defendant, and in their brief in this court raise, for the first time, the question of the jurisdiction of the lower court to render the judgment on account of noncompliance with statutory requirements relating to service of process on a minor. We are told by both parties that A. M. Brenneman is the father of Kenneth. The record shows that when the action was originally filed counsel for plaintiff filed a praecipe requesting that summons be issued “. . . for the following defendants: A. M. Breneman and Kenneth Breneman in the foregoing entitled cause . . .” The return of the sheriff shows that service was had on the elder Brenneman by delivery to him of a copy of the summons, and that service on Kenneth was had by leaving a copy thereof at his usual place of residence. No question is raised concerning the misspelling of the name Brenneman in either the praecipe or summons.
The amended petition, which, as heretofore stated, named only Kenneth as defendant, alleged:
“That the said Kenneth Breneman is of the age of approximately twenty years.”
In other words, by the very language of his amended petition plaintiff states that defendant was a minor as of the date of filing such pleading. In passing, it should be noted that the evidence disclosed defendant would not be twenty-one years of age until June 7, 1950. Trial was had in January, 1950, and judgment was entered on March 1,1950.
We thus have this situation: Plaintiff filed suit against the two defendants, father and son, in their individual capacities. Each was served with summons. The father was served in his individual capacity as a defendant and not in his capacity as natural guardian of his minor son. The action was later dismissed as to the father. No guardian ad litem was ever appointed for Kenneth, and all proceedings against him, commencing with service of summons and ending with the rendition of judgment, were the same as though he were an adult, notwithstanding the fact that during all stages of the proceedings he was a minor.
Counsel for defendant frankly concede the question was not raised in the lower cotut but contend that it constitutes more than a mere trial error, and that they thus have a right to raise such jurisdictional question on appeal, notwithstanding the fact the trial court was not afforded an opportunity to pass upon the matter. In our opinion the contention is well taken.
It is elementary that in order to render a valid judgment a court must acquire jurisdiction of the parties. As to a minor defendant, jurisdiction is acquired through service of process as provided by the statute (G. S. 1949, 60-408), the applicable portions of which read:
“In any proper case service may be made on minors, ... by a summons personally served or by publication notice as provided in this code, the same as upon other persons defendants in action. If there be a natural or legally appointed guardian for such minor, . . . service shall also be made in the same manner upon such guardian. . .
In the case before us the minor defendant had a natural guardian, his father. Under the statute service of process upon the minor alone was not sufficient, and neither would service upon the natural guardian alone be sufficient. The statute requires that service be had upon both. Neither can it be contended the service of process on the father in his individual capacity as a defendant constitutes service upon him as the natural guardian of his minor son. The legislature has the power to direct the manner in which service of process may be had on infants, and it has exercised that power in plain and unambiguous language. Here there was a clear failure to follow the mandate of the statute and we have no hesitancy in holding that on account of such fact the court did not acquire jurisdiction to render the judgment against the minor defendant. (See Poorman v. Carlton, 122 K. 762, 253 Pac. 424; Mark v. Keightley, 133 Kan. 101, 298 Pac. 783; Hurd v. Baty, 149 Kan. 665, 88 P. 2d 1031; and Godsoe v. Harder, 164 Kan. 86, 187 P. 2d 515.)
And neither can it be contended that the minor, by answering and proceeding to trial, waived the lack of proper service of process. Under the well-established general rule he had no such authority. In 27 Am. Jur., Infants, § 140, p. 859, it is said:
"An infant can neither acknowledge nor waive the regular service of process upon him. Jurisdiction is not conferred by the appearance of the infant or by that of an attorney at law.”
Our disposition of this case renders it unnecessary to take up and discuss the evidence upon which the jury returned its verdict, and neither is it necessary to discuss alleged errors occurring during the trial.
In conclusion, we hold that due to the failure to obtain service of process on the minor defendant in the manner provided by the statute the lower court acquired no jurisdiction over him and the judgment was a nullity. The judgment of the lower court is therefore reversed with directions to vacate and set aside the judgment. | [
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The opinion of the court was delivered by
Thiele, J.:
The questions considered and determined in this opinion arise from two actions originally commenced on the same day in this court, and which, because the same statutes are involved, were consolidated for presentation and argument.
Although more detailed reference to the pleadings will be made hereafter to the extent necessary, it suffices here to say that in No. 38,574, Redevelopment Authority of the City of Kansas City, hereafter referred to as the Authority, seeks a writ of mandamus against the State Corporation Commission, hereafter referred to as the Commission, to compel the Commission to make and promulgate certain rules dealing with the subjects of condemnation of lands and the power of the Authority to issue notes, and arising under the provisions of chapter 118 of the Laws of Kansas of 1943 (now appearing as G. S. 1949, ch. 17, art. 47) as amended by chapter 206 of the Laws of 1951. In No. 38,575 the State on the relation of the attorney general, brings an action in quo warranto against the Commission and the Authority, alleging unconstitutionality of the above act as amended and other infirmities in the two acts, and that because thereof, the Commission is wholly without power or authority to make any rules or regulations and that the Authority is without power to carry out the purposes of the above statutes.
It may be observed that if the State’s contention that the statutes are unconstitutional is upheld the basis for the Authority’s motion for the writ of mandamus disappears.
We shall consider first the contentions as presented by the action in quo warranto. The petition alleges the status of the Commission and of the Authority, and the legislative history of the “Urban Redevelopment Law” first enacted by chapter 118 of the Laws of 1943 which provided for the creation of redevelopment corporations to carry out the general purpose of clearing and rehabilitating substandard, insanitary and blighted areas in cities of the first class of a certain population, and of the amendments to the above act by chapter 206 of the Laws of 1951 which created a redevelopment authority, and conferred power upon it to accomplish the same purposes and objectives as a redevelopment corporation. Making reference to the motion for a writ of mandamus it admits certain allegations therein, the effect of which is that no corporation as contemplated by the original act of 1943 had ever been organized and chartered. The State then alleges that the act of 1943 as amended by the act of 1951 is unconstitutional because it violates article II, section 17, of the state constitution, in that it is a special law where a general law could have been made applicable and that under the act as amended it is applicable only to cities of the first class having a population of more than 125,000 and less than 150,000, and extensive allegations are made as to the population of Kansas City. The State further alleges that the act as amended is repugnant to article XII, section 1, of the state constitution, because it is a special act conferring corporate powers, and that both the original act of 1943 and the amending act of 1951 violate the provisions of article II, section 16, of the state constitution that no bill shall contain more than one subject in that the original act provided for the creation of redevelopment corporations for purposes set forth in that act while the act of 1951 introduced a new subject into the act, namely a new agency, redevelopment authorities. Without going into any detail the State also contends that the act as amended is not a proper exercise of legislative power in that a redevelopment corporation or authority is authorized to condemn and take property for a use not public; that the act as amended authorizes a city to loan, give or contribute moneys raised by taxation to the Authority thus diverting taxes and tax moneys from the purpose for which they were levied and in violation of article XI, section 5, of the state constitution. The State alleges that for the reasons asserted the Commission is wholly without power or authority to make any rules or regulations and the Authority is without power to carry out the purposes either of the act as originally drawn or as amended. Allegations as to the flood of 1951 and its effect in Kansas City and that the acts in question were not intended to apply to an area devastated by flood, and other allegations, need not be set forth here. We note that the State’s prayer for relief is not limited to matters raised by it and the defendant but is that we take jurisdiction and render "a judgment and decree in this action which will settle and forever put at rest each and every question raised by this action” etc.
For present purposes, it is noted that the answer of the Commission in effect admits the allegations as to status of the parties and the legislative history and denies generally. The answer of the Authority makes like admissions, denies generally, alleges certain provisions of the act as amended as to its power to condemn real property and as to its’power to issue notes and bonds, denies that the State’s contentions concerning the 1951 flood should enter into consideration, and its prayer is that while denying unconstitutionality or that the act as amended is arbitrary, unreasonable or capricious and not in the public interest, it does not oppose a searching inquiry and examination and joins with the State in its prayer that we take jurisdiction of the cause and consider not only the issues raised by the pleadings, but all matters apparent upon the face of the pleadings or upon the terms of the act as amended and determine and forever put at rest all questions of constitutionality and validity and render judgment according to the right.
As might be expected, the parties, in their briefs, suggest and discuss many questions concerning not only the constitutionality of the statutes under attack, and of the right of the Authority to have rules made by the Commission consistent with the construction of the statutes as advanced by the Authority and pertaining to the right of the Authority to exercise the right of eminent domain and the right to issue notes or bonds, but many other matters which may or may not be the subject of future difference of opinion, but the factual basis for which is not yet evident. We shall discuss only those matters necessary for a disposition of the State’s contention that the statutes are unconstitutional and that the Commission is without power and authority to make any rules or regulations and that the Authority is without power to perform under the statutes.
It is not necessary that we make a complete and exhaustive review of the statutes in question. Quotations from the statutes will not be of complete paragraphs or sentences, but only sufficient to the discussion hereafter made. An effort will be made, however, to review the statutes sufficiently that the questions presented will appear clearly. As heretofore stated, the original act was chapter 118 of the Laws of 1943, which now appears as G. S. 1949, ch. 17, art. 47. Its title reads in part as follows:
“An Act to ameliorate social and economic conditions and to promote the general welfare, health and morals of the people of the state; to provide for the creation of ‘urban redevelopment corporations’ for the purpose of clearing, re-planning, rehabilitating and reconstructing substandard, insanitary and blighted areas in cities of the first class now or hereafter having a population in excess of 110,000, and determining and declaring the necessity of authorizing urban redevelopment corporations as agencies of the state to undertake the clearance and reconstruction of such substandard, insanitary and blighted areas in said cities;”
the remainder of the title, broadly stated, being a table of contents of the powers granted by the act.
Section 2 of the act (G. S. 1949,17-4702) reads:
“It is hereby declared that in cities' of the state substandard and insanitary areas exist which have resulted from inadequate planning, excessive land coverage, lack of proper light, air and open space, defective design and arrangement of buildings; which, by reason of age, obsolescence, inadequate or outmoded design, or physical deterioration, have become economic or social liabilities, or both;”
and, in general, that such conditions are conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, crime and poverty. Other specifications for need are set forth, and it is declared that the conditions set forth require the creation of the agencies set forth; that the protection and promotion of the health, safety, morals, welfare and reasonable comfort of the citizens of the state are matters of public concern and the necessity in the public interest for the provisions of the act is declared as a matter of legislative determination. Section 3 of the act (G. S. 1949, 17-4703) is made up of many definitions of words used in the act and includes one that the term “city” shall mean any city of the first class now or hereafter having a population of 110,000 or over. Section 4 (G. S. 1949, 17-4704) relating to the development plan needs no present attention. Section 5 (G. S. 1949, 17-4705) provides that within ten years from the date on which the act shall take effect (June 28, 1943) a redevelopment corporation may be organized in manner there provided. Without analysis it may be said that other sections authorize such a corporation to carry out an approved redevelopment plan under the terms, conditions and restrictions set forth. Included in the powers granted are the right to acquire property by condemnation and also the right to issue notes and bonds, both of which are subject to the prior approval of the state corporation commission.
Attention to the above statute will disclose many details which are not mentioned above because not of present interest, but it is observed that the act makes no provision for carrying out its declared purposes except through a redevelopment corporation organized, existing and performing under the terms of the act. The act also included a section dealing with liberal construction to effectuate its purposes, another section as to separability, and another as to when it should take effect. The entire act contained 24 sections.
In 1951 the legislature enacted chapter 206 of the Laws of 1951, which amended 13 sections of the act of 1943 and enacted 4 new sections. The title to chapter 206 reads:
“An Act relating to urban redevelopment corporations or authorities in cities having a population of more than 125,000 and less than 150,000, amending sections 17-4703, 17-4704, 17-4705, 17-4706, 17-4709, 17-4711, 17-4714, 17-4715, 17-4716, 17-4717, 17-4718, 17-4720 and 17-4721 of the General Statutes of 1949, and repealing said original sections.”
The content of the amendments and new legislation need not be fully detailed. For present purposes we note that the definition in G. S. 1949, 17-4703, was amended to read that the term “city” shall mean any city of the first class now or hereafter having a population of not less than 125,000 nor more than 150,000, and that the term “redevelopment authority or authority” shall mean a public body, corporate and politic, created by or pursuant to section 4 of the act. Section 4 is new and provides that there is created in each city a public body corporate and politic known as the “redevelopment authority” of the city, but that it shall not transact any business or exercise any power, unless the city shall approve by an ordinance passed under conditions set forth in that section. Section 5 is new and sets forth in some detail that an authority shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of the act including the following powers “in addition to others herein granted.” Then follow eleven designated powers which we need not detail. Section 6 is new and deals with the power to sell, lease, exchange or otherwise transfer-property to any redeveloper and provides for redevelopment contracts. The other new section is 17 and treats of the power of an authority to issue notes or bonds, and liability thereon. Nothing in its terms has anything to do with constitutionality of the legislation. Although there is controversy between the parties as to changes made in particular instances, the general purpose of the remaining amendments was to confer on an authority the rights and powers conferred .by the original act on redevelopment corpora tions, or, as the case may be, to the same restrictions. Such changes as were made as to the powers of either or both need not be discussed on the question of constitutionality of the act as it has been amended. And lest it be thought to have been overlooked, we note the legislative declaration that the agencies, instrumentalities and corporations created under the statute, are agencies and instrumentalities of the state (G. S. 1949, 17-4702 and G. S. 1949, 17-4720 as amended by Laws 1951, ch. 206, § 15) and to many instances throughout the acts requiring approval or consent of the state corporation commission as a condition precedent to some act to be done or power to be exercised. Without discussion at length, we agree with the contention of the Authority that the legislation was not intended to be any so-called disaster act, although a disaster such as the 1951 flood might produce conditions where the legislation would be effective.
The first question to be determined is whether the act as amended violates article II, section 17, of our constitution, which reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all oases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
Prior to its amendment in 1906 the above section did not contain the last quoted clause and whether a general law could be made applicable was early held to be a question for the legislature to determine. (State of Kansas, ex. rel. Johnson, v. Hitchcock, 1 Kan. 178, and later decisions were in accord. See e. g. The State, ex rel., v. Sanders, 42 Kan. 228, 21 Pac. 1073; Hughes v. Milligan, 42 Kan. 396, 22 Pac. 313; and Comm’rs of Barber Co. v. Smith, 48 Kan. 331, 29 Pac. 565.) In Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583, one of the first cases coming before this court after the amendment of 1906 it was held that the section as amended took from the legislature the right to determine finally when a general law could be made applicable and devolved upon the courts the duty to determine it as a judicial question without regard to any legislative assertion on the subject. Limits of space preclude a full review of the decision treating of general and special laws. It is noted the statute there in question was much more restricted than that now under consideration. Among other things it was said:
“The inherent vice of special laws is that they create preferences and establish irregularities. As an inevitable consequence their enactment leads to im provident and ill-considered legislation. The members whose particular constituents' are not affected by a proposed special law become indifferent to its passage. . . . Meanwhile, in place of a symmetrical body of statutory law on subjects of general and common interest to the whole people, we have a wilderness of special provisions whose operation extends no further than the boundaries of the particular school district or township or county to which they were made to apply.” (1. c. 730,)
and further that
“The first clause of this section of the constitution involves the question of classification, which it is apparent does not enter into the present case. Here there will doubtless remain in the future an ample field upon which lawyers may contend and courts and judges differ. It may be said in passing, however, that it will be the duty of the courts, when that question arises, to apply the established tests to determine whether an attempted classification by the legislature is a proper one, based upon some apparently natural reason suggested by necessity' and occasioned by a real difference in the situation and circumstances of the class to which it applies, or whether it is arbitrary or capricious and excludes from its provisions some persons, localities or things to which it would naturally apply except for its own limitations'. It may be said, however, that it will not become the duty of the courts to invent reasons for upholding a law which is repugnant to either clause of this provision.” (1. c. 734.)
Since the amendment to the constitutional section in 1906 many cases have arisen in which it was contended legislation violated the section, as the long list of annotations to the section as printed in the General Statutes of 1949 will disclose. Speaking generally, it may be said that no one of the many decisions is decisive of the question now before us, as each case was decided upon the wording of the statute involved and the facts appearing in the particular case. It has been held that for an act to have uniform operation throughout the state it need not affect every individual, class or community but that it is competent for the legislature to classify and adopt a law general in its nature to a class, but the classification must be a natural and not a fictitious one (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915); that classification of counties based on population and assessed valuation are ordinarily sufficient to satisfy the constitutional requirement (State, ex rel., v. Wyandotte County Comm'rs, 140 Kan. 744, 39 P. 2d 286) and that while the legislature has power to enact general laws applicable only to a portion of the state, or a community, or a certain class, if they operate uniformly on all members of the class created, the classification must be a natural one resting on a genuine and substantial basis (State, ex rel., v. Allen County Comm'rs, 156 Kan. 248, 133 P. 2d 165).
In the late case of State, ex rel., v. City of Topeka, 168 Kan. 663, 215 P. 2d 644, this court considered a claim of unconstitutionality of a statute pertaining to school election expenses in cities of the first class having a population of more than 70,000 and less than 100,000, the statute being upheld. In that opinion may be found citation of many of our decisions where it has been held that legislation based solely on population does not constitute special legislation nor contravene article II, section 17, of our constitution. That opinion, however, is limited generally to a discussion of population as a proper means of classification and does not otherwise treat whether the classification made was arbitrary or capricious, for the reason it bore no real and substantial relation to the subject matter of the act. In other cases it has been held that while the legislature has power to pass laws which apply to and operate uniformly on members of a class, the classification made must be a natural and germane one, not arbitrary or fictitious, and based upon distinctions which have a reasonable and substantial relation to the subject matter involved. See State, ex rel., v. Allen County Comm'rs, supra; State, ex rel., v. Schoeppel, 160 Kan. 396, 162 P. 2d 80; Johnson County Comm'rs v. Robb, 161 Kan. 683, 171 P. 2d 784; State, ex rel., v. Wyandotte County Comm'rs, 161 Kan. 700, 171 P. 2d 777; Carson v. Kansas City, 162 Kan. 455, 177 P. 2d 212; and Board of County Comm'rs v. Robb, 166 Kan. 122, 199 P. 2d 530.
In considering whether a classification made by the legislature is arbitrary or capricious, the court determines the question not upon proof of facts or conditions, but upon the theory that judicial notice constitutes the proof. (See State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102; Barker v. Kansas City, infra.)
In Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, and decided prior to the constitutional amendment of 1906, the general question was constitutionality of an act where the classification was limited to cities of the first class having a population of over 50,000. In upholding constitutionality of the act the court said:
“Whether the act in question is to be regarded as special and whether its operation is uniform throughout the state depend upon whether population affords a fair basis for the classification of cities with reference to the matters to which it relates, and whether the result it accomplishes is in fact a real classification upon that basis, and not a designation of a single city to which alone it shall apply, under the guise of such classification.
“That for many purposes the classification of cities according to population is a natural and proper one is clear, and we think has never been doubted. . . .
“Granting the reasonableness of the principle of classification, its application rests with the legislature and is not subject to judicial review, although an extreme case could perhaps be imagined in which a court would be justified in holding that an ostensible classification upon the basis of population was only colorable, its real purpose and effect being to limit the application of an act to a single community or group of communities, not distinguishable from others by any differences having relation to the subject-matter involved.” (1. c. 724.)
In Panhandle Eastern Pipe Line Co. v. Miami County Comm’rs, 151 Kan. 533, 99 P. 2d 828, which may be distinguished from the case under consideration in that the classification of the statute there attacked contained not only a population limitation but others, it was said that:
“A law to be regarded as general must embrace all and exclude none whose conditions and wants render such legislation equally necessary or appropriate to them as a class. A law may be special by being so restricted as not to include all the subjects of a class and also where it excludes subjects of a class from its operation (Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885).” (1. c. 537.)
In State, ex rel., v. Allen County Comm'rs, supra, the court considered constitutionality of a statute pertaining to reimbursements of certain benefit district road payments, the title and act being set forth in the opinion. In the course of the opinion it was said:
“It is true the legislature has power to enact laws of a general nature which will be applicable only to a certain portion of the state, to a community or to a certain class of citizens. In other words, the legislature has power to pass laws which apply to and operate uniformly on all members of the class created, but the classification created must be a natural one and must rest upon a genuine and substantial basis. The classification cannot be an arbitrary or fictitious one but must be based upon real and substantial distinctions which have a reasonable and substantial relation to the subject matter involved. These principles frequently have been applied to legislation embracing various and sundry subjects. (Citations omitted.)” (1. c. 252.)
“Wherein does a natural, real and genuine distinction or basis lie for a classification which discriminates between relief afforded landowners in road benefit districts who reside in counties where the county unit system obtains and similar landowners who reside in counties where that system does not obtain? If such a natural and genuine distinction or basis for classification inheres in the county unit system we are not familiar with it and no such basis is disclosed in the briefs presented.” (1. c. 254.)
The conclusion of the court is reflected in the syllabus, the first paragraph of which recites:
“The legislature has power to pass laws which apply to and operate uniformly on' all members of a class, but the classification created must be natural and genuine. The classification cannot be an arbitrary or fictitious one but must be based upon distinctions which have a reasonable and substantial relation to the subject matter involved.”
In Carson v. Kansas City, supra, the court considered constitutionality of a statute pertaining to street improvements. As originally enacted in 1927 the statute applied to any city of the first class then or thereafter having a population of over 110,000, and a contention that statute was unconstitutional was denied in State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032. Thereafter the statute was amended in 1931 to raise the population figure to 120,000 and in 1941 it was further amended so as not to apply to any city in a county having a fixed tax valuation. The question was raised that the amended statute was unconstitutional. This court noted it had been advised the statute was amended to prevent its being applicable to Wichita. Remarking that under the statute if the population increased to more than 120,000 the statute became applicable provided the assessed value was not over the fixed amount, the court said:
“No reasonable basis has been suggested for such a classification and we discern none. The obvious purpose of the amendment was to make the statute apply only to Kansas City, and the result is that if the tangible property valuation of Wyandotte County should increase to more than $150,000,000 the statute would then cease to apply even to that city.” (1. c. 458.)
The court cited and quoted from State, er rel., v. Wyandotte County Comm'rs, 161 Kan. 700, 171 P. 2d 777, and State, ex rel., v. Schoeppel, supra, and followed the reasoning therein, and held the amended statute contravened the constitutional mandate.
Other cases upholding the proposition that while the legislature has power to pass laws which apply to and operate uniformly on all members of the class, the classification must be natural and genuine, not arbitrary or fictitious, and must be based upon distinctions which have a reasonable and substantial relation to the subject matter involved, are Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P. 2d 53; State, ex rel., v. Schoeppel, supra; State, ex rel., v. Wyandotte County Comm'rs, 161 Kan. 700, 171 P. 2d 777; City of Kansas City v. Robb, 164 Kan. 577, 190 P. 2d 398.
Many of the above decisions later handed down refer to Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071. In that case this court considered a statute, the title of which stated it was an act authorizing cities of the first class having a population of over 120,000 to establish benefit districts for parking stations for public use, and later amended to authorize such cities to acquire and improve parking stations for public use. At the time of its enactment, the act affected only the city of Kansas City. This court held that applied only to its title the act was not in contravention of the constitutional provision but by reason of limiting provisions in the body of the act as to time in which to act that there was no probability it would affect any other city. After reviewing some of our decisions, it was said:
“In the briefs and in the arguments the assigned reason for the parking stations is to afford a measure of relief from traffic congestion on the streets. Assuming that to be the purpose of the act, and no other occurs to us or is indicated in the act or its amendment, we discern no difference between the traffic situation as it exists in Kansas City as distinguished from Wichita, or of those two cities as distinguished from many other cities of Kansas. Laying aside, for the moment, the constitutional provision that corporate power may not be conferred by special act, no reason has been made to appear why the evil sought to be remedied or the good sought to be accomplished may not be by an act of general nature.” (1. c. 704.)
The conclusion of the court was that the act and the amendatory act contravened constitutional provisions.
There are many other decisions of this court which might be mentioned, but those set forth are deemed sufficient to show the conclusions reached in all, and adequate for consideration and determination of the questions involved.
In a preliminary way, we note that under those decisions we are to take judicial notice of matters, which include, in the cases before us, the population of “cities of the first class now or hereafter having a population in excess of 110,000,” “any city of the first class now or hereafter having a population of 110,000 or over” as used in the title or body of Laws 1943, ch. 118, and “cities having a population of more than 125,000 and less than 150,000” and “any city of the first class now or hereafter having a population of not less than 125,000 nor more than 150,000” as used in the title or body of Laws 1951, ch. 206. The census taken under the authority of G. S. 1935, ch. 11, and G. S. 1949, ch. 11, shows that the populations in 1942 and 1950, being the figures before the legislature when the respective acts were passed, of the three largest cities in the state, were
City 1942 1950
Wichita 133,144 192,155
Kansas City 124,267 128,821
Topeka 68,938 87,626
and that there was no other city in the state, at either date, having a population in excess of 35,000.
We examine the two statutes involved in the light of the rules of construction heretofore set forth.
Ignoring for the moment the subject matter of the acts and any limitations contained in the body of the acts, and restricting examination solely to the titles of the acts, both of which are sufficiently set out earlier herein, we think that under the decisions it may not be said that the classification made in Laws 1943, ch. 118, was arbitrary or capricious. It is noted however that that act provided only for the creation of redevelopment corporations, made no reference to redevelopment authorities and so limited is of no importance to the defendant Authority. Subject to the premise set out in the beginning of this paragraph, it is noted that the title to Laws 1951, ch. 206, while fixing population limits, can hardly be said to be arbitrary or capricious for that reason alone.
At the time the 1943 act was passed it presently had operation only in Wichita and Kansas City. Before Topeka could come within its terms, that city had to gain over 41,000 in population. In view of the fact the act contained a limitation that a redevelopment corporation had to be organized within ten years from the effective' date of the act (G. S. 1949, 17-4705) there was little probability it would ever affect Topeka. We need not discuss whether the act was bad under the reasoning of Barker v. Kansas City, supra, in view of the amendment of the section in 1951.
We turn to the subject matter of the statutes. The purpose of the legislation is stated in-section 2 of the original act (G. S. 1949, 17-4702) and was not affected by the amendments of 1951. In that section the legislature declared that in cities of the state (not just those having a population in excess of 110,000) substandard and insanitary areas result from inadequate planning, excessive land coverage, lack of proper light, air and open space, and many other reasons set forth in that section, and that it was necessary to create agencies, instrumentalities and corporations for the purpose of attaining the ends recited in the section. Other sections of the.act provide for the organization of redevelopment corporations, which, broadly stated, were authorized to acquire the property in the designated area by gift, purchase or the exercise of the right of eminent domain and to improve the same by possible replanning, relocation of streets, establishment of parks, construction of improvements and lease or sale of that part not dedicated to the public use. Although not fully complete, the above statement sufficiently discloses the subject matter of the legislation and the problem which the legislature sought to solve. Just what relation there may be between the conditions sought to be remedied and the population of the city in which the affected areas might exist does not appear. Although the act states that the prescribed conditions exist in cities of the state, by its population limit, as originally drawn, it affected only Wichita and Kansas City. As has been remarked, the time limitation practically eliminated Topeka. It requires no extended discussion to demonstrate that the evils which the original act sought to eliminate were not existent only in Wichita and Kansas City but were common to many other cities of the state. But we need not stop there. In 1951 the act was amended to provide for redevelopment authorities. It was further-amended so that it was presently effective only in cities of from 125,000 to 150,000 population. Just what did those limitations have to do with the subject matter? The limitation fixed made the act applicable only in Kansas City. It may not be said that Topeka in the course of time will grow in population so as to come under the act of 1943 was amended by the act of 1951 and at the same time that Wichita may decrease in population so that it maybe under it. Any classification based on population must be justified in view of the subject matter of the legislation, and if the classification made is for the purpose of restricting operation of the legislation where the evil sought to be remedied affects many others, it ought not to be held reasonable, but arbitrary and capricious. Stated another way, if the classification on a population basis is only colorable and bears no relation to the subject matter, but is designed to include some and exclude others, all of whom would otherwise be affected by the legislation, the attempted classification ought not to be sustained for the effect is that the act is not uniform in operation but is special legislation. No one at all familiar with legislative processes can read the original act and the amendment without reaching a conclusion that the purpose of population limitations, in the 1951 act, by which redevelopment authorities were created, was to prevent possible opposition from cities which might - otherwise be affected, and to procure legislation which there was little probability would ever effect any city except Kansas City. We can discern no reasonable basis for the classification made.
In our opinion the subject matter of the 1943 statute, as amended by the 1951 statute, discloses a situation where a general law could have been made applicable; that by reason of limitations made as to population the law was special and that the two laws contravene article II, section 17, of our constitution.
The briefs present for our consideration and determination cases from other jurisdictions concerning validity of similar legislation in those jurisdictions, as well as many claims of inconsistency in our statutes as to the extent of power of a redevelopment corporation, one of which is not before us, and of a redeyelopment authority, and as to how far the powers or restrictions contained in the two statutes affect either or both of these statutory creatures. In view of our conclusion we need not discuss these contentions. Nor in view of our conclusions need we discuss matters arising in the action for a writ of mandamus. If perchance the legislature enacts another act of similar purpose, it may be so drawn as to eliminate any inconsistent grants of power or authority, or of restrictions thereon.
The judgment of the court is that the State Corporation Commission is without power or authority to make rules or regulations and that the Redevelopment Authority of Kansas City is without power to perform any acts, all as attempted to be conferred by Laws 1943, ch. 118, as amended by Laws 1951, ch. 206; that judgment for the State should be ordered in Case No. 38,575, and that the writ of mandamus sought in Case No. 38,574, should be denied, and it is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
Appellant filed this proceeding in mandamus in the district court seeking to compel appellees to pay her a ten percent increase in salary which she contends was authorized by the state legislature and for which an appropriation was made. Appellees appeared specially and moved to dismiss the action on the ground it was in substance and effect an action against the state, and the state had not consented to the suit. This appeal is from the court’s order sustaining the motion to dismiss.
Appellant was for a number of years employed as actuary in the department of the state insurance commissioner. During the years from 1945 until she left the department June 30, 1949, she received an annual salary of $4,000, the maximum salary allowable for that position under provisions of G. S. 1945 Supp., 40-110. The 1947 legislature amended said section 40-110 (G. S. 1947 Supp., 40-110) by addition of the following: “That all officers and employees whose salaries are herein specifically fixed shall receive, in addition thereto, during the period commencing July 1, 1947, and ending June 30, 1949, compensation in an amount equal to ten percent (10%) of the annual salaries so fixed, which additional compensation shall be paid in equal monthly installments.” The effective date of this provision was July 1, 1947, and an additional appropriation for the biennium was made for payment thereof.
Appellant demanded of appellee commissioner of insurance that she be paid the ten percent increase in salary allowable under the above statutory provision for the period from July 1, 1947, to June 30, 1949, but he refused to authorize such payment. On July 5, 1950, this action in mandamus was filed, appellant joining as parties defendant the state commissioner of insurance and the state auditor, in which action she sought to force defendant commissioner to authorize payment of the $800 alleged due her, and defendant auditor to draw his warrant on the state treasurer for said amount with interest at six percent from the due date together with costs and attorneys fees. The trial court in sustaining the motion to dismiss held this is an action against the state of Kansas and the court therefore had no jurisdiction over the case.
It was the contention of the appellees below, and the basis for the holding of the trial court, that this proceeding in mandamus is an action against the state of Kansas to recover a money judgment; that the state of Kansas as a sovereign is immune from suit without its consent; and that since the state has not consented to be sued in this case, the action must be dismissed for lack of jurisdiction.
Appellant agrees to the well-settled rule that the state of Kansas in its sovereign capacity is immune from suit and that unless some specific statutory authorization is given to sue, and no such authorization is here alleged, actions against the state are subject to dismissal. Appellant contends, however, that the rule of sovereign immunity is not applicable to the case at bar, that the instant case is a proceeding in mandamus to compel the appellees to carry out their ministerial duties by requiring them to pay to the appellant the ten percent increase in salary which has not only been specifically ordered paid by the legislature, but the money for which was specifically appropriated by the 1947 legislature.
Section 24, article 2, of the constitution of Kansas provides: “No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.” Section 25 of article 2 provides that the regular sessions of the legislature shall be held once in two years commencing on the second Tuesday of January of each alternate year. Section 4 of article 11 provides: “The legislature shall provide, at each regular session, for raising sufficient revenue to defray the current expenses of the state for two years.” Laws of 1879, ch. 166, § 125; R. S. 1923, 75-3002; and G. S. 1949, 75-3002, provide: “The fiscal year in this state shall commence on the first day of July in each year, and close on the thirtieth day of June next succeeding.”
At this point it might be helpful to review briefly the circumstances in this case. The regular session of the 1947 legislature passed the amendatory act (G. S. 1947 Supp., 40-110) and made a biennial appropriation for the two fiscal years beginning July 1, 1947, and ending June 30, 1949, for the purpose of paying increases in salaries in the office of the commissioner of insurance. (L. 1947, ch. 25, §§ 1, 2). The 1949 fiscal year for the state of Kansas ended June 30, 1949, and on that date the authorized appropriations for the biennium lapsed.
Appellant did not file her action until July 5, 1950. Her claim does not rest on a continuing statute, but on the temporary biennial appropriation act itself which by its terms limits the appropriation to a time which expired more than one year before the commencement of her suit on July 5, 1950. At this time there was no money in the treasury, nor in the hands nor under the control of the defendants (appellees), or either of them, out of which the payment of appellant’s salary claim could legally be made. If there is no fund in the control of the officer or body sought to be coerced to pay, out of which the payment can legally be made, the writ of mandamus will be denied for the obvious reason that courts, in administering the law, will not command an act to be done which is contrary to law. Want of funds is a complete answer to a petition to compel a state officer to make or approve a pay voucher or to draw a warrant for such payment. (The People v. Brown, 281 Ill. 390, 118 N. E. 67, 5 A. L. R. 563; Buchanan v. State Treasurer, 68 S. C. 411, 47 S. E. 683; Board of Welfare v. Listman, 175 Md. 473, 2 Atl. 2d 674).
Inasmuch as there was no existing lawful fund at the time of commencement of this action from which plaintiffs claim could have been paid had it been allowed as claimed, the action is tantamount to a proceeding against the state of Kansas for the recovery of a money judgment without the consent of the state, and the court was without jurisdiction to entertain such an action.
The writ of mandamus was properly denied. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to rescind a deed and quiet title to real estate.
For all purposes essential to the issues here involved it will suffice to say that pursuant to an order of the district court the plaintiff, who had commenced this action by the filing of a petition setting forth all grounds on which he relied for recovery in one cause of action, filed an amended petition wherein, in three causes of action, he alleged facts which, if established by evidence, would entitle him to rescission of a certain deed and the quieting of his title to the real estate therein conveyed by him to the defendants on any one of three grounds, namely, legal or equitable fraud or failure of consideration.
With the amended petition in form as heretofore related the defendants, who had initiated the proceeding resulting in the district court’s order requiring plaintiff to separately state and number the causes of action set forth in the petition, filed a motion asking for an order requiring plaintiff to elect upon which of the three causes of action set up in his pleading as amended he would stand when the case came on for trial. After a hearing the district court sustained this motion and by order directed plaintiff to make such an election within fifteen days. Thereupon plaintiff perfected this appeal in which the propriety of that ruling is the only error assigned.
From what has been heretofore related it is obvious the trial court treated the amended petition as a pleading containing three causes of action based upon three separate, distinct, and inconsistent remedies and therefore concluded that under the doctrine of election of remedies appellant could only rely upon one of them for recovery. It follows its action in requiring the appellant to elect, since it had the effect of precluding him from relying thereon, was tantamount to the sustaining of a demurrer to at least two of the causes of action set forth in such pleading. For that reason there can be no question, and we shall proceed on the theory, the order as made comes within the scope of G. S. 1949, 60-3302, and is appealable. By the same token it becomes apparent we are not here concerned with whether the petition as, originally filed stated a single cause of action or the trial court erroneously required appellant to amend that pleading by separately stating and numbering its causes of action. This, of course, means we are not passing upon those matters and that failure to hereinafter mention them is not to be regarded as approval of the trial court’s action with respect thereto.
Assuming, without deciding, the amended petition contains three causes of action we turn directly to the question whether such causes of action were predicated upon theories which warranted the trial court in concluding the appellant could only stand upon one of them as a basis for the relief he seeks to obtain in the action.
In this state, under what is commonly known as the doctrine of election of remedies, we have consistently held that when the law gives several means of redress or relief predicated upon conflicting theories, the election of one of them operates as a bar against the subsequent adoption of the other. On the other hand our decisions are just as consistent to the effect that the doctrine has no application where two or more existing remedies are consistent and that when that situation prevails a party may pursue one or all of them so long as he obtains but one satisfaction. To here enter into a discussion of the principles underlying the rule or to attempt to relate the circumstances and conditions under which it becomes applicable or the many conditions and circumstances under which it has no application at all is wholly unnecessary and would only serve to unduly prolong this opinion. The rule is announced, and the subject of when the doctrine has or does not have application is exhaustively treated, in the opinion of our well considered decision in Taylor v. Robertson Petroleum Co. 156 Kan. 822, 137 P. 2d 150. Numerous cases dealing with all phases of the subject and approving the rule as there announced and herein stated can be found in the opinion of that decision, also in the opinions of our more recent decisions of Davidson v. McKown, 157 Kan. 217, 223, 139 P. 2d 421; Jones v. Rainbolt, 162 Kan. 353, 176 P. 2d 855 and Jerecki Manufacturing Co. v. Shields, 169 Kan. 640, 220 P. 2d 144, and need not be cited.
An examination of the foregoing decisions, as well as those therein cited, reveals the all decisive test to be applied in determining whether the causes of action set forth in a petition are of such character that they can or cannot be united is repugnancy and contradictoriness, as distinguished from the statement in the form of different causes of what is essentially only one cause of action, and that whether there is repugancy or contradictoriness as between the causes of action depends upon whether the proof of one cause disproves the other. To illustrate, in Taylor v. Robertson Petroleum Co., supra, we held:
“To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.” (Syl. f 5.)
While it is true that most of the decisions to which we have heretofore referred deal with the propriety of rulings on demurrers to pleadings on grounds of misjoinder of causes of action the principles therein announced have equal application to, and are decisive of, rulings on motions to require a plaintiff to elect on which one of several causes of action he will rely for relief. The reason for this is so obvious it hardly requires mention. If his causes of action are of such nature he can pursue all of them until he obtains one satisfaction of his claim he cannot be required to comply with an order which for all intents and purposes would deprive him of that right. Ample support, both implied and direct, for the fore going conclusion is to be found in our decisions. See Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 157 P. 2d 805, which holds:
“Under the doctrine of election of remedies a plaintiff who comes into court with a petition containing causes of action predicated upon inconsistent theories may be required to elect upon which one of the several inconsistent positions so asserted by him he relies as a basis for the relief he seeks to obtain in his action.” (Syl. fl.)
See, also, our recent decision in Dalton v. Lawrence National Bank, 169 Kan. 401, 219 P. 2d 719, where, in disposing of a question pertaining to the right of a party to require the plaintiff to make an election, we said:
“It is well settled that an election of remedies may be required only when there is such inconsistency that the allegations in one cause of action must necessarily repudiate or be repugnant to the other. (See Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P. 2d 150.) The test is whether but one satisfaction is asked. . . .” (pp. 409, 410.)
With the rule established nothing remains but to apply it. When it is applied to the present pleading we think it is clear that no allegation in either of the three causes of action tends to disprove or is repugnant to the allegations in the others. Each cause of action sought the same relief and it is certain proof of fraud or undue influence in obtaining the deed would not disprove the fact that instrument was executed by the appellant and that thereafter there was a failure of consideration warranting rescission. Neither can it be said that proof of failure of consideration would necessarily repudiate or be repugnant to proof of the allegations of any one of the three causes of action as to the conditions and circumstances under which appellees obtained the deed. It follows the motion requiring appellant to elect should not have been sustained.
Conceding the rule to be as heretofore stated appellees rely upon Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965; Taylor v. Robertson Petroleum Co., supra; Federal Savings & Loan Ins. Corp. v. Urschel, supra, as supporting their position the allegations of the three causes of action in question are inconsistent. When examined it is to be noted these cases also recognize and adhere to the rule and that they contain nothing to indicate that allegations in causes of action such as are here involved are repugnant, contradictory or inconsistent. The most that can be said for them is that under the factual allegations there under consider ation, which were entirely dissimilar, this court reached conclusions similar to the trial court’s conclusion in the instant case. In Taylor v. Robertson Petroleum Co., supra, we held the plaintiff who had commenced one action on the theory he was the owner of an oil and gas lease could not maintain another action on the theory that title to such lease was in the defendant. Federal Savings & Loan Ins. Corp. v. Urschel, supra, holds that one seeking to establish rights in real estate (a stairway) could not rely on an oral agreement with the owner whereby he was in possession and at the same time claim title by adverse possession. In Sluss v. Brown-Crummer Inv. Co., supra, the plaintiff sought specific performance of a contract in one cause of action and in another rescission of the same contract on grounds of fraud. We held that under the facts as pleaded it was impossible to determine on what definite theory the plaintiff sought recovery or on which of two inconsistent theories he relied and upheld the trial court which had sustained demurrers to his petition. Thus it clearly appeal's the contention such decisions sustain appellees’ position is clearly fallacious.
It is pointed out that two of the three causes of action are based upon alleged tortious conduct on the part of the appellees while the other concedes the execution and breach of a mutual agreement and suggested that causes of action sounding in tort cannot be joined with a cause of action based on contract. The test as we have heretofore indicated does not depend upon the nature of the facts relied on for recovery but whether proof-of the facts set forth in one cause of action would disprove those relied on in another.
The judgment is reversed with directions to set aside the order requiring appellant to elect as to which of the three causes of action set forth in his amended petition he would rely on upon the trial of the cause. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for wages. Judgment was for the plaintiff. The defendant has appealed.
The petition alleged that on July 15, 1945, defendant hired plaintiff to work on his farm for an indefinite period of time and agreed to pay him $150 a month and 160 acres of wheat; that the land to be planted to wheat was a designated quarter section; that plaintiff started to work on July 27,1945, and worked in a workmanlike manner until he was discharged on September 28, 1945; that the oral contract of employment was breached by defendant without justification; that at the time the contract was breached the quarter section had been summer fallowed and was planted in wheat three days thereafter. The petition further alleged that plaintiff boarded the hired hands of defendant for fourteen days and a fair and reasonable charge for that was $35. The petition then alleged that the quarter section of wheat would harvest twenty bushels to the acre and wheat was worth $1.70 a bushel; that at the time of termination of the contract there was owing plaintiff by defendant $150; that during the time plaintiff worked for defendant all defendant’s land was prepared for seeding and drilled except the quarter section which was to be delivered to plaintiff as part of his compensation. The plaintiff asked judgment in the amount of $5,625.
A motion to separately state and number the causes of action stated in this petition was sustained, whereupon plaintiff filed an amended petition. In the first cause of action he pleaded the contract of employment and his discharge and in the second cause of action he pleaded the money due him on account of boarding defendant’s farm hands.
In answer to this petition, defendant alleged admitting the employment but stated that it was only to last until plaintiff and defendant were both satisfied and that if they were satisfied defendant agreed to rent plaintiff 160 acres of land and plaintiff was to pay him one-third of the wheat grown upon the land and plaintiff was to use defendant’s machinery but was to prepare and plant the wheat thereon on his own time and to pay for his own oil and fuel. The answer further pleaded that on the morning of September 28, 1945, plaintiff and defendant orally agreed to terminate the contract and at that time defendant paid plaintiff $233.35 and there was owing plaintiff from the defendant $66.65. As to the second cause of action, wherein the boarding of the farm hands was pleaded, the defendant answered that during that time plaintiff and his family lived in defendant’s house and used defendant’s groceries and plaintiff was not entitled to recover anything on that account. The defendant tendered into court $66.65 for the benefit of the plaintiff. At the conclusion of plaintiff’s evidence, the court overruled defendant’s demurrer to it. Thereafter the court found for the plaintiff in the sum of $100 for labor and $272 for plaintiff’s share of the wheat and found against the plaintiff on all other matters. Judgment was entered for plaintiff accordingly.
The defendant filed a motion for a new trial on some eleven grounds, unnecessary to enumerate here.
The specifications of error are that the court erred in overruling defendant’s demurrer because the action was prematurely brought, the oral contract was not performed to a point entitling plaintiff to recover, plaintiff offered no evidence in mitigation of damages, the employment was terminated by agreement and the judgment for $272 as plaintiff’s share of the wheat was not within either the pleadings or the evidence.
Defendant’s first argument is that the action was prematurely brought. In this the defendant points out that the action was brought on June 12, 1946, for two-thirds interest in the wheat crop. Defendant points out that at the time the action was brought the wheat had not been harvested and argues it was premature to bring the action for the wheat until it had been harvested. This argument is not good for the reason that the plaintiff pleaded the de fendant had on September 27, 1945, discharged him and made it impossible for him to either plant the wheat or harvest it. The cause of action accrued on that date. It was not necessary for plaintiff to wait to bring his action until the wheat was harvested. That could only have any importance on the question of the amount of damages and the wheat had been harvested long ere the case was finally heard.
Defendant next argues that the claimed oral contract was not performed by plaintiff. That is purely a question of interpretation of the evidence. The plaintiff testified that he did work for the defendant until the defendant discharged him and terminated the contract. The defendant testified that they mutually agreed to terminate the contract. The trial court believed the plaintiff, which it had a right to do. Such is sufficient evidence upon which to base a finding that the contract had been performed and that the defendant had made it impossible for the plaintiff to further perform.
Defendant next argues that the contract in question was conditional and the conditions were met. The same conclusion applies to that argument as to the preceding one.
The same may be said of the next argument the defendant makes that the agreement in question was terminated by mutual agreement. That question was settled by the trier of the facts.
Defendant next argues there is no evidence at all upon which to base a finding of $272 for wheat. ' The defendant at no time asked the court to make this finding any more specific. That is a less sum than plaintiff asked and defendant cannot be heard to complain because the amount was not as great as the plaintiff claimed it should be.
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The opinion of the court was delivered by
Wertz, J.:
This was a divorce action wherein both appellant father and appellee mother prayed for divorce and custody of their four minor children, whose ages are now approximately two, four, five and six years. The trial court after hearing the testimony offered at the trial made findings of fact and conclusions of law granting appellant father a divorce by reason of the fault of his wife, and finding that neither appellant nor appellee was a fit and proper person to have the custody of the minor children and granting the custody to the adoptive maternal grandparents.
No post-trial motions were filed by appellee. Appellant filed a motion to vacate and set aside certain findings of fact and con elusions of law made by the trial court and to adopt appellant’s suggested findings and conclusions of law, and a motion for a new trial, which were overruled. Appellant in this appeal charges error in the court’s action in overruling his motions above referred to.
The principal question involved in this appeal is whether the court abused its discretion in finding from the evidence adduced that appellant was unfit to have the custody of his children and in granting that custody to the adoptive maternal grandparents.
At the outset, it may be stated that under our recent and often repeated decisions to which we have strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children, who desires to do so, and who has not been found to be an unfit person to have the custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent asks the custody, such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them. (Stout v. Stout, 166 Kan. 459, 201 P. 2d 637, and cases therein cited and reviewed.)
That brings us to the single question in this case. Was there any substantial evidence to justify the trial court’s finding that the father was an unfit person to have the custody of his children and to support the award of their custody to the grandparents? The finding of the lower court that the mother (appellee) was unfit to have custody is not before us, as appellee neither appeared in the court below, nor makes any appeal from rulings there made.
Appellant argues that there was no substantial evidence in the record to indicate that he was an unfit person to have the custody of his children. We have carefully reviewed the evidence, and while some of the members of this court might have reached a contrary conclusion to that of the lower court, we are unable to say there was no evidence to sustain the trial court’s judgment.
It has been the rule of this court that the findings and judgment of a trial court on an issue of fact supported by substantial though controversial evidence will not be disturbed on appeal. (Crews v. Sheldon, 106 Kan. 438, 186 Pac. 498.) In the absence of abuse of sound judicial discretion in awarding the custody and control of children, the judgment of the trial court will not be disturbed on appeal. (Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127.)
In divorce actions of this kind the right of either parent to the custody and control of the minor children must be given secondary consideration to that of promoting the general welfare of such children. For good cause shown, the trial court may deprive both parents of the custody and control of their minor children and award the custody and control to another in conformity with the best interest of the children. (Collins v. Collins, 76 Kan. 93, 90 Pac. 809; Hayn v. Hayn, supra; Hatcher’s Kansas Digest, Parent and Child, § 12; West’s Kansas Digest, Divorce, §298 [1].)
The trial court had before it the father, the children, and the grandparents, both maternal and paternal; and we must assume that in determining what was for the present best interests of the children, the court considered the father’s present facilities and ability to care for the four children of such tender years; considered which of the grandparents were presently better able to care and provide for the children, financially and otherwise; and considered the ready accessibility of both church and school, and other matters, in arriving at its conclusion that the interests of the children would be best served by awarding their custody to the maternal grandparents instead of to their father who also asked custody, no evidence appearing in the record of his moral unfitness to have that custody and control. Under such circumstances the correct determination of the controversy rested in the discretion of the trial court.
In view of the evidence and what has been said above, we cannot say that the trial court abused its sound judicial discretion in awarding the present custody and control of the children to the maternal grandparents so long as such grandparents are willing to and do keep the children in their own home and personal custody, with parents’ rights of visitation as decreed by the trial court.
Appellant’s future right to the custody of his children has not been foreclosed. Jurisdiction of the district court over the minor children in a divorce action is a continuing jurisdiction (G. S. 1949, 60-1510; Janney v. Janney, 159 Kan. 230, 232, 154 P. 2d 131; Maston v. Maston, 171 Kan. 112, 229 P. 2d 756). As these children grow out of babyhood, and their father’s facilities for caring for them or other conditions change so that the welfare of the children warrants the court’s granting the custody to the father, he may in a proper prc ceeding ask the court to modify and change the order made in this case and regain the custody which is rightfully his as the natural father.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff commenced an action to recover $5,000 as the principal sum due on the bond hereafter mentioned. As the result of a trial she recovered a judgment for the sum of $1,250. Her motion for a new trial having been denied, she has appealed to this court contending that the trial court erred in not rendering judgment in her favor for the full sum of $5,000.
The action on the bond arose out of facts which were stipulated.
On May 4, 1948, Julia P. Bartley, hereafter referred to as Mrs. Bartley or as the appellant, commenced an action in the district court of Shawnee County against Ralph E. Bartley, hereafter referred to as Bartley, for a divorce and obtained personal service of summons on him. On July 31, 1948, Bartley filed his special appearance and motion to quash service of process on him and on April 30, 1949, that motion was denied. On May 3, 1949, Bartley filed a plea in abatement and on May 31, 1949, that plea was denied. On May 31, 1949, Mrs. Bartley’s motion for support money and attorney fees was allowed and Bartley was ordered to pay $250 per month for the support and maintenance of Mrs. Bartley and the minor children of the parties and $500 to apply on her attorney fees. On June 2, 1949, Bartley filed his motion for a new trial on the two motions and the plea to which Mrs. Bartley responded with a motion to strike the motion for a new trial and on June 29, 1949, Mrs. Bartley’s motion to strike was sustained. Following that ruling and on June 29, 1949, Bartley filed his notice of appeal to the supreme court from the four rulings above mentioned and on the same day filed in the office of the clerk of the district court a bond, which with its title, reads as follows:
“APPEAL BOND
“Know All Men by These Presents: That we, Ralph E. Bartley, as Principal and Anchor Casualty Company, duly authorized to do business in the state of Kansas, are jointly and severally held and firmly bound unto the said Julia P. Bartley in the amount of Five Thousand Dollars ($5,000.00) lawful money of the United States, to the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, firmly by these presents.
“The condition of this obligation is that if the above bounden principal shall without unnecessary delay, prosecute his appeal from the District Court of Shawnee County, Kansas in tire matter of Julia P. Bartley vs. Ralph E. Bartley, and pay all sums, damages and costs that may be adjudged against him, then this obligation shall be void; otherwise it shall be and remain in full force and effect.
“In witness whereof, we have hereunto subscribed our names this 28th day of June, 1949.
■ “/s/ Ralph E. Bartley Principal
Anchor Casualty Company
By /s/ L. A. Bitters
L. A. Bitters, Attorney-in-fact.”
On the same day the trial court made an order which read:
“Now on this 29th day of June, 1949, the appellant, Ralph E. Bartley, duly files his appeal bond herein in the sum of $5,000.00 with sufficient sureties and asks the court that same be approved.
“It Is Therefore, By the Court, Ordered that the above and foregoing appeal bond in the sum of $5,000.00 be, and the same is hereby approved.
“/s/ Beryl R. Johnson ' District Judge
Shawnee County, Kansas”
We here note that although not specifically agreed upon, there is no dispute but that on August 13, 1949, Mrs. Bartley filed her motion in the supreme court for court money, suit money and a restraining order, and upon consideration of that motion, on August 17, 1949, the notice of appeal and the journal entry of judgment were examined and the court found that none of the orders from which the appeal was taken was an appealable order. It was stipulated the appeal was dismissed for the reasons found. It was further stipulated that as of August 17, 1949, date of the above dismissal of the appeal that there had accrued under the order of the trial court for temporary alimony, child support and attorney fees the total of $1,250; that on September 1, 1949, the trial court, made an order for additional suit money of $500 and on that date, the total sum payable amounted to $1,750. A trial of the divorce action was had on September 12, 1949, and resulted in a judgment for Mrs. Bartley for a divorce and for the custody of the minor children and Bartley was ordered to pay her $200 per month for their support and maintenance commencing forthwith; and she was also awarded certain real estate, alimony in the sum of $2,000 pay able at the rate of $50 per month commencing October 1, 1949, the sum of $750 due and unpaid under previous orders for temporary support, the sum of $1,000 for attorney fees previously ordered, and the further sum of $750 for attorney fees. It was further stipulated that after the bond was executed, Mrs. Bartley did not cite Bartley for contempt, nor proceed against him in the divorce action and forebore her right to proceed against him in reliance on the bond and that as of August 12, 1950, there was due and owing, under the order of the court, the total sum of $5,477.40.
The instant action was commenced August 25, 1950, by Mrs. Bartley against Bartley and the bondsman Anchor Casualty Company. A recital of all allegations of her petition is unnecessary but she alleged the filing of the divorce action, the order of May 31, 1949, for temporary support and attorney fees; Bartley’s motion for a new trial thereon, his appeal to the supreme court and the filing of the bond, a copy of which was attached to the petition, and that in reliance on the bond she did not cite Bartley into court for contempt nor levy execution to collect unpaid child support or attorney fees, but she forbore and continued to forbear any proceedings to compel Bartley’s performance; that Bartley’s appeal to the supreme court was dismissed and on September 12, 1949, the divorce action was tried on its merits, the terms of the judgment being set forth. Mrs. Bartley further alleged that Bartley had never made any payments on the judgment and decree of September 12, 1949, and refused demands therefor and that there was due and owing as of August 12, 1950, temporary alimony of $750, attorney fees of $1,750, permanent alimony of $550, permanent child support of $2,400 and court costs of $27.40, or a total of $5,477.40, as of August 12, 1950, and she prayed judgment against both defendants on the bond in the amount of $5,000 and for costs. No service of summons was had upon Bartley. Anchor Casualty Company filed its answer in which it denied generally but admitted the making of the order of the district court of May 31, 1949, and that Bartley had appealed to the supreme court and had filed the bond signed by him and the answering defendant, and alleged that at the time Bartley’s appeal to the supreme court was dismissed there was due to Mrs. Bartley the sum of $750 support money and $500 attorney fees, and that it had and did offer the sum of $1,250 to plaintiff as the extent of its liability on the bond.
The action was tried on the facts stipulated as above mentioned. On December 28, 1950, the trial court found that the Anchor Casualty Company was only indebted to Mrs. Bartley for the amount accrued on August 17, 1950, when Bartley’s appeal in the divorce action was dismissed by the supreme court; that the sum then accrued was $1,250 and she should have judgment against the company for that amount and judgment was rendered accordingly. In due time Mrs. Bartley filed a motion for a new trial, which was denied. Within two months from the date of the judgment, Mrs. Bartley perfected her appeal to this court from the judgment of December 28, 1950, and from the denial of her motion for a new trial.
Before discussing contentions made in the briefs, we note that under G. S. 1949, 60-3322, provision is made for the staying of judgments and for the giving of supersedeas bonds. That statute provides, in substance, that no appeal from any judgment or final order shall operate to stay execution unless the clerk of the court, in which the record of such judgment or final order shall be, shall take a written undertaking to be executed on the part of the appellant to the adverse party, with one or more sufficient sureties. As applied to the case before us that statute further provides that:
“When the judgment or final order sought to be reversed directs the payment of money, the written undertaking shall be in double the amount of the judgment or order, to the effect that if the judgment or order appealed from . . . be affirmed or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order . . . and all damages and costs which may be awarded against the appellant upon the appeal. . .
The above statute contains no required form of the bond. Appellant directs attention to the language of the appeal bond and to the trial court’s order approving it, as well as the above statute, and to the fact that the language of the bond contains provision that appellant “shall without unnecessary delay, prosecute his appeal,” and does not contain a provision that Bartley shall pay all damages and costs which may be awarded against the appellant “upon the appeal,” and assumes for that reason the bond is not a statutory bond, and she makes an extended argument that the bond was voluntary, not prohibited by statute or contrary to public policy and valid and enforceable as a common-law bond. Upon that premise and in support of her argument she relies on Gille v. Emmons, infra, and authorities from the courts of states other than Kansas. Appellee contends the bond given was a statutory bond and its liability is to be measured on that basis.
In a preliminary way it is noted that the general distinction between a statutory bond and a common-law bond is that the former is required by and conforms to a statute, while the latter is one not required by statute, or if required is insufficient to fulfill the statutory requirement (11 C. J. S. 424 and 8 Am. Jur. 708). Where the statute contains a form, slight changes in the form and the use of synonymous phrases, or containing slightly excessive language, do not render the bond void as a statutory bond (11 C. J. S. 429 and 8 Am. Jur. 709). And where the statute does prescribe the conditions of the bond, but the bond does not include all of them, they will be read into the bond to determine liability thereunder (Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474). The fact that a bond required by statute did not literally comply with statutory requirements received attention in Ellsworth v. Hurt, 158 Kan. 232, 146 P. 2d 365, where it was said:
“This court has held that when a statute requires a bond to be given and a bondsman undertakes to furnish it, the obligation of the bond which is imposed by the statute is read into the terms of the bond, and any of its text at variance with the statutory requisites is ignored. Such is the doctrine of the notable case of Barber County Comm’rs v. Lake State Bank, 122 Kan. 222, 226-227, 252 Pac. 475. Likewise, in Duke v. National Surety Co., 130 Wash. 276, 227 Pac. 2, it was held that conditions in a statutory bond which are repugnant to the statute are to be treated as surplusage.” (1. c. 233)
Other authorities are also cited. It was held:
“Where the statute requires the registration of brokers in speculative securities and the giving of a faithful performance bond as a prerequisite to the issuance of a broker’s license, the bond which is given in conformity with the statute must be interpreted in the light of the statute, and any provision of the bond repugnant thereto is to be disregarded.” (Syl.)
See also Kaill v. Bell, 79 Kan. 358, 99 Pac. 593, where it was held that a bond to discharge an attachment was not void because it contained conditions in excess of those required under the statute.
The omission of the phrase “upon the appeal” after the clause “pay all sums, damages and costs that may be adjudged against him,” is not entitled' to the weight put upon it by the appellant. Bartley stated as a condition of the bond that he would prosecute his appeal, and the omission of the phrase “upon the appeal” later did not alter his statutory obligation.
In our opinion, the fact that the bond contained the provision that the appeal shall be prosecuted without unnecessary delay and omitted the phrase “upon the appeal” did not render the bond void as a statutory bond, nor did the inclusion and omission mentioned, result in the bond not being a statutory bond. Nor was the character of the bond changed by reason of the fact this court dismissed the appeal in connection with which the bond was given. The language of the statute contemplates dismissal which ordinarily would result only because of appellant’s failure to prosecute, of lack of merit, or because the matter sought to be appealed was not appealable.
We think that Gille v. Emmons, 61 Kan. 217, 59 Pac. 338, relied on by appellant, does not support her contention that the bond in question was only a common-law bond and that liability under it extended to undetermined liabilities. Very briefly stated, that action was to recover on a bond to stay execution on a judgment rendered in a foreclosure proceedings. On March 25, 1889, Gille recovered a judgment against Carrie Emmons and her husband. Emmons appealed to this court and gave a bond which is fully set out in the opinion and in general to the effect that if Emmons and others would pay the judgment if it should be affirmed the bond should be null and void, otherwise of full force and effect. The judgment was affirmed. Later in the district court Carrie Emmons had the judgment vacated for the reason she was not a signer of the note secured and that the foreclosure petition had not alleged her liability. Gille appealed to this court, which affirmed the trial court. No execution was issued until after the first affirmance, but one was then issued and the mortgaged property sold, a deficiency of payment of the judgment remaining and an action on the bond was brought to recover that deficiency. Other contentions of error need not be noticed. The court did consider a contention the bond did not conform to the statute and stated it was not in strict conformity to the statute; that the judgment was for sale of the mortgaged premises and for the payment of any deficiency after the sale and that the bond did not provide for the payment of the deficiency; and that the bond was not conditioned against commission of waste, nor for the value of the use and occupation of the property from the date of the undertaking. It did not determine whether the last two conditions were requirements of a supersedeas bond (for statutory requirements then existing see G. S. 1889, § 4652, Third). The court further said that the nonconformity of the bond to statutory requirements did not invalidate it; that it was good as a common-law bond; that the parties giving the bond got all they desired under it and could not be heard to urge its lack of conformity to law.
In the case cited the bond was given to protect as against an existing judgment, not to insure payment of one to be rendered in the future. Further, the parties executing the bond were urging that the bond did not conform to the statute, while here, it is the obligee in the bond who attempts to avoid it as a statutory bond.
In our opinion the slight variances complained of did not convert the bond in question from a statutory bond conditioned to meet statutory requirements into a mere common-law bond.
While perhaps the above disposes of the appeal, we note further that even if the bond be said to be a common-law bond and not a statutory bond, the limit of liability under it was on the order and judgment from which the appeal was taken, and was not any undertaking to pay a judgment which had not been rendered at the date the bond was executed and filed.
We note also that appellant makes some contention that in reliance on the bond she took no steps to have execution levied on any property of Bartley (although there is no showing he had any) nor to enforce the judgment otherwise. Be that as it may, her forbearance did not have any effect in determining the character of the bond given nor to change in any manner the extent of liability thereunder.
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The opinion of the court was delivered by
Wedell, J.:
The plaintiff appeals from an order sustaining a general demurrer to his amended petition in which he sought to recover damages for personal injuries.
The part of the petition necessary for a review of the ruling reads:
“The plaintiff, Victor Steinmeyer, is a resident of Topeka, Shawnee County, Kansas.
“The defendants, C. M. McPherson and W. B. Nolan, are residents of Topeka, Shawnee County, Kansas, and are, and have been for many years, partners doing business as Kansas Auto Wrecking Company. . . .
“The defendants use and occupy a tract of land at 634 West First Street in carrying on their business as Kansas Auto Wrecking Company in which business they buy and wreck old and used motor vehicles, dismantle them, store various auto parts on the premises and offer them for resale as used auto parts. In connection with said business the defendants keep watch dogs on tire said premises to protect their property against thieves and pilferers.
“The plaintiff has been acquainted with the defendants for a number of years and has been a business customer of the Kansas Auto Wrecking Company. During the month of December, 1949, the plaintiff and defendants orally agreed and arranged that plaintiff would permit defendants to keep plaintiff’s dog on tire premises at 634 West First Street as a watch dog for the protection of defendant’s property.
“On the 28th day of December, 1949, the plaintiff entered tire premises of the defendants at 634 West First Street, at a time when said premises were open for business. He proceeded along a narrow pathway, lined on either side with various and sundry used auto parts stored on the premises, back to the place where plaintiff’s dog was being kept by defendants. Plaintiff picked up a carton or box used as a food box for said' dog and started carrying it back along said narrow pathway toward the defendants’ business office for the purpose of getting more food for said dog. While walking back along said pathway, plaintiff stepped into a small depression in which there was some ice accumulated, and slipped and fell. In said fall plaintiff’s left foot and leg struck some metallic auto parts which were stored along said pathway, and plaintiff’s left foot was severely injured including a fracture of the interior malleous and a fracture of the fibula at and just above the ankle joint level; and also a fracture through the posterior-inferior aspect of the tibia.
“After said fall and as a result thereof plaintiff was taken in an ambulance to Vail Stormont Hospital where his left foot and ankle were x-rayed and placed in a cast. He remained at the hospital 5 days and was then removed to his residence where he was confined until the cast was removed about March 24, 1950.
“The injuries suffered by plaintiff were proximately caused by the negligence of the defendants in
“(1) Failing and neglecting to keep the pathway on their property, where plaintiff fell, in reasonably safe condition for the use of their business invitees and others rightfully traveling on said pathway.
“(2) In permitting a depression in said pathway to exist and become coated with ice, without filling up said depression and removing said ice.
“(3) In failing and neglecting to place a warning sign to warn persons using said narrow pathway of the depression covered with ice in said pathway.
“(4) In maintaining a narrow pathway lined with heavy metal used auto parts, so narrow that anyone slipping or losing his balance and falling was in danger of severe personal injuries as a result of striking his body against said used parts.”
Appellant complains of the trial court’s ruling contending (1) the petition discloses he was a business invitee, or, in other words a business visitor; that business visitors are of two classes, one class being, for example, where a person enters upon the premises of another to look at goods on display or to make a purchase, and the other class being one where a person enters the premises for a purpose connected with his own business which is directly or indirectly connected with the purpose or business of the possessor of the premises, as, for example, where the former delivers some article of merchandise onto the premises of the latter (Restatement, 2 Torts, § 332); and (2) that the petition did not on its face disclose appellant’s contributory negligence.
Appellees assert this petition did not allege facts disclosing appellant was a business invitee but, at most, showed he was a licensee; and (2) the petition discloses contributory negligence on the part of appellant. With these contentions before us we shall examine the petition.
We observe it alleges appellant had been a business customer of appellees. It does not state, however, that he was a customer on this occasion. A person, of course, may well have been a customer of a trade or business on past occasions and not be such at a later date. There is no allegation that upon his arrival on the premises, or at any time thereafter, appellant went to the office or spoke to any of the appellees or their employees elsewhere, indicating he was there for some business purpose. It is not stated he entered upon the premises with a view of purchasing any automobile part, or parts, or even that he was there to ascertain what parts they might have available on the premises should he be interested in making a purchase at some later date.
On the contrary the petition rather clearly indicates he went there on a purely personal mission to see his dog and that he thereafter undertook to feed him. There is no averment the dog was not being properly fed by appellees or that it was appellant’s duty or responsibility under their arrangement to feed the dog. Although an interest in one’s dog is a quite understandable and commendable trait the petition in nowise tends to indicate the feeding of the dog was any part of appellant’s own business while it remained in the possession and under the control of appellees.
It is not alleged appellant was invited onto the premises or that appellees permitted him to enter or remain thereon. In fact it is not alleged they knew of his presence on the premises. In view of the pleaded and omitted facts we think the petition fails to disclose appellant was more than a licensee.
It is generally held a licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission. (Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438.) Ordinarily the only duty an owner or occupant of premises owes to a licensee is the duty to refrain from willfully, intentionally or recklessly injuring him. (Toomey v. Wichison Industrial Gas Co., 144 Kan. 534, 61 P. 2d 891; Bessette v. Ernsting, supra; 38 Am. Jur., Negligence, § 104.) The petition does not reflect a violation of that duty.
Furthermore we think the meager allegations of this petition cannot be held to state a cause of action even if appellant could be regarded as a business visitor or business invitee. The proprietor of a trade or business is not an absolute insurer of the safety of customers. He is, however, liable for failure to maintain his premises in a reasonably safe condition for the protection of customers unless they know, or from facts they should know, of the possessor’s activities and of the risk involved therein. (Restatement, 2 Torts, § 341.) Latent defects must be known to the proprietor or Have existed for such time as to make it his duty to know thereof. (Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571.)
Here the alleged defect existed in a passageway which the petition does not describe as a regular and customary path for the use-of business visitors or invitees. Assuming, however, it was such a passageway it would not be expected to be entirely level on a lot used for the storage of old automobile parts. Moreover, the alleged defect is described as a “small depression” in which some ice had accumulated. Such depressions are frequently caused by the handling of heavy machinery. Insofar as the petition is concerned this “small depression” might have been caused by the handling of heavy machinery on the very day appellant was injured and wholly without appellees’ knowledge. The petition does not tend to indicate appellees knew of its existence. It does not allege facts from which it reasonably could be inferred they should have been aware of its presence. Nor does it allege there had been ice on that particular spot for any length of time. This was in December, a cold winter month. The ice, too, might have formed there the day before or on the very day in question. Under this combination of circumstances it appears to us the petition fails to charge appellees with want of reasonable care.
Appellant argues the amended petition was not motioned and hence was entitled to a liberal interpretation on attack by demurrer. That is true insofar as the pleaded facts are concerned. Failure, however, of a defendant to attack a petition by a motion to make the pleaded facts more definite and certain does not perform the function of supplying the petition with omitted facts constituting essential elements of a cause of action.
Appellees argue the petition really discloses appellant knew or should have known more about the alleged defect than it alleges appellees knew or should have known. They stress the fact appellant passed over this exact place in previously going to the back part of the lot and if the depression constituted anything out of the ordinary he should have observed it; that he stepped onto the ice on his return and was, therefore, guilty of contributory negligence in failing to avoid stepping onto it. In view of what has been said previously herein we need not pursue the question of appellant’s contributory negligence.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiffs designate this action as one to enjoin the illegal expenditure of funds voted for one purpose and being used for another, while defendants designate it as one to question their authority to expend funds lawfully levied and collected for purposes authorized by a majority of the electors of each district. The action represents the second chapter of litigation commenced and disposed of in State, ex rel., v. Rural High School Dist. No. 3, 169 Kan. 671, 220 P. 2d 164. We note that the third chapter is disposed of in Kroeger v. Rural High School Dist. No. 3, 171 Kan. 347, 232 P. 2d 430.
Plaintiffs’ amended petition first charged that the defendants were threatening to enter into contracts and do the things complained of without authority of law which would cause the creation of public burdens upon the property of plaintiffs and cause the levy of illegal taxes and that the suit was brought to enjoin the defendants from thus proceeding illegally. Then follow allegations of the status of tire parties, and that on June 10, 1949, an election was held by the rural high school district to vote bonds to provide funds for acquiring a site for and erection of a school building but that the election proceedings contained no reference to acquiring a site for or the construction of a building for the joint use of the two defendant districts, and similar allegations were made with respect to the common school election of June 10,1949, it being there alleged there was no election for change of site; that the defendants were proceeding to jointly acquire a site and build a building for joint school purposes; that bonds were voted at the two elections which had been sold, the proceeds being held by the two districts which threatened to illegally expend such sums for acquiring a site and erecting a building for joint school purposes. It was further alleged that the rural high school district, under proceedings had before the judge of the district court, had condemned certain lands for a site for a school building and that commissioners had been appointed whose report was approved by the court and that the landowners had appealed from the award made; that the condemnation proceedings were without authority, and without the valid selection of a site and that defendants were threatening to use the same for joint school purposes without any legal authority so to do. Reference was made to the action which was finally concluded in State, ex rel., v. Rural High School Dist. No. 3, supra, and it was alleged that after determination of that action the defendant board members determined to erect a building on the site selected for joint school purposes, had advertised for bids for construction of a school building, and that they had done so without legal authority and without taking the necessary legal steps therefor, and that the defendants would accept bids and illegally contract for the construction of such joint building and illegally jointly use the same, and illegally expend the funds of both districts, and would burden both districts with taxes without any authority in acquiring the site and constructing the building. Plaintiffs further alleged that should it be determined that defendants had illegally expended funds of either district and if the court could not grant adequate, relief by injunction, the court should determine the questions presented and the amounts paid and that the district sustaining a loss because thereof have judgment for the same against the defendant board members, and that plaintiffs had made no demand upon defendants or any of them or upon the county superintendent to recover said illegal expenses for the reason such demand would be of no avail; that plaintiffs did not know exactly what illegal expenditures had been made or contracted to be made. Plaintiffs further alleged a controversy had arisen as to the correct meaning and construction of Laws 1949, Ch. 353 (G. S. 1949, 72-317) and they then set out their interpretation of the statute, which we shall not review. There is no allegation as to what defendants contend. The prayer was that the statute be construed and that the defendants be enjoined from doing the things complained of in the petition. In order that there be no misunderstanding, it is noted that at no place in the petition was there any allegation that the doing of any act complained of would affect the plaintiffs in any manner different than the public at large or that they would suffer any tax burden other or different than that of other taxpayers in the two districts.
The defendants demurred to the amended petition for the reasons it disclosed that plaintiffs had no legal authority to sue and prosecute the action, and that facts sufficient to constitute a cause of action in favor of plaintiffs and against defendants were not stated. The trial court sustained the demurrer and plaintiffs appeal.
In ruling on this demurrer the trial court filed a comprehensive memorandum opinion, from which we quote and adopt the following portions, in which we have inserted the complete citations of the decisions mentioned:
“The basis of the court’s decision is that the plaintiffs as admitted citizens and taxpayers of said districts, do not have legal capacity to maintain the action. That right of action lies in the State of Kansas, by and through the County Attorney of Republic County, Kansas, or the Attorney-general of the State. Perhaps also, said petition fails to state sufficient facts to constitute a cause of action as against the defendants, but in view of the holding that plaintiffs are not by statute authorized to and do not have legal capacity to maintain the action, the question of the sufficiency of the petition does not appear to be material to this decision.
“The authorities on the subject would appear to be quite uniform in holding that such legal capacity does not exist:
“It is to be noted that the allegations of the amended petition, nowhere alleges that any burden to be suffered by the plaintiffs, or any tax or assessment to be levied, is peculiar to them as different from the burden to be cast upon the general taxpayers of the district involved.
“Craft vs. Jackson County, 5 Kan. 518; Nixon vs. School District, 32 Kan. 510, 4 Pac. 1017; Abraham vs. Weister, 103 Kan. 162, 172 Pac. 998; Gormley vs. School Board, 110 Kan. 600, 204 Pac. 741; Citizens Utilities Co. vs. City of Goodland, 146 Kan. 172, 69 P. 2d 318; Weigand vs. City of Wichita, 111 Kan. 455, 207 Pac. 651; Home Riverside Coal Mines Co. vs. McAuliffe, 126 Kan. 347, 267 Pac. 996; Robertson vs. Kansas City, 143 Kan. 726, 56 P. 2d 1032; Grecian vs. Hill City, 123 Kan. 542, 256 Pac. 163; Jaeger vs. City of Hillsboro, 164 Kan. 533-7, 190 P. 2d 420; City of Holton vs. Jackson County Comm’rs., 138 Kan. 163, 23 P. 2d 605; Rodenbeck vs. Darby, 139 Kan. 759, 33 P. 2d 306; Kansas Utilities Co. vs. City of Burlington, 141 Kan. 926, 44 P. 2d 223; Dunn vs. Morton County Comm’rs., 162 Kan. 449, 177 P. 2d 207; Joint Consolidated School Dist. No. 2 vs. Johnson, 163 Kan. 202, 181 P. 2d 504.
“The above does not exhaust the cases, but is deemed sufficient in principle to sustain the contention that plaintiffs do not have the legal capacity to maintain the action.
“ ‘Appellants also stress claimed illegality of contracts made by the city for improvement of the levee, or the use of it as improved. In their petition it is alleged the doing of' these acts is not authorized by law and may result in the creation of a public burden and the levy of illegal taxes. There is no allegation that plaintiffs will be harmed in any manner different from the public at large. While testimony was taken showing various acts and contracts complained of, there was no showing in the evidence that plaintiffs would have their tax burdens increased. Their apprehension that such result would follow depends on events which may or may not occur. . . . There was no showing appellants would sustain any special damage and different in kind from the public generally. Appellees urge that in such case appellants may not maintain an action for injunctive relief. We agree. The question raised has been before this court many times, and it has been repeatedly held the only proper plaintiff in an action for injunctive relief against abuse of power by municipal officers is the state, or one of its officers charged with responsibility of scrutinizing the acts of public officers and board.’ Robertson vs. Kansas City, 143 Kan. 726-731, 56 P. 2d 1032.
“In the absence of a specific statute authorizing it, a private person cannot maintain an action challenging the regularity of official or corporate action.
“Nixon vs. School District, 32 Kan. 510, 4 pac. 1017; Dunn vs. Morton County Comm’rs., 162 Kan. 449, 177 P. 2d 207.
“Under R. S. 60-1121 an individual taxpayer cannot maintain an action to enjoin public officials from entering into a contract alleged to be unathorized unless his burdens as a taxpayer may be increased by tire threatened unauthorized contract.
“Home Riverside Coal Mines Co. vs. McAuliffe, 126 Kan. 347, 267 Pac. 996; City of Holton vs. Jackson County Comm’rs., 138 Kan. 163, 23 P. 2d 605; Rodenbeck vs. Darby, et al., 139 Kan. 759, 33 P. 2d 306.
“As previously observed, these are (not) all the authorities on the various questions, but it seems to be (me) that they are to the effect that plaintiffs cannot maintain the action — that the only proper party is the state, and because of such situation, the demurrer has been properly sustained and this case dismissed at plaintiffs cost.”
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action on a promissory note. A jury trial resulted in judgment for one of the defendants. The plaintiff has appealed and contends his demurrer to defendant’s evidence should have been sustained and that there were other enumerated trial errors.
The petition alleged that on August 7, 1941, the defendants, Thomas C. Vandine, Rosie L. Vandine and W. H. Lyon, made and delivered to the plaintiff a promissory note for the sum of $375, due in five years from date and bearing interest from date at the rate of five percent per annum from date until paid. A copy of the note was attached to the petition. It further alleged that no part of the note had been paid. The prayer was for judgment for $375 with interest at five percent from August 7, 1941. Thomas E. Vandine made no defense and judgment was rendered against him on November 14, 1949. Rosie L. Vandine filed an answer on behalf of herself and W. H. Lyon in which she admitted that on or about August 7, 1941, both of them made and delivered to plaintiff a certain promissory note in writing. The answer contained a general denial of the other allegations of the petition and further alleged:
“. . . that the promissory note above referred to was given as a renewal of a promissory note from this Defendant to the Plaintiff, made and delivered sometime during the year 1936, the exact date of which this Defendant cannot at this time state. That the promissory note given in the year 1936 and tifie renewal promissory note above referred to were given without consideration of any nature whatsoever and were given at the request of and for the accommodation of the payee, the Plaintiff herein. That the promissory note given in the year 1936 and the renewal note above referred to were extorted from this Defendant by the Plaintiff by fraud and duress on the part of said Plaintiff.”
This was verified by Rosie L. Vandine. Plaintiff filed a reply which contained a general denial of every allegation of new matters stated in the answer and alleged that the note which is the subject of this action was given in exchange for a promissory note held by plaintiff for $300 with approximately five years’ interest. It renewed the prayer for judgment.
When the case was called for trial plaintiff introduced the promissory note and rested. Rosie L. Vandine, the only witness shown by the abstract to have been called, testified in substance or as quoted as follows: That Thomas C. Vandine was her husband before her divorce (the date of which is not shown) and W. H. Lyon is her father; that she signed the note which is the subject of this suit and that it is a renewal of the note signed by Thomas C. Vandine, W. H. Lyon and Rosie L. Vandine in 1936. She was asked to tell the circumstances under which the three of them signed the original note and answered:
“Well, it started back in 1935. There was no work here and Oliver came down to visit his folks. He came over and talked to Tom and I and talked us in the notion of going up there to go to work in the gold mine. Oliver was there in the mine. He said that he could get Tom work within two weeks, or two months at the most, and in the meantime he would furnish us a house to live in and furnish us our groceries and clothing until’ Tom got on work. So we sold everything we had, and Oliver took us up there. We got up there and were there for nine months and no work or nothing at all.”
The record shows the plaintiff, Oliver W. Vandine, lived at Leeds, South Dakota, and that he is a brother to the defendant, Thomas C. Vandine. The witness further testified that at the time they went to Oliver’s home in South Dakota they had one child about two years of age. Another was born while they were living there. When that child was born they went down and asked for relief and were refused. Oliver furnished them a place to live and their groceries. That kept up for nine months when the witness wrote to her father and mother to come and get them. Her father had no car and hired a Mr. Russell to make the trip. They arrived at Leeds the middle of one afternoon and stayed all night. The next morning when they were packed up and ready to start back to Kansas the plaintiff “came downstairs and says, ‘Tom,’ he says, “here’s a note; I want you, Rosie and Mr. Lyon to sign it, or you’re not going a step of the way home.’ ” They all signed it. There is no testimony tending to show that any objection was made. Besides Oliver the persons present there were Tom, his wife Rosie, and Mr. and Mrs. W. H. Lyon. This was in August, 1936.
The witness testified that while they lived at Leeds, South Dakota they lived in Oliver Vandine’s house, and was asked and answered the following questions:
“Q. Did you pay rent on that house? A. Oliver furnished it to us.
“Q. Did Oliver ever supply you, Tom, or the baby, with groceries of any nature? A. Yes, Oliver furnished us groceries.
“Q. If you were paying for groceries at that time, would you consider say $300 a reasonable figure for board and room for three people for a period of nine months? A. Well, yes, because we got along on just the least we could.
“Q. You wouldn’t consider that outrageous, would you? A. No. Sometimes I made up my grocery bill and sent them in to Oliver and sometimes I got what was on it and sometimes I didn’t.
“Q. But you did get something to eat? A. Yes.”
The witness testified that she was afraid of Oliver and believed he might cause trouble about going if she did not sign the note and that she would not have signed the note if she had felt he would not stop her.
She was asked: “Why was that?” and answered, “Because it was Tom’s place to pay it.”
Asked to tell the circumstances about signing the renewal note she answered:
“We were in Sublette working and Oliver came over, came to the house, asked for Tom, and I directed him to the field where he was working. He went to the field, seen Tom, and he came back and he said, ‘Rosie/ he said, ‘Tom has renewed the note and signed it/ He says, ‘You signed it before; you sign it again/ I was there by myself, so knowing Oliver, there was only one thing to do, go ahead and sign it and save trouble.”
She testified she was afraid of him at that time “Because he had made threats before and I just didn’t like trouble and I wasn’t going to take any chances.”
She was asked: “Q. Well, did he threaten you in any way? A. He said, ‘Rosie, you sign this.’ ”
On cross examination she was asked categorically both with respect to signing the note in 1936 and to the renewal of it in 1941 and answered that Oliver had not threatened to strike her, put her in jail, lock her up, harm her child or her father or Tom, or to take any of her property, or to put her father or Tom in jail. She was further asked and answered questions as follows:
“Q. You read this note over before you signed it, didn’t you? A. I did.
“Q. And you have stated that you can read and write? A. I can.”
She was asked and answered questions about an attempt of Oliver to have the makers renew the note sued upon when it became due in 1946. She testified:
“A. Oliver said, ‘Tom, I came back to renew this note. I want you, Rosie and her dad to sign it.’ Tom says, ‘I’ll sign it if you’ll leave Rosie’s and Mr.' Lyon’s name off of it. It’s my note; not theirs/ And Oliver objected and they argued there for a while and so Oliver said, ‘All right/ he says, ‘If you won’t have their names on it, renew it like that/ he says. ‘There’s ways of making you pay it, and I’ll show you.’ ”
Much of this testimony was admitted over objections of plaintiff. At the close of the testimony plaintiff demurred to the evidence on the ground that it stated no defense. The court sustained the demurrer as to W. H. Lyon, but overruled it as to Rosie L. Vandine. It will be noted the testimony did not tend to sustain any of the following defenses pleaded, namely, that the note was “given without any consideration of any nature whatsoever,” or that it was given “for the accommodation of the payee,” or that it was “extorted” from defendant by “fraud.” In this court counsel for appellee does not contend the testimony sustained any of those allegations. If there had been duress at the signing of the first note in 1935, that is no longer available to the appellee since she signed the renewal note in 1941. The court properly instructed the jury: “It is not an issue in this case whether the first note was signed under duress.” Defendant did not complain of that in the court below, and appellee does not complain of it here. The court submitted the case to the jury on the sole question as to whether Rosie L. Vandine signed the renewal note in 1941 under duress. The jury found in her favor and answered special questions. Plaintiff’s motion to set aside the answers to the special questions for not being sustained by the evidence, for judgment notwithstanding the verdict, and his motion for a new trial, were all overruled, hence this appeal.
The sole legal question for our determination is whether the evidence was sufficient to sustain the defense of duress. Appellant contends it was not. We think the point is well taken. When plaintiff presented the renewal note to appellee for her signature she was already liable upon the note given in 1936. It had been given for a valuable consideration, the amount of it was not excessive, and its terms were not harsh. All of this was shown by appellee’s testimony. It is true that she testified at the trial in November, 1950, more than fourteen years after she had signed the note, that she would not have signed if she had not felt plaintiff would have stopped her from going home, and gave as a reason “Because it was Tom’s place to pay it.” This did not release her from liability on the note. Many a wife has signed with her husband a note for indebtedness which as between them it was his place to pay. We know of no rule of law that in such a case the wife was not liable to the payee. Counsel for appellee does not contend the wife is not liable to the payee with her husband under such circumstances.
To constitute duress there must be a wrongful act or wrongful threat which compels apparent assent by another to a transaction without his volition. (Restatement, Contracts, § 492.) Nothing of that kind appeared in the testimony of appellant. After plaintiff had seen Tom and he had signed the note plaintiff advised the appellee of that fact, reminded her that she had signed it before, and asked her to sign it again. She read it and signed it, and that is about all there was to the transaction. The principle announced in the Restatement has been announced and followed in many of our decisions. We cite a few of them.
(Gabbey v. Forgeus, Adm’r, 38 Kan. 62, 15 Pac. 866; McCormick v. Dalton, 53 Kan. 146, 35 Pac. 113; Banking Co. v. Veale, 84 Kan. 385, 114 Pac. 229; Milling Co. v. Gas & Electric Co., 115 Kan. 712, 225 Pac. 86; Riney v. Doll, 116 Kan. 26, 225 Pac. 1059; Western Paving Co. v. Sifers, 126 Kan. 460, 268 Pac. 803; Jones v. Prickett, 135 Kan. 640, 11 P. 2d 1008; Brane v. First National Bank, 137 Kan. 403, 20 P. 2d 506; Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P. 2d 149.)
We know of none to the contrary.
The judgment of the trial court should be reversed with directions to sustain plaintiff’s demurrer to defendant’s evidence and to render judgment on the note against Rosie L. Vandine. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
This is a suit to recover money on an express oral contract. The appeal is from an order sustaining a demurrer to plaintiff’s amended petition.
C. A. Clover died intestate a resident of Gray county on May 4, 1949, and in due time an administrator was appointed for the administration of his estate. Shortly thereafter, and within the time prescribed by the probate code for the filing of claims in probate court against the estate of deceased persons, the claimant, Carrie M. Smith, a sister of the decedent, filed a petition in probate court for the allowance of a claim against his estate charging the estate was indebted to her in the sum of $2,560 under and by virtue of an oral contract whereby, on March 17, 1933, and pursuant to the terms of such agreement, she had conveyed her brother an undivided one-fifth interest in a half section of real estate located in Gray county, by warranty deed reciting receipt of $1 and other valuable consideration, upon his promise and agreement to pay her a satisfactory amount for her interest in the land when he got on his feet.
Soon after the foregoing petition was filed in the probate court the administrator of the estate moved to make it more definite and certain in 10 particulars. This motion was sustained and the petition was amended. The administrator then demurred to the amended pleading. Thereupon, on request of the claimant, the case was transferred to the district court for further proceedings and trial. There the administrator’s demurrer to the claimant’s amended petition was sustained and she was given additional time to plead. Claimant took advantage of the permission accorded her by the trial court and filed a second amended petition which, omit ting formal allegations and divers other averments pertaining to the factual situation heretofore related, reads:
“5. That the deceased, C. A. Clover, is the brother of this petitioner, and that said brother came to petitioner’s house in Greenwood County, Kansas, on or about the 17th day of March, 1933, and orally offered to purchase petitioner’s one-fifth (%) undivided interest in the above described land. That C. A. Clover offered to pay this petitioner a satisfactory amount for her one-fifth (%) undivided interest in the land when he, C. A. Clover, get on his feet. That petitioner does not remember the exact words used by C. A. Clover in his oral offer. That no definite price was fixed in the oral agreement as to the satisfactory amount which would be paid petitioner, but in effect and purport meant fair market value of the real property on or about the 17th day of March, 1933, that no definite time for payment was fixed in the oral agreement but in effect and purport meant that C. A. Clover would pay petitioner when he, C. A. Clover, became financially able to pay.
“6. That petitioner orally accepted the offer made by C. A. Clover, deceased. That on Or about the 18th day of March, 1933, this petitioner signed and delivered to C. A. Clover a deed conveying her one-fifth (1/5) undivided interest in the above described real property; which deed is now recorded in the Office of the Register of Deeds, Gray County, Kansas, in Quitclaim Deed Book Forty-one (41), page Five hundred eighty-one (581) and is referred to and made a part of this petition as if fully set forth herein.
“7. That C. A. Clover was the brother of petitioner, and that C. A. Clover lived in and was a resident of Gray County, Kansas, from about 1933 until the date of his death. That petitioner was a resident of Greenwood County, Kansas, from the date of the agreement above described and is now a resident of Greenwood County, Kansas. That the distance from petitioner’s residence to the former residence of C. A. Clover was approximately 200 miles. That from 1933 until the date of deaflr of C. A. Clover, petitioner saw C. A. Clover only a few times. That C. A. Clover did not discuss his financial affairs with his family or friends. That petitioner did not know anything of the finances of C. A. Clover from 1933 until a few months before the date of his death. That because C. A. Clover did not discuss his financial affairs with his family or friends, petitioner made no inquiry as to the financial affairs of C. A. Clover, prior to the death of C. A. Clover. That since C. A. Clover was petitioner’s brother and petitioner did not know anything of the financial affairs of C. A. Clover, no demand has ever been made of C. A. Clover for payment of the amount due.
“8. That within two years from the date of death of C. A. Clover, who died on or about the 4th day of May, 1949, C. A. Clover told petitioner that he thought he would soon be on his feet and that he would then take care of the debt he owed petitioner. That petitioner does not remember the exact words used by C. A. Clover but in effect and purport meant that he, C. A. Clover, would soon be financially able to pay petitioner for her interest in the land. That this was the first time after the 18th day of March, 1933, that C. A. Clover stated to petitioner or to anyone else, to the petitioner’s knowledge, that he was about to get on his feet financially.
“9. That C. A. Clover got on his feet and became financially able to pay petitioner prior to his death. That petitioner first learned shortly after the 8th of July, 1949, when the inventory and appraisement was filed in the Probate Court of Gray County, Kansas, in the Estate of C. A. Clover, deceased, that C. A. Clover and his estate were financially able to pay the amount owed petitioner.”
The next move in the district court was made by the administrator who challenged the pleading just quoted by a motion wherein he asked:
“1. For an order of this Court striking from said Second Amended Petition, all of paragraph 8 thereof for the reason that all allegations and matters therein contained are redundant and irrelevant.
“2. For an order of this Court requiring claimant to attach to her Second Amended Petition, a copy of the deed referred to in paragraph 6 of said Second Amended Petition.
“3. For an order of this Court requiring Claimant, Carrie M. Smith, to amend and make more definite and certain, the 9th paragraph of her Second Amended Petition so as to set forth on what date the said C. A. Clover first ‘got on his feet and became financially able to pay petitioner prior to his death’ and if she does not know approximately what date the said C. A. Clover first ‘got on his feet,’ to amend her said Second Amended Petition by so stating."
After a hearing the district court sustained the first ground of the foregoing motion and overruled grounds 2 and 3. Immediately after this ruling the administrator demurred to the pleading in question on the basis it failed to state a cause of action and, showed upon its face the contract therein relied on was too indefinite to be enforced and that if claimant ever had any cause of action under its terms it was now barred by laches and the statute of limitations. When this demurrer was sustained the claimant perfected the present appeal and now, under proper specifications of error, charges the trial court erred in sustaining the demurrer and in sustaining the motion to strike paragraph 8 of the second amended petition.
From what has been heretofore related it is apparent the principal issue for decision in this case springs from the trial court’s ruling on the demurrer. We have little difficulty in concluding contentions of the appellee to the effect its action in that respect can be sustained on grounds of laches on the part of the appellant, indefiniteness of the contract or, except for questions pertaining to the statute of limitations, failure of the pleading to state a cause of action, cannot be upheld. The books, as will presently appear, disclose many cases holding that a contract to pay when the promisor is able or when the financial condition of his business permits are enforceable.
The question whether appellant’s cause of action is barred by the statute of limitations presents a far more serious question.
Under our statute (G. S. 1949, 60-306) and our decisions construing its terms there can be no question that the statute of limitations does not commence to run against a cause of action based on contract until the accrual thereof and that the accrual of the cause of action means the right to institute and maintain an action for its enforcement. (See Fletcher v. Holcomb, 142 Kan. 177, 181, 45 P. 2d 1053; Kinnard v. Stephens, 122 Kan. 347, 251 Pac. 1085; Bruner v. Martin, 76 Kan. 862, 868, 93 Pac. 165.)
It must, we believe, be conceded that under its terms as pleaded the appellant could not have maintained successfully an action against the promisor upon the contract until the latter got on his feet or became financially able to pay. Thus it becomes evident her cause of action did not accrue and the statute of limitations did not begin to run against a right of action upon his promise to pay until the happening of that event. This conclusion is supported by well recognized legal treatises and by our own decisions. See 34 Am. Jur., Limitations of Actions, 113 § 140, where it is said:
“The statute of limitations does not begin to run against a right of action upon a promise to pay a debt when able, until ability to pay exists, especially where the debtor is in no way derelict in his efforts to acquire the means to pay. Although the authorities do not seem to be uniform, it has been held that a promise to pay ‘when convenient,’ ‘or at earliest convenience’ or ‘earliest possible convenience,’ is a promise to pay when the party making the promise is able to pay, that is, has the means of doing so, and that the statute begins to run from, and only from, that time. The statute begins to run as soon as the ability to pay becomes a fact, whether the creditor is aware of it or not; and when the statute commences to run, it is not interrupted by the fact that at some subsequent period the debtor may not have been able to pay.” (Emphasis supplied)
See, also, 54 C. J. S., Limitations of Actions, 46 § 131, where the same subject is treated and discussed.
That this court is committed to the rule announced in the foregoing quotation from Amerian Jurisprudence appears upon careful analysis of the opinions in Briney v. Toews, 150 Kan. 489, 493, 95 P. 2d 355; Finley v. Gilmore, 107 Kan. 349, 191 Pac. 256; Henshaw v. Smith, 102 Kan. 599, 602, 171 Pac. 616; Joyce v. Bank, 90 Kan. 745, 136 Pac. 232; Chamberlain v. Monkhouse, 67 Kan. 836, 72 Pac. 860.
The great weight of authority supports the rule, to which we subscribe, that a promise to pay when a promisor is able is not an absolute but conditional promise to pay and that it is incumbent upon the person seeking to enforce such contract to allege and prove the ability of the promisor to pay the obligation (See decisions cited in 94 A. L. R. Anno. 721). By the same token, particularly since, as we have seen, a cause of action based on such a promise accrues the moment the promisor’s ability to pay becomes a fact, we are inclined to the view it should be held the promisee is required to plead when the promisor’s ability to pay became an established fact in order to state a good cause of action. However, we are not required to go that far in the instant case. Heretofore we have called attention to the fact the appellee’s motion to require the appellant to amend the 9th paragraph of her amended petition, by setting forth the date the alleged promisor got on his feet and became financially able to pay appellant prior to his death and if she did not know that date then to amend her petition by so stating, was denied. In view of the allegations set forth in the first sentence of that paragraph appellee was entitled to have such pleading made more definite and certain in the particulars requested and upon successful resistance of that motion the pleading thereafter, when tested by demurrer, became subject to strict construction as to all matters covered by the motion. (See Kinderknecht v. Hensley, 160 Kan. 637, 640, 164, P. 2d 105; Arensman v. Kitch, 160 Kan. 783, 788, 165 P. 2d 441, and cases there cited.)
This construction, under the rule established by our decisions, •compels the conclusion that if appellant had amended her pleading as she should have been required to do the amendment would have shown that the promisor got on his feet and became financially able to pay more than three years prior to the date on which appellant commenced the present action. So construed the amended petition was barred by the three year statute of limitations (G. S. 1949, 60-306 [second]) and the trial court was correct in sustaining a demurrer thereto based on that premise.
We have not overlooked appellant’s contention the 9th paragraph of her pleading shows that she did not learn until after the 8th day of July, 1949, that the promisor and his estate were financially able to pay the amount owed her under the terms of the contract and that therefore her action was not barred. The trouble with this contention is, as we have heretofore indicated, the question when the statute commences to run does not depend on when the appellant learned the promisor became able but upon when his ability to pay actually became a fact.
There remains the question whether the trial court erred in striking paragraph 8 of the pleading in question. We do not think it did. Appellant’s cause of action, as we have heretofore indicated, accrued when the promisor became able to pay, not when statements were made by him as to when he thought he would become able to do so. If, as the amended petition must be construed appellant’s cause of action accrued more than three years prior to the date of the commencement of the action the statute of limitations was not interrupted by reason of the fact that at some subsequent period the promisor may or may not have thought he would be able to pay (34 Am. Jur., Limitation of Actions, § 140, supra) and under the statute (G. S. 1949, 60-312) an acknowledgment of any existing liability, debt, or promise to pay under the terms of a contract had to be in writing and signed by the promisor in order to suspend its operation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to vacate and set aside a judgment and all subsequent proceedings had in a tax foreclosure action. From a judgment setting aside the sheriff’s sale and deed issued pursuant thereto, and quieting plaintiff’s title to the property in question upon its compliance with the judgment, the defendant purchaser has appealed.
This is the second appearance in this court of litigation over the validity of the tax foreclosure judgment and sale in controversy. The first appeal was from an order overruling a demurrer to plaintiff’s (appellee’s) verified amended petition. Our decision affirming that ruling is found in Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P. 2d 925. In that appeal two cases were consolidated. The instant appeal is in what was case No. 37,263, in the former appeal, and involves only the sale to C. L. Dew, a member of the Board of County Commissioners. In the interest of brevity the factual background of the matter as alleged in the verified amended petition will not here be set out, but the summary of those allegations, beginning at the bottom of page 643 and ending with the first paragraph commencing on page 645 of our former opinion, is by reference incorporated herein.
The parties will be refererd to as in the court below.
Defendant Dew’s answer admits that at all times during the tax foreclosure action he was a duly elected and acting member of the Board of County Commissioners of Grant County; that he, together with other members of the Board, authorized and directed the county attorney to institute a tax foreclosure suit, and further authorized the employment of an outside attorney to assist in such procedure. He specifically denies he had prior knowledge that no tax lien existed against the property in question, and further alleges that in truth and in fact a valid tax lien at such time did exist. The answer further denies that he unlawfully, intentionally, wrongfully or fraudulently undertook to deprive plaintiff of the property, or that he practiced any fraud upon plaintiff or upon the court to procure a decree of foreclosure in the action, but, on the contrary, alleges that he acted in good faith in an effort to discharge his duties as a public officer, and that all of his acts, both individually and as a public officer, were carried out and discharged in good faith. The answer then admits that he bid in the property in question at the sheriffs sale, as alleged by the plaintiff, but alleges he was interested in the property by reason of the fact he was the owner in fee of the surface and one-half of the mineral rights; that he bid in such property at a regularly conducted sheriff’s sale, under competitive bidding; that he was the highest bidder therefor, and that all proceedings in connection with such foreclosure action, from its commencement down to and including the sale to him, were regular and in conformity with law, and were carried out in good faith by defendant and all parties concerned. The answer further alleges that plaintiff’s cause of action, if it has any, is barred by the statute of limitations.
The cause proceeded to trial by the court. Oral testimony, if any was introduced, is not abstracted. The court made conclusions of fact and of law. Included in the former is a finding that taxes in the amount of $1.77, for the year 1932, had become delinquent when the property in question was standing in the name of one Long, plaintiff’s grantor; that it had been bid in by Grant County and was entered on the delinquent tax sale records, and there carried until 1942, when it was foreclosed; that plaintiff was served by publication notice only, but, as a foreign corporation, could have been served through the secretary of state; that judgment was rendered June 9, 1942, finding the taxes on the undivided one-half mineral interest in question to be delinquent and unpaid in the amount of $3.27, and foreclosure of such tax lien was ordered. The court then made a finding that the property in question was sold by the sheriff of Grant County to defendant Dew for the amount of $10.00, and that such sale was confirmed and sheriff’s deed issued to him.
The court further found:
“That C. L. Dew, the purchaser of said mineral interest in Case No. 1655, was duly elected as a member of the Board of County Commissioners of Grant County, Kansas, and qualified for such office in 1941, and was a member of said Board at the time the proceedings were instituted in Case No. 1655, at the time judgment was rendered, and at the time of the sheriff’s sale therein.”
The conclusions of law were that plaintiff was a proper party plaintiff in this action; that the taxes for 1932 on the undivided one-half mineral interest in the property involved were properly assessed, were delinquent and were subject to foreclosure; that the service by publication notice in the tax foreclosure action was valid, and that the judgment foreclosing the tax lien on the property in question was valid.
The court then rendered the following conclusion of law:
“V.
“C. L. Dew, by reason of being a member of the Board of County Commissioners of Grant County, Kansasj during the pendency of Case No. 1655, and at the time of the sheriff’s sale therein, was not an eligible purchaser, and tire sale to him was void. The sale and sheriff’s deed issued to C. L. Dew are hereby set aside.”
Pursuant to its conclusions of fact and of law the court rendered judgment barring and excluding defendants from all right, title and interest in the property in controversy, and further decreed:
“. . . that the title of plaintiff to said real property be, and is hereby, quieted and confinned except for the lien of the certain judgment heretofore rendered in case No. 1655 in this court, entitled Board of Commissioners of Grant County, Kansas vs. George S. Howell, et al., in the sum of $3.27 with interest at the rate of 10% per annum from June 9, 1942, and costs in the sum of $4.00; and that the plaintiff, upon payment of said judgment in said action be, and is hereby adjudged to be the owner of the real property heretofore described in fee simple, free of all rights, claims, or liens.”
Defendant Dew’s motion for new trial, alleging erroneous rulings and conclusions of law by the court and that the judgment is contrary to law, being overruled, he has appealed, specifying as error the making of conclusion of law number V, above quoted, the rendition of judgment in favor of plaintiff, and in overruling his motion for new trial.
At the outset we are confronted with plaintiff’s motion to dismiss the appeal, based on the following facts:
The journal entry of judgment recites that the Board of County Commissioners of Grant County, as such, appeared and participated in the trial. That body was adjudged to have a lien' on the property involved. In other words, the earlier judgment, foreclosing the tax lien, was upheld — only the sale and deed to Dew being held void and set aside. He is the only defendant who appealed and his notice of appeal is directed only to plaintiff and its attorneys of record. Our appeal statute (G. S. 1949, 60-3306) provides that:
“. . . A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . .”
and plaintiff contends the Board of County Commissioners is therefore a necessary party to the appeal, the argument being that if Dew should prevail the lien decreed in favor of the Board would necessarily be extinguished — thus its rights would be “affected” within the meaning of the statute, and we are cited to language contained in Grant v. Reed, 163 Kan. 105, 179 P. 2d 945, where it was said:
“We have often held that where a judgment against several defendants is brought to this court for appellate review and it appears that a modification or reversal of the judgment will affect a defendant who has not been made a party the appeal will be dismissed.” (p. 106.)
That isolated sentence, however, must be read in connection with other statements contained in the opinion and from them it is clear that our holding there is to be construed as meaning that notice of appeal must be served on those parties to the litigation to whose interest it is that the judgment of the lower court be upheld and who are interested in opposing the relief sought by the appellant. See Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455; and In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004, where it was held:
“Where — as here — a judgment is brought to this court for appellate review and it appears that a modification or reversal of such judgment will adversely affect a litigant who has not been made a party the rule that the appeal must be dismissed is well established” (citing cases), (p. 325.)
Narrowed down to what actually is sought in this appeal it is clear that defendant Dew seeks to reverse the judgment which decreed the sale and deed to him to be void. If he should prevail the county still has the money representing the amount of delinquent taxes, interest and costs paid by him at the sheriff’s sale, but its lien would be extinquished. If the judgment is affirmed the county still has its judgment lien subject to its being extinguished by payment to the county by plaintiff of the amount of delinquent taxes, interest and costs, as provided in the judgment. Thus it would seem that in either event the result, as far as the county is concerned, would be the same. The facts here are not to be confused with those in Cowley County Comm'rs v. Herbert, 163 Kan. 590, 185 P. 2d 153, also relied on by plaintiff, where the attempted appeal was from an order sustaining a demurrer to a motion filed by the appellant to vacate and set aside a judgment, order of sale, confirmation thereof, and a sheriff’s deed in a tax foreclosure proceeding, and where no notice of appeal was served on the Board of County Commissioners. Obviously, in that case it was to the interest of the county that the foreclosure judgment be upheld.
Without further discussion of the matter we hold it has not been made clearly to appear that a modification or reversal of the judgment appealed from will adversely affect the interests of the county, and the motion to dismiss the appeal is therefore denied.
This brings us to the first of two principal questions involved in this case — is a county commissioner, in his private and individual capacity, an eligible purchaser at a sheriff’s sale in a tax foreclosure action brought by the Board of County Commissioners of which he, during all stages of the proceedings, was a member? We are aware that in view of our ultimate holding an answer to this question is not necessarily essential to what we consider to be a correct disposition of this appeal. However, in the interest of sound public policy and for the benefit of bench and bar generally, we think the question should be answered.
The position of defendant (appellant) is that he joined with the other members of the Board under the appropriate statute (G) S. 1941 Supp. 79-2801 to 2809) in directing the county attorney to bring the tax foreclosure action against the owners of all real estate which had been sold at delinquent tax sales and which remained unredeemed for a period of three years after such sales; that the statute was mandatory; that after the action was instituted all subsequent proceedings were judicial in nature and he and other members of the Board had no further connection with the matter; that the sale here was conducted by the sheriff under competitive bidding, as provided by law; that he was the highest bidder; the sale to him was confirmed and deed issued; and that the whole proceeding, from beginning to end, was free from fraud and any wrongdoing.
He also directs our attention to the fact the legislature, by specific enactment, has declared who shall be disqualified to purchase at a judicial sale, and cites G. S. 1949, 60-3419, a portion of which reads;
“. . . No sheriff or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly purchase the same; and every purchase so made shall be considered fraudulent and void.”
In support of the judgment of the lower court plaintiff contends the principle involved is one of public policy, and invokes the well-established and often repeated maxims — that no man can serve two masters; no agent can serve two principals; that a trustee or other person occupying a fiducial relationship cannot traffic in the trust estate; that every public official should scrupulously avoid placing himself in a position where his integrity and honesty can be drawn into question — and cites a number of our early decisions which prohibit a county treasurer from purchasing, directly or indirectly, any land sold by him at a tax sale (Spicer v. Rowland, 39 Kan. 740, 18 Pac. 908; Sponable v. Woodhouse, 48 Kan. 173, 29 Pac. 394) as being indicative of this court’s attitude on the general subject matter.
In examining this question we recognize that in directing the county attorney to bring the tax foreclosure action the Board of County Commissioners of Grant County was merely performing a ministerial duty imposed upon it by statute (G. S. 1941 Supp. 79-2801). We are also aware that by Ch. 362, Laws of 1945, the statute was amended so that the bringing of a tax foreclosure action where the real estate involved is a mineral interest in land which has been severed from the fee, as here, is within the discretion of the Board. However, that subsequent amendment is not necessarily persuasive in our decision on the merits of this case, all proceedings in which were had prior to its enactment.
Little benefit would result from a discussion of such precedents as are cited by counsel for either side, and neither have we found any precisely similar. What is similar in all, though, is the animating principle of fair and honest dealing on the part of those who, by virtue of their positions, have it within their power to acquire interests where they have a duty to perform in a manner inconsistent with such private interests.
We are convinced the conclusion of the lower court that defendant was not an eligible purchaser was eminently correct, if for no other reason than upon grounds of sound public policy. In so holding we do not mean to infer the transactions under review were fraudulent in fact. The law and ethics of a situation such as this should not rest upon the principle of actual fraud, but are founded on the theory that fraud in such cases is best prevented by removing all temptation. In other words, the rule rests on prevention of fraud and is based upon the moral obligation of everyone, and particularly a public official, to refrain from placing himself in a position which ordinarily creates or excites a conflict between self-interest and integrity. We think it is better that the danger and cause of the evil should be prohibited in all cases than that courts should be relied upon to apply the remedy by inquiring into the facts of a particular case to ascertain whether there has been fraud in fact. Fullness of price, absence of fraud, and fairness of purchase, are not sufficient to overcome this rule of policy. Entirely aside from any element of actual fraud, the only adequate remedy is .to declare one occupying the position of defendant an ineligible purchaser at such a sale. On this broad general principle the language of the late Justice Cardozo, when Chief Judge of the New York Court of Appeals, seems very appropriate:
“. . . Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to tiróse bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions. . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.” (Meinhard v. Salmon, 249 N. Y. 458, 164 N. E. 545, 62 A. L. R. 1.)
So far as this particular phase of the case is concerned we agree with the trial court’s conclusion — one in the position of defendant was an ineligible purchaser at the sheriff’s sale.
And this brings us to the all-important question relating to the finality of tax foreclosure proceedings, including the sale, confirmation thereof and sheriff’s deed. Here the tax foreclosure judgment was rendered in June, sale was made in July, and the sale was confirmed and deed issued in August, all in the year 1942. This action to vacate and set aside was not commenced until January, 1946, about three and one-half years later. Defendant contends that even though it should be held he was not an eligible purchaser, nevertheless, plaintiff’s action, not being commenced within six months after the confirmation of the sale, was brought too late, and he relies upon the provisions of G. S. 1941 Supp. 79-2804b (that being the statute in force at the time of the tax foreclosure proceedings in question), which read:
“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of section 19 [79-2803] hereof, or any sale made under the provisions of section 20 [79-2804] hereof but every such action or proceeding, including those brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court. The provisions of this section shall apply to all judgments, orders of sale, and sales whether the purchaser at the foreclosure sale be the county or an individual.”
Plaintiff’s position is that defendant’s title is dependent upon two things — first, a valid sale, and second, a valid deed; that here, there being no competent bidder, there was no sale, hence no deed; that the statute offers no protection to one claiming under a void sale or a void deed, and that they may be attacked at any time.
The precise question was not in issue when this case was previously before us (165 Kan. 642, 197 P. 2d 925, supra). The question there was the correctness of an order overruling a demurrer to the verified amended petition which alleged there were in fact no delinquent taxes against the property which had been foreclosed. We affirmed the lower court, the basis of our decision being that under such circumstances, that is, where no taxes were delinquent, the court would acquire no jurisdiction over the property in the tax foreclosure action, the county would have nothing to sell, and therefore nothing would be conveyed to the purchaser. Putting it another way, the holding in that decision was that the tax foreclosure act (G. S. 1941 Supp. 79-2801 to 2809) simply had no application to property upon which all taxes levied were fully paid.
Here, however, we have a different situation. The court found that taxes for the year 1932 were delinquent and that the property in question had been bid in by the county and carried on the delinquent tax sale records. The court therefore had jurisdiction to render its judgment in the tax foreclosure action in 1942. In other words, the provisions of the tax foreclosure act applied to those proceedings.
Despite our holding that defendant was not an eligible purchaser at the sheriff’s sale, and irrespective of whether the sale, confirmation thereof and the deed be considered void or merely voidable — we are of the opinion plaintifFs action was brought too late. Considering the confirmation of the sale to be an absolutely void “judgment,” it may be argued that under the provisions of G. S. 1949, 60-3009, it could be vacated at any time on motion of a party or any person affected thereby. On the other hand, reference is made to G. S. 1949, 60-303, which provides:
“Civil actions can only be commenced within' the periods -prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.”
Under G. S. 1941 Supp. 79-2804b, every action, either legal or equitable, to open, vacate, modify or set aside ány judgment ren dered for taxes, or any order of sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale, and the provisions of this section apply to all judgments, orders of sale and sales, whether the purchaser be the county or an individual. We think the clear intention of the statute is to supersede any and all other provisions of the code insofar as they may relate to actions to vacate, modify or set aside judgments, orders of sale and sales in tax foreclosure proceedings. The statute fixes a definite time within which such an action may be brought. The legislature had authority to make such a limitation and there was a good purpose in its doing so, namely, that purchasers at tax foreclosure sales would know a limitation of time within which the proceedings might be attacked. To hold otherwise would merely introduce confusion and unsettle every title growing out of a tax foreclosure action. Every title examiner would pause when confronted with a title derived from tax foreclosure proceedings, notwithstanding the statute (G. S. 1941 Supp. 79-2804) states the deed shall convey a fee simple title. Purchasers at tax foreclosure sales could never be certain whether they were purchasing fee simple titles or prospective lawsuits. We think the legislature clearly intended to remove, after the passage of the time prescribed by the statute, the uncertainty which has been conceded by everyone to exist with reference to tax titles.
In passing, we note that the statute under consideration as it now appears (G. S. 1949, 79-2804b) has been amended in that it now provides that such actions to vacate, modify or set aside, must be commenced within twelve months after the date of confirmation of sale, and that other language in the section, as amended, is even a stronger indication of the legislative intent to place a stamp of finality on tax foreclosure proceedings after the expiration of the time prescribed.
See also Blair v. Pooler, 160 Kan. 201, 204, 160 P. 2d 672; Sheridan County Comm’rs v. Acre, 160 Kan. 278, 287, 160 P 2d 250; and Board of County Comm’rs v. Groomer, 166 Kan. 593, 598, 203 P. 2d 237.
In conclusion, and by way of summary — we hold that on account of the facts as hereinbefore related, defendant Dew was an ineligible purchaser at the sheriffs sale. However, taxes lawfully levied for the year 1932 being delinquent, the provisions of the tax foreclosure act (G. S. 1941 Supp. 79-2801 to 2809) applied to the entire foreclosure proceeding. Included in the act is 2804b, the provisions of which have been discussed in detail. The instant action to vacate and set aside, not being commenced within six months from the date of confirmation of the sale, was brought too late.
It therefore follows that the judgment of the lower court is reversed with directions to enter judgment in favor of defendant Dew. | [
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The opinion of the court was delivered by
Harvey, C. J.:
On May 17, 1947, Howard L. Effland, a resident of Morris county, filed a petition for divorce on the ground of gross neglect of duty and extreme cruelty against his wife in which he alleged that she is a resident of Kansas and that her last known postoffice address was 2931 South 18th Street, Omaha, Nebraska. He alleged the date of their marriage, that they have one child, Bruce Howard Effland, then six months of age, who was residing with the mother, and that the parties have not jointly accumulated any property during their marriage. The prayer was for a divorce and “that the court determine and fix an equitable sum which he should pay to defendant monthly for the support, maintenance and education of said minor child. ...”
The case came on for trial July 30, 1947. The defendant made no appearance. The court found that she had been duly summoned as provided by law by publication service, which was approved. She was adjudged to be in default. The court heard the evidence and granted plaintiff a divorce. Nothing was said in the decree about the custody of the child, nor did the court pay any attention to plaintiff’s prayer that a sum be fixed for plaintiff to pay defendant monthly for the support, maintenance and education of the child.
On October 2, 1950, the defendant filed in the same action a petition in which she alleged the filing of the petition for divorce by plaintiff, including the prayer that the court fix a sum which he should pay defendant for the support, maintenance and education of the child; that the decree of divorce was rendered on July 30, 1947, in which no mention was made of the child; that at all times since the petition for divorce was filed the child was residing with defendant and in her custody; that since the decree of custody was entered plaintiff voluntarily contributed $875 by irregular contributions for the care and maintenance of the child, but that the sum had been insufficient and that defendant has been compelled in addition to spend the sum of $1,638 for the past care and maintenance of the child, as per an itemized statement attached, which expenses were necessary and reasonable; that plaintiff has not been relieved of the duty of providing for the child; that he is a strong, able-bodied man, thirty years of age, capable of and is receiving sufficient earnings to properly care for the child; in fact is earning approximately $4,000 a year; that defendant has been ill and hard pressed financially to maintain the child, has been forced to seek employment to provide for herself and the child, is earning $125 per month; that plaintiff owes defendant the sum of $1,638 for the past maintenance of die child, for which sum she prayed judgment, and also prayed that the court make an order granting defendant the custody of the child and allowing her a reasonable sum for the future maintenance of the child. This petition was verified.
Plaintiff filed a motion to quash and dismiss the petition for the reasons, (1) that the proceeding was improperly brought and originates a new item in the case over which the court has no jurisdiction; (2) that it is not based on any principle of law; (3) it violates all established rules of pleading, and (4) that it does not state facts sufficient to constitute a cause of action.
In passing on the motion the court filed a written memorandum in which the court stated facts from the original petition and the one filed by defendant indicating the child was with defendant in Nebraska at the time of the divorce and since, and pointing out that she was asking to recover expenses for the maintenance of the child since the granting of the divorce; that the child was beyond the jurisdiction of the court at the time of the decree and since, and concluded that the court never had jurisdiction over the child, and concluded: “there cannot be any jurisdiction now, as there was nothing to continue.” The court further pointed out that defendant’s petition had not been filed within three years after the divorce, as provided by G. S. 1949, 60-2530. The court expressed no opinion as to whether the defendant could maintain a separate action for the purposes involved and only held that she had no right to proceed in this action. The appeal is. from that order.
We think the trial court erred in its reason and conclusions. Our laws register solicitude for the care, support and education of the minor children of the parents. G. S. 1949, 60-1510 reads:
“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.” (See the many cases cited thereunder and Brown v. Brown, 171 Kan. 249, 253, 232 P. 2d 603.)
Here the custody of the child was not in controversy. The child was with the mother. Apparently plaintiff realized she was the proper person to have custody of the child notwithstanding her dereliction which caused the husband to want a divorce. He realized that she needed financial assistance for the support, maintenance and education of the child and asked the court to determine and fix the sum he should pay monthly for those purposes. We see no reason why his request was not given appropriate attention. It is now explained that the court did not have jurisdiction of the person of the child or of the mother. Is this a sufficient reason for ignoring his request? We shall not decide that question since there was no appeal from the divorce decree. We mention it only as it bears upon the appeal now before us. We only observe that the court had jurisdiction of the person of the plaintiff, and since he asked for such an order he would have been in no position to complain if the court had made the order requested. Since it would have been beneficial to the defendant presumably she would not have objected unless she regarded inadequate the sums re quired to be paid, in which event she could have applied to the court for an increase in the amount much as she is applying now for an allowance. The allowance of the order requested by plaintiff would not have been out of harmony with the statute above quoted.
But whatever may be said about the court not having authority to make an order for the support and education of the child at the time the decree of divorce was granted, for the reason it did not have jurisdiction of the person of the defendant, such impediment no longer exists. By making the application now being considered defendant submitted herself to the jurisdiction of the court just as plaintiff did when he filed his petition for divorce. So, when the court made the ruling from which this appeal was taken it had full jurisdiction of the person of both of the parties.
The court in stating its reasons for quashing and dismissing defendant’s petition to open up the divorce decree and making an allowance for the past and future support of the child stated:
“This judgment having been rendered by default was subject to be opened up at any time within three years of its date, as provided by section 60-2530 G. S. 1935 (1949), but in the instant case that time has long since expired.”
In Lewis v. Lewis, 15 Kan. 181, 192, the identical statute was held inapplicable to a divorce case for the reason that our statute pertaining to summons by publication in divorce cases (now G. S. 1949, 60-1504) required plaintiff to send a copy of the publication notice and of the petition to the defendant by mail, hence defendant could not make the showing required by G. S. 1949, 60-2530, that she had no notice of the case in time to defend. Also that section required defendant to file a complete answer.
The Lewis case was cited approvingly in Hemphill v. Hemphill, 38 Kan. 220, 222, 16 Pac. 457; Larimer v. Knoyle, 43 Kan. 338, 348, 23 Pac. 487; Ensign v. Ensign, 45 Kan. 612, 613, 26 Pac. 7; Roe v. Roe, 52 Kan. 724, 727, 728, 35 Pac. 808; Wesner v. O’Brien, 56 Kan. 724, 729, 44 Pac. 1090; In re Smith, 74 Kan. 452, 453, 454, 87 Pac. 189; McCormick v. McCormick, 82 Kan. 31, 45, 47, 107 Pac. 546; Also in Strode v. Strode, 6 Ida. 67, 52 Pac. 163; Medina v. Medina, 22 Colo. 146, 43 Pac. 1002; Graham v. Graham, 54 Wash. 70, 102 Pac. 891; Matheson v. McCormac, 186 S. C. 93, 195 S. E. 122, 127; Rodgers v. Nichols, et al., 15 Okla., 579, 83 Pac. 925; J. W. Cordray v. Salia M. Cordray, 19 Okla. 36, 91 Pac. 781, 783; and Young v. Campbell (Okla.), 16 P. 2d 65, 74, 75.
The case is criticized in Blair v. Blair, 96 Kan. 757, 763, 153 Pac. 544. There the husband had procured a divorce by publication, and many years later and after the death of the husband, the wife, the named defendant in the divorce case, brought an action to set aside the decree of divorce upon the ground that it was void because of the fraud of the husband in filing an affidavit that he did not know her address when in fact he did, and the further fraud of not sending to her a copy of the publication notice and of the petition for divorce.
In this case the defendant is not attempting to set aside the decree of divorce. Perhaps she is as well satisfied with that as the plaintiff is. All she is trying to do is to have the decree extended so as to include an allowance for the maintenance of the child. Certainly she should not have to comply with G. S. 1949, 60-2530, and file a complete answer to the petition. In short, we think that section of the statute has no application here. It is clear from the record that at the time of the divorce decree the court failed to include a provision for the support of the child for the reason that the court thought it did not have jurisdiction to do so inasmuch as the defendant and the child were not within the state. While that reason is at least debatable it seems clear the court did not consider the plaintiff’s request in that respect and deny it on its merits.
More than that, both under the common law and under our statute and decisions the plaintiff has been under parental duty to provide for the support and education of his minor child ever since the date of the divorce decree. He is not relieved of that duty because of the defendant’s delay in asking the court for an order requiring him to do so. Notwithstanding the inaction of the court on his request, the plaintiff recognized his duty and made irregular contributions to defendant for the support of the child. Defendant gives him credit for that and alleges they aggregated $875, an average of about $21 per month for the time from the decree of divorce until her filing of the petition. She alleges this was inadequate and that she had been compelled to pay additional sums amounting to $1,638 for the past care and maintenance of the child, for which she attached an itemized statement. She further alleged that she has been ill, is hard pressed financially to maintain their son, and has been forced to seek employment, at which she earns $125 per month, and that plaintiff is a strong young man, capable of and receiving earnings sufficient to provide for the child; that he has a farm stocked and equipped, from the operations of which he receives approximately $4,000 per year. On the record before us these allegations are not controverted and are treated as admitted.
In this decision from which this appeal was taken the corut declined to express a view “as to defendant’s right to maintain an independent action for the purposes involved here. It is only held she has no right to proceed in this action.” Counsel for appellee here contend that her remedy, if any, was by a separate action. In Harris v. Harris, 5 Kan. 46, it was held:
“The husband and wife were divorced by the district court of Leavenworth county upon her application, and the custody of the three minor children were awarded to her. Two days after the decree a fourth child was bom. In an action of debt brought against the father for the entire support and education of all the children by the mother: Held that she could not recover in such action.
“That the only way for relief was by opening the decree as to the children, and making such provision for them as might be just under all the circumstances, or by other proper proceedings under or supplemental to the original decree.”
This opinion was explained and followed in Riggs v. Riggs, 91 Kan. 593, 595 to 598, 138 Pac. 628, and this explanation and ruling was quoted and followed in State v. Miller, 111 Kan. 231, 233 and 234, 206 Pac. 744, in both of which opinions earlier cases were cited. In Miles v. Miles, 65 Kan. 676, 70 Pac. 631, the parties were divorced on the wife’s petition. She was awarded the “custody, keeping and maintenance” of the three minor children. Two years after the decree was entered the “wife filed her motion in the same case asking that the decree theretofore granted be modified, and that the defendant be required to pay to the plaintiff, toward the support, education and maintenance of the three minor children, during their minority, such sums as to the court might seem just and equitable.” Upon the hearing the husband objected to the introduction of evidence and raised the question of the jurisdiction of the court to hear it for the reason that the matter had been fully adjudicated and for the further reason that if the prior judgment was to be opened it must be done by petition and not by motion in the original case. Those objections were denied and it was held:
“Under the provisions of section 645 of the code of civil procedure (Gen. Stat. 1901, § 5138, now G. S. 1949, 60-1510), the court retains the right at any time, upon its own motion, or the suggestion of any one interested, to make such reasonable order as may be necessary on either or both of the parties to a divorce action to provide for the guardianship, custody, support and education of their minor children, and such orders may from time to time be changed. Such light exists independently of the provisions of section 568 of the code (Gen. Stat. 1901, § 5054).” (This statute provided that a judgment shall not be vacated until it is adjudged there is a valid defense to the action.)
In the opinion (page 678) it was said:
“While the prayer of the motion was that the judgment be modified, we find from the entire motion that the object thereof was only to have provision made for the support, maintenance and education of the minor children. This was not a modification of the original judgment.”
The same may be said here.
In Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828, the pertinent portion of the syllabus reads:
“Twelve years after the rendition of the original decree in an action for divorce the minor children of the plaintiff and the defendant filed a motion seeking a modification of the decree so as to provide for their custody and education. Held, following Miles v. Miles, 65 Kan. 676, that the court had jurisdiction to entertain the motion and to make such orders as were necessary to protect the interests of the children. . . .”
In Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628, the husband deserted his wife and five minor children in Colorado, where they lived, and came to Kansas. The wife sued for divorce in Colorado and obtained service by publication on the defendant in Kansas. She obtained a decree of divorce which contained no provision relating to the support of the children. Later the wife came to Kansas and filed a suit against the husband to compel him to contribute to the support of the children by reimbursing her for expenditures she had made for that purpose after the decree of divorce. It was held the petition was not demurrable and that on proof of the facts alleged the plaintiff was entitled to an equitable award in her favor. In the opinion the court examined a number of our earlier decisions.
In Rogers v. Rogers, 93 Kan. 114, 143 Pac. 410, the husband abandoned his wife and four minor children in this state and went to Montana. Four years later she brought an action for divorce against him and obtained a decree on publication service. Later she filed an action against the husband for moneys expended by her in the support of the children after his abandonment and before the divorce. The syllabus reads:
“A man who abandons his wife and four small children, leaving them destitute in her care, remaining absent in another state and contributing nothing to their support although able to do so, is hable to respond to an action brought by her after she has obtained a divorce to recover her expenses in supporting the children after the abandonment and before the divorce.”
In the opinion, at page 117, it was said:
“In one respect this case differs from the Riggs case. Here the action is to recover for the expense of furnishing support after the abandonment and before the divorce. There it was for such expenses incurred after the divorce. This difference, however, adds to, rather than detracts from, the justice of the plaintiff’s claim. . . . Applying that rule it was held in the Riggs case that an independent action might be brought in a jurisdiction where the defendant could be summoned in which the same considerations would apply and relief could be obtained. If this were a question of the support of the children after the divorce, the parties being in the jurisdiction of the court granting the divorce, the question might arise whether a motion to open the decree would not be the more appropriate remedy. This, however, is a mere matter of the form of procedure. The parties are the same and they are in the same court, and in the absence of any showing or suggestion of any complications which could better be determined in the former action, no reason appears why relief should not be given in this action.”
In Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529, plaintiff filed an action for overdue and unpaid installments of alimony awarded her by a decree of divorce and in which a second cause of action was joined for expenditures for the support of the minor child of the parties. Plaintiff recovered and on appeal the court held the action might be maintained, but as to the money alleged to be due for the support of the child the court held:
“In an action by a mother to recover expenditures for the support of a minor child, made necessary because of the father’s neglect of parental duty, none but sums actually paid and reasonably necessary for the purpose can be recovered.”
Respecting that it was said in the opinion (page 270):
“Expenditures of this character cannot be recovered in a simple action of debt because the propriety of all such expenditures depends upon a variety of considerations. The action must in the nature of things be equitable in character. (Riggs v. Riggs, 91 Kan. 593, 138 Pae. 628.) But the fact that such expenditures must be reasonable and just under all the circumstances, to authorize recovery,-does not permit recovery of what would be a reasonable sum if it had been advanced but which was not advanced.”
In Rowell v. Rowell, 97 Kan. 16, 154 Pac. 243, the syllabi read:
“The duty and responsibility of parents for the maintenance and education of minor children are not altered by the rendition of a decree of divorce in which no provision is made for the children, and the obligation of the father therefor is not canceled by the fact that the divorce was granted to him because of the fault of the mother.
“In such case and where the father neglects to provide for the maintenance and care of the minor children and leaves that burden entirely to the mother she is entitled to recover from him a reasonable amount for the expenditures she has made in providing for their care and support.
“While an independent action may be maintained by the mother for such relief, the more appropriate and complete remedy is by opening the decree of divorce wherein an allowance may be made for past as well as future support of the children.”
In Miller v. Miller, 97 Kan. 704, 156 Pac. 695, the appeal was a controversy over the amount of alimony. In the opinion (page 706) the court had occasion to say:
“No provision has been made for the maintenance of the children of the plaintiff and the defendant. That matter may yet be adjusted as circumstances may justify. (Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628; Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529; Rowell v. Rowell, ante, p. 16, 154 Pac. 243.)”
In Arthurs v. Radloff, 117 Kan. 448, 232 Pac. 243, it was held:
“A wife was granted a divorce and the custody of the children. No provision was made in the decree for alimony nor for the support of the children. Later she sued her former husband for money she had paid out for the support of the children. Held, that the husband should be given credit for payments made since the separation to the wife for the support of their children.”
In Ware v. Ware, 144 Kan. 121, 58 P. 2d 49, the syllabus reads:
“Where the mother of minor children seeks to compel their father to contribute to their future support and education, and obtains personal service on him in an independent action in the same county in which she had previously obtained a divorce from him, based on publication service only, she is not restricted to the supplemental proceedings in the divorce action specified in R. S. 60-1510, but may maintain such an independent action against him for such purpose.”
The wife had procured a divorce from the husband on publication service and obtained a decree in which it made no mention about the support of the children. Later she brought an independent action for an order requiring him to contribute to the support of the children. A demurrer was sustained to the petition and plaintiff appealed. The judgment of the trial court was reversed. In the opinion the court cited Rowell v. Rowell, supra, and other cases, and after considering them, had the following to say (page 124):
“Even if everything desired herein could be done and cared for in the original case, we have not been persuaded that the plaintiff would be prohibited by statute or otherwise from pursuing another course.”
In Teegarden v. Teegarden, 155 Kan. 195, 124 P. 2d 464, the wife secured a divorce from her husband on personal service and was granted permanent alimony and the custody of a minor child, but the decree made no order for the child’s support. More than five years later the wife filed an original action for modification of the decree and for an allowance for the child’s support. It was held:
“Wherein an action in a district court in this state in which personal service of summons is had upon the husband, the wife is granted a divorce, permanent alimony and custody of a minor child, but no order for its support is made, and where some years thereafter the wife files in the original action an application for a modification of the decree, based on change of circumstances, for an allowance for child support, the court has power to make a modifying order, but that order must be made effective from the date of the modification and not from the date of the original decree or from the time of the changed circumstances — the order must operate prospectively and not retrospectively.”
In the opinion the court cites and comments upon a number of cases, including Riggs v. Riggs, supra, and Rowell v. Rowell, supra, and points out that in those cases the divorce had been obtained upon publication service, but following Kendall v. Kendall, 5 Kan. App. 688, 48 Pac. 940, in which, like the case then before the court, the divorce had been granted upon personal service of the defendant, and concluded that while the action could be maintained the order making an allowance must operate prospectively and not retrospectively.
While excerpts from other cases might be given we think what we have set out is ample to establish the following principles: (1) That the parents have a continuing duty to support their minor children, and this is particularly true of the father if he is the money earner or has the property in his name. (2) That the court which grants a divorce has a continuing jurisdiction and duty to make such orders as may be necessary to require such parents to provide for their minor children and to modify them from time to time as the circumstances require. (3) That the court has exercised this authority by an application in the original divorce action or by a separate action brought for that purpose. In at least two of the cases above cited the language of the court indicates that that difference is simply a matter of practice for which there has been no specific statute enacted. (4) When the application is made in the original divorce suit to modify the decree, if the modification requested requires the setting aside of the' divorce decree, or any part of the decree which made a division of property, it must be within the time and in harmony with the statute for opening up judgments. (5) And that when the divorce decree made no order for the support, maintenance and education of the minor children the application need not be brought within the time and in the manner required for opening up judgments and decrees. It may be brought at any time during the minority of the children. This is because of the continuing duty of the parents to support the minor children and of the continuing jurisdiction of the court to make appropriate orders for that purpose.
Counsel for appellee in his brief argues: First, that since our statute (G. S. 1949, 60-1510) requires the court when granting a decree of divorce to make provision for the “custody, support and education of the minor children of the marriage,” that the two things go hand in hand, that is, that the court must do both or neither, and that the court can malee no order for the maintenance of the minor children unless it also makes an order for the custody of the children. We regard that contention as being without substantial merit. Second, that because in the Teegarden case, supra, the court held that the order made should act prospectively and not retrospectively no order could be made in this case pertaining to the support of the children after the divorce and before the application was filed. Even if that were true it did not justify the trial court in quashing and dismissing appellant’s petition. We think the holding in the Teegarden case resulted from the factual situation then being considered, for the cases cited clearly disclose that under some circumstances the court may reimburse the mother for expenses for the maintenance of the child previous to filing the application or suit therefor. Third, that Rowell v. Rowell, supra, is not applicable for the reason that the parties— plaintiff, defendant and children — were all Kansas residents. We think the point is not well taken for the reason that when the defendant filed her application in this case she submitted herself to the jurisdiction of the court, and the court then had jurisdiction over the plaintiff and defendant to the same extent as though she had come into the case before the decree of divorce was entered.
The result is that the judgment of the trial court must be reversed with directions to set aside the order quashing and dismissing defendant’s petition and to hear the petition on its merits.
It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff commenced an action against five named defendants to recover damages sustained in the burning of his auto mobile. Three defendants demurred to the petition and that demurrer having been sustained, the plaintiff appeals. The sole question presented by appellant is whether the petition states a cause of action under the doctrine of res ipsa loquitur.
Omitting allegations not essential to a decision, the petition alleged that defendants Krebbs and Weible owned and operated a garage in McPherson, Kansas, having a storeroom and a separate shop of stated dimensions, the location of doors and windows being set forth and that by reason of the weather they were closed; that in the southeast corner of the storeroom was a wash and grease rack and that by the rack was “a gas fired water heater and steamer used ... in connection with said wash rack;” that suspended from the ceiling of the shop room was a “ceiling type gas fired heater” which employed a fan to circulate air from the heater; and that each device was equipped with pilot lights fired by gas fires. It was further alleged that on February 20, 1948, defendant Kelso operated a bulk gasoline distributing business at Newton, Kansas, and supplied defendants Krebbs and Weible at McPherson and that on that date Kelso’s employee, defendant Weis, drove his loaded truck; that the valves or spigots at the rear of the truck became stuck or frozen so they did not function and gasoline dripped from one of the valves; that Weis stopped in front of the garage and told defendant Schroeder, the foreman and employee of Krebbs and Weible, of the condition of the valves and requested him to thaw out and repair them, and that Weis, following the directions of Schroeder, drove the truck into the storage room, stopped the truck near a floor drain, turned off the engine, and went around to the rear of the truck, lifted the guard over the discharge valves, took from the rear of the truck a wrench used to operate the valves, put the wrench on the valve which was dripping gasoline and attempted to operate the valve and “thereby increased the drip or flow of gasoline from said valve.” It was further alleged that the truck or tanks thereon leaked gasoline which vaporized and that such vapors accumulated in the storage room in the vicinity of the gas fired heater and gas fired steamer, and that shortly after Weis increased the flow of gasoline the vapors were ignited “from some instrumentality in said garage, which instrumentality is unknown to plaintiff, except as stated, and therefore not alleged herein,” that upon the starting of the fire Weis left the rear of the truck with the wrench attached to the valve and with the guard still in a raised or elevated position and went to the front of the truck; that Schroeder started the engine of the truck and drove the truck out of the storage room to the street in front of the garage; that the moving 'of the truck caused the guard at the rear to fall and in falling it struck the wrench attached to the discharge valve causing it to open and. permitting a large volume of gasoline to run freely therefrom; that Schroeder stopped the Ruck about fifteen feet from plaintiff’s automobile; that the Ruck was then on fire and burning with gasoline pouring from the valve at the rear, and that the gasoline ran in the gutter and on the pavement under plaintiff’s automobile setting it afire, and that the fire desRoyed the automobile. It was further-alleged that Schroeder was at all times employed by Krebbs and. Weible as shop foreman and in directing the parking of the Kelso truck and thereafter in driving it into the sReet and at all times while-it was in the garage “he was acting on behalf of said defendants and within the scope of his duties as an employee of the defendants, Krebbs and Weible;” that at all times herein mentioned the defendant Weis was employed by the said defendant Kelso as a Ruck, driver and salesman, and that in driving said Ruck into said garage- and in attempting to repair said discharge valve, and at all other times mentioned, Weis was acting for and on behalf of said defendant Kelso; that at all times mentioned herein the said defendants, and each of them and their servants or employees, were in sole and exclusive charge and conRol of the said storage room and garage of the said Krebbs and Weible Motor Company, and were in sole and exclusive charge and conRol of said storage room and all objects and things therein, including said Chevrolet Ruck and the gas fired steamer and gas fired heater located therein. Then follow allegations that each of the defendants negligently maintained and operated the storage room, permitted the gasoline vapor to accumulate and to ignite, and that their negligence was the sole and proximate cause of plaintiff’s damages, and that the fire started from causes within the sole and exclusive knowledge of the defendants- and each of them; that by reason of the premises stated the burning of plaintiffs automobile was a natural and foreseeable consequence of the starting of the fire and was caused solely from it; that such a fire does not occur where due care is taken by those in charge of vehicles Ransporting gasoline or-where care is taken in the room where such vehicles are being repaired. Allegations as to the amount of damage need not be mentioned.
The defendants Schroeder, Weible and Krebbs demurred on the ground the petition failed to state a cause of action against them and specifically showed that plaintiff could not recover. The trial court sustained the demurrer and the plaintiff appeals.
The journal entry discloses that when the demurrer came on for hearing before the trial court the parties stipulated that in its ruling the court might take into consideration all of the pleadings and proceedings had in a previous action between the present plaintiff and the defendants who are now appellees, as if they were incorporated in the instant petition, it being further agreed that all should be without prejudice to plaintiff’s right to object “to the legal irrelevancy of said former pleadings and proceedings and to their legal insufficiency to justify, in whole or in part, the sustaining of said present demurrer to plaintiff’s present petition.”
We need not comment at length on this departure from accepted practice and procedure. In his brief the appellant now directs attention to the requirement of the code of civil procedure that a demurrer to a petition may be interposed only when it appears on the face of the petition that certain defects appear (G. S. 1949, 60-705) and objects to any consideration of the former pleadings and proceedings. Appellees have filed a counter-abstract, covering portions of the former pleadings and proceedings, and contend that the appellant by his first petition made an election of remedies, i. e. for recovery for specific negligence, and that he may not now maintain an action based on the doctrine of res ipsa loquitur, and an extensive argument is made supporting that contention. What may have been the inducements for the stipulation we do not know, but in the form it was made it hardly precluded the appellant from raising the question that the pleadings and proceedings in the first action and their legal effect are insufficient to justify any ruling on the instant demurrer. If the purpose was only to make it clear that the present action was one founded on the doctrine of res ipsa loquitur and not on specific negligence, that has been accomplished, for appellant’s brief states positively that his reliance was and is upon that doctrine. We will dispose of the appeal on the contention and argument presented by the appellant.
Appellant first contends that the doctrine of res ipsa loquitur may be applied where the defendants are jointly charged with negligence, citing Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404, and that may be conceded. The essential question is whether the facts stated warrant application of the doctrine.
Appellant makes some reiteration of the allegations of his petition and directs attention to the first and second paragraphs of the syllabus in Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, as stating rules as to the doctrine and its application, and argues that the allegations are sufficient to withstand a demurrer. His principal reliance however is on Travelers Ins. Co. v. Hulme, 168 Kan. 483, 213 P. 2d 645. In that case it was alleged that the owner of an automobile left it at a garage for repairs to the gas tank and thereafter the automobile was in the exclusive possession and control of the defendant; while defendant was draining gas from the automobile tank into an open container a fire suddenly occurred and before it was extinguished the automobile was damaged. There were allegations concerning similar operations in a garage and that fires did not ordinarily occur, if due care was used and that the fire resulted from defendant’s negligence, but there was no allegation of specific negligence. The ruling of the trial court overruling the defendant’s demurrer to the petition was sustained, it being held the facts alleged were sufficient to invoke application of the doctrine of res ipsa loquitur and that specific acts of negligence need not be alleged.
Determination of the appeal does not require that we make an extended review of the doctrine of res ipsa loquitur for the subject has been treated in most of the decisions mentioned in this opinion. Illustrative is the statement in Waddell v. Woods, 158 Kan. 469, 471, 148 P. 2d 1016, where it was said:
“This court in former decisions has discussed and defined the doctrine as applied to certain types of negligence cases, and has held that the doctrine of res ipsa loquitur, which means ‘the thing speaks for itself’ is a rule of evidence and not of substantive law, and that the mere fact an accident happens or an event occurs in which injury results is not sufficient to establish liability; that negligence is never presumed but must be established by proof; that where direct proof is lacking, the circumstances may be proved and if they are such as to leave no conclusion to be drawn other than that defendant be at fault, they may be shown to make a prima facie case and to warrant application of the doctrine of res ipsa loquitur. The same opinions disclose that if the plaintiff proves specific negligence the doctrine does not apply, nor where it does apply» is the defendant precluded from showing an intervening cause, the act of a third person causing the injury, vis major or other proper defense to relieve himself of liability. (See, e. g., Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599; Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77; and Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, and cases and authorities cited.) The above cases and the authorities generally hold that it is essential to the application of the doctrine that it must appear the instrumentaliy which caused the injury complained of was at the time of the injury under the sole and exclusive control of the defendant.”
The only conclusion to be deduced from our decisions is that if the plaintiff pleads specific negligence, he may not rely on res ipsa loquitur. (See annotations in 79 A. L. R. 48, 50; 160 A. L. R. 1450, 1452, where many of our decisions are cited.) If that be true here we need not discuss whether all of the defendants were in sole and exclusive control of the instrumentality which may have caused plaintiff’s damages, nor any claimed inconsistent allegations as to agency of Weis or Schroeder, nor that claimed negligence of Weis was the cause of the damage.
The general rule for construing a petition is that specific allegations must be given precedence over general averments regarding the same matter (41 Am. Jur. p. 312; 49 C. J. p. 119) and where specific facts are alleged, additional general allegations are surplusage and constitute a conclusion of the pleader which is not admitted on demurrer (Preston v. Shields, 159 Kan. 575, 156 P. 2d 543). (See also Adams v. Reeves, 136 Kan. 66, 12 P. 2d 731, and Brunsilius v. Farmers & Merchants State Bank, 143 Kan. 148, 53 P. 2d 476.)
An examination of the allegations of the petition, the gist of which has been detailed heretofore, discloses that while there are general allegations as to the lack of plaintiff’s knowledge of the circumstances surrounding and the cause of the fire, there are likewise specific allegations as to everything that occurred from the time Weis drove his truck up in front of the garage of Krebbs and Weible until that truck was driven into the street and plaintiff’s automobile was destroyed by fire from escaped burning gasoline. The allegations of the petition disclose a situation clearly distinguishable from that presented in Travelers Ins. Co. v. Hulme, supra.
In Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 652, 249 Pac. 599, one of our leading cases on application of the doctrine of res ipsa loquitur, the court quoted approvingly from Allen, Appellant, v. Kingston Coal Co., 212 Pa. St. 54, that the doctrine “dangerous and uncertain at best, is never to be applied except where it not only supports the conclusion contended for, but also reasonably excludes every other.” In Waddell v. Woods, supra, page 472, the court stated that the doctrine “is not a rigid or arbitrary doctrine to be mechanically applied, but a rule to be cautiously applied, dependent on the circumstances of the case (citing authority).”
We are of the opinion that in view of the specific negligence pleaded by the plaintiff, the circumstances presented by his petition are such that the doctrine of res ipsa loquitur may not and should not be applied, and that the trial court did not err in sustaining the demurrer levelled at the petition.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises out of a proceeding originally commenced in the probate court for the allowance of a demand.
The petition for allowance of the demand alleged that the Reno County Community Hospital Association, a corporation under the laws of this state, hereafter referred to as the Association, was organized for the purpose of conducting a campaign to raise funds in the amount of $600,000 for the construction of additions to Grace Hospital and St. Elizabeth’s Hospital in the City of Hutchinson and that subscriptions in excess of $500,000 had been obtained; that large subscriptions were solicited from a number of individuals for memorials and that Laura C. Woodford, deceased, was solicited; that after a number of conferences Laura C. Woodford entered into an oral agreement of subscription to the Association by the terms of which, for and in consideration of the gifts of others, she agreed to and did subscribe and promise to pay to the Association the sum of $25,000 which was to constitute a valid claim against her estate and was to be paid out of her estate after her death, such sum to be for the use and benefit of the Grace Hospital and School of Nursing, a corporation of Hutchinson, and hereafter referred to as Grace Hospital, and as part of the funds to increase hospital facilities in Hutchinson and as payment or reimbursement to Grace Hospital for the cost of such enlargement and improvement to the extent of $25,000, and particularly with respect to the construction of the lobby in Grace Hospital as the same was to be constructed, that such sum of $25,000 should not be payable during the lifetime of Laura C. Woodford, but should be payable upon her death and from her estate, with provision that she could take care of the payment by her last will and testament. The association further alleged at length that in consideration of the above it and Grace Hospital agreed that the plans for extension and improvement of Grace Hospital should proceed as though the subscription were a cash contribution, and that a designated memorial plaque should be placed in the lobby of Grace Hospital. It was further alleged that prior to the time the oral subscription and agreement were made a proposed draft of an agreement to be entered into was drawn which was acceptable to Laura C. Woodford except as to one paragraph; that a substitute paragraph was agreed upon and a new draft made and when prepared Laura C. Woodford, the Association and Grace Hospital would sign the prepared draft; that before the subscription and agreement were finally prepared and ready for signing Laura C. Woodford was taken to Grace Hospital where she died before the prepared written agreement, which embodied the terms of the oral agreement, was signed; that Laura C. Woodford died intestate and petitioner is entitled to have its claim allowed against the estate of Laura C. Woodford in the amount of $25,000 and interest at four per cent from the date of her death. The prayer was in accordance.
The American National Bank of Hutchinson, administrator of the estate of Laura C. Woodford, filed its answer denying the allegations of the petition, and alleging it had no knowledge of the purported facts stated and requested that the petitioner be put to full proof.
The probate court heard the matter and allowed the claim, and the administrator appealed to the district court.
In the district court it was stipulated that the hearing should be by the court on the transcript of the testimony taken in the probate court and the exhibits in evidence in that court. Thereafter the parties filed briefs and later the trial court made findings of fact and conclusions of law and rendered judgment in favor of the claimant Association. Briefly stated, the trial court concluded as a matter of law that V. M. Wiley, hereafter mentioned, was the authorized agent of the Association, to accept the terms agreed upon between him and Laura C. Woodford and that there was a meeting of minds between them. The administrator’s motion for a new trial was denied and in due time it appealed to this court, specifying error in the allowance of the claim and that it should have been disallowed for the reason the evidence showed no oral contract of subscription was made or contemplated; that the contract which was being negotiated was never executed by Laura C. Woodford in the form of an offer nor accepted by either the Association or Grace Hospital, and that the contract was testamentary in character and never having been executed as a will, was of no force or effect.
We first note that in support of the judgment in its favor, appellee makes repeated references in its brief to the findings of fact made by the trial court and contends that such findings and the evidence on which they were based, support its contention that a valid oral contract of subscription was entered into between Laura C. Wood-ford and the Association, which was irrevocable at tire time of her death, and that the postponement of payment of the amount subscribed until the death of Laura C. Woodford did not render the subscription agreement testamentary in character. All of the details of the argument based on the findings of fact are supported by citation of authorities tending, at least generally, to support the contentions made.
Appellant, however, directs attention to the fact that the trial in the district court was had upon a transcript of the testimony taken in the probate court and upon the exhibits introduced in evidence in that court, and directing our attention to the rule that where the controlling evidence on issues of fact is written, documentary in character or in the form of depositions or transcripts, it is the responsibility of this court to decide what the facts establish, substantially as it would in an original action (citing In re Estate of Kemper, 157 Kan. 727, Syl. § 1, and p. 734, 145 P. 2d 103; see also Shriver v. Besse, 163 Kan. 402, 405, 183 P. 2d 407; In re Estate of Besse, 163 Kan. 413, 417, 183 P. 2d 414; Dennett v. Meredith, 168 Kan. 58, 62, 211 P. 2d 117; and In re Estate of Davis, 168 Kan. 314, 318, 212 P. 2d 343, and cases cited), contends that it is the duty of this court to examine the evidence,and reach its own conclusion as to what that evidence established. We have no doubt as to the rule stated and it will be followed.
Although limits of space prevent recital of all details, the evidence as abstracted discloses the following: There are two hospitals in the City of Hutchinson — Grace Hospital and School of Nursing, operated by the Methodist Church and Associated Protestant Church organizations, and St. Elizabeth Hospital, operated by the Catholic Church organization. These hospitals were in need of funds for additional buildings and facilities and under an agreement, the exact nature of which was not disclosed, Reno County Hospital Association, Inc., was chartered in 1946 for the purpose of raising funds by subscriptions, gifts, bequests and devises for either or both of the above hospitals. The Association had a board of directors and appointed a number of committees to advance its purposes. V. M. Wiley was appointed chairman of a memorial gifts committee which sought gifts or subscriptions of $1,000 or more. Ry action of the board of directors of the Association Mr. Wiley was given power to accept subscriptions upon such terms and conditions as in his judgment he should deem proper, and to make such agreements as he should deem proper with respect to the use of the funds subscribed and the application of such funds and memorials in either hospital to which they might be assigned. Ry action of the board of directors Roy C. Davis, an attorney of Hutchinson, was appointed as legal counsel. Under the plans followed donors could designate their gifts to either hospital. In taking subscriptions more than one form was used.
Mr. Wiley was given the name of Laura C. Woodford who was a member of the board of directors of the Association and talked, to her in the fall of 1946 about a memorial gift honoring her deceased husband and a gift of $25,000 and a memorial plaque were-discussed. Mrs. Woodford stated at that time that if she did such: a thing she would prefer doing it at Grace Hospital, but that she did not want to sign any paper that would prevent her transferring' her property or making a trust or doing anything she wanted with her estate, and after a long discussion Wiley suggested she go to-see Roy Davis and have him see what could be done to enable her to make the gift without entangling her estate or preventing her from doing anything she wanted to do. Later he met Mrs. Wood-ford at the office of Davis and the three of them discussed plans: by which she might make the gift and have the plaque placed in the lobby of the hospital. At that time a gift of $35,000 was mentioned.
Mrs. Woodford first talked to Roy Davis in November of 1946- and stated she had talked to Wiley; that she had in mind making a $25,000 subscription, but she did not want it to be due until her death; that she also had in mind creating a trust for charity or for scholarships for high school boys and girls and she wanted to know from Davis how a subscription would work out in that connection. Davis discussed the plaque with her and the architect was asked to prepare a sketch. About this time Davis prepared a form of subscription agreement. When Mrs. Woodford saw this form she objected to it and it was destroyed when Davis shortly after-January 16, 1947, prepared a second draft, which was received in evidence. Summarized, this draft, which contained four unnumbered paragraphs, recited (1) That in consideration of the gifts of others and the acceptance of the terms thereof by the Association that (2) Mrs. Woodford agreed to and did subscribe to the Association the aggregate sum of $_, which sum of $-should constitute a claim against her estate and be paid out of her estate after her death, to be for the use of Grace Hospital and as payment or reimbursement of Grace Hospital for the cost of enlargement and improvement, particularly with respect to the construction of the lobby of Grace Hospital as the same would be constructed, and that the said sum of $__ should not become due or payable during the lifetime of Laura C. Woodford but should become due and payable as follows: (3) Upon the decease and death of Laura C. Woodford, provided that if she left a will creating a trust of not less than $150,000, the first net income should be used to discharge her obligation until the amount thereof, with interest at four per cent from date of her death, should be paid. Other extensive provisions of this paragraph need not be set forth. (4) In consideration of the foregoing the Association and Grace Hospital, which by its acceptance would become a party, agreed to proceed with the improvement and complete the same as though the subscription was a cash contribution and that a memorial tablet or plaque of stated size and lettering should be placed in the lobby of Grace Hospital. The witnessing clause stated that Laura C. Woodford affixed her signature on the_day of_, 1947, “to be and become effective, binding and irrevocable upon the acceptance hereof by said The Reno County Community Hospital Association and said The Grace Hospital and School of Nursing.” Immediately below the line left for Laura C. Woodford’s signature was a paragraph to be signed by two witnesses to Mrs. Wood-ford’s signature which stated the witnesses signed at the request and in the presence of Mrs. Woodford. Below were two forms reading, “This agreement is hereby accepted this ._. day of _, 1947.” The first was to be signed by the Association, the second by the Grace Hospital.
On February 17, 1947, there was a conference at Davis’s office at which Mrs. Woodford, Wiley and Davis were present. Mrs. Wood-ford objected to the third paragraph of the proposed agreement and it was stated by Davis that it could be stated that the sum was payable after death of Mrs. Woodford and interest at four per cent, and Mrs. Woodford said that was exactly the way she wanted it and Wiley said it was satisfactory to him; by that time it was after five o’clock and Davis’s secretary had left and he told Wiley and Mrs. Woodford he would make a change in the draft the first thing in the morning. After Mrs. Woodford and Wiley left, Davis wrote out in longhand the proposed change. The next morning Mrs. Woodford came to the office of Davis before the redraft was completed and he read his longhand memorandum to her and she stated that was the way she wanted it. She also made similar statements to Davis’s secretary. He asked her if she could wait until it was typed and she said she had an appointment and would not wait but that she would come back that afternoon or the next morning. Mrs. Woodford did not return. That evening she suffered a coronary occlusion, and was taken to Grace Hospital, and was unconscious until her death a few days later.
The redraft of the above mentioned subscription agreement was in all particulars the same as the agreement prepared shortly after January 16, 1947, except that the blanks in the second paragraph were filled in to show $25,000 and the third paragraph was changed to show, in substance, that the sum was due from Mrs. Woodford’s estate upon her decease but that she retained the right by will to provide for deferred or installment payments, which should bear interest at four per cent from date of her decease, and among other things that the purpose of the provision was that she should not be hampered or restricted in making disposition of her property by a will which provided for the payment of the subscription in some manner other than as a claim payable in cash during the administration of her estate. There was no evidence that prior to Mrs. Wood-ford’s death Mr. Wiley ever saw or approved either the memorandum made by Davis or the last draft of the subscription agreement.
We note that among the exhibits offered was a letter written by “Laura” to Minnie K. White under date of December 16, 1946, in which she stated she was making a Christmas thank offering of $25,000 to Grace Hospital as a memorial to “Charlie” her husband, as well as a letter found after her death, lying sealed on a table in her home, addressed to a friend, bearing no date, in which she mentioned the hospital drive and “I gave $25,000 for a Memorial for Mr. Woodford.” Other exhibits show that Grace Hospital and School of Nursing is a corporation not for profit, with thirty-three trustees, and that the minutes of a meeting of the executive committee of the board of trustees of August 28, 1947, show adopting of a resolution which in a “whereas” paragraph, contained a summarized statement as to the Laura C. Woodford agreement, and resolved that the Association and Mr. Wiley as chairman of a committee were authorized to make the agreement, “such as has been exhibited at this meeting, the same having been reduced to writing, but not executed;” and that the acts of the Association and Wiley in making the agreement were ratified and approved and Grace Hospital agreed to do and perform the duties and obligations to be performed by it under the agreement.
In a negative way it may be said there is no evidence that the board of trustees of Grace Hospital ever authorized Wiley to act for it in any way whatever or that it saw any of the proposed subscription agreements, or consented to any of their terms during the lifetime of Laura C. Woodford, nor is there any showing that Grace Hospital did anything by way of improvement on the strength of any negotiations at any time prior to her death, or that it has since done anything further than to adopt the above mentioned resolution. And as to that resolution there is no showing of any power in the Executive Committee to adopt any resolutions for or in lieu of action by the Board.
Questions concerning benefits to a charitable organization have been considered by this court on numerous occasions as is evidenced by In re Estate of Yale, 164 Kan. 670, 191 P. 2d 906, and In re Estate of Brown, 159 Kan. 408, 155 P. 2d 445, where the benefits were attempted to be conferred by checks which were not honored and paid during the lifetime of the makers where the claims were denied, by subscription agreements to endowment or other funds, which were upheld in Southwestern College v. Hawley, 144 Kan. 652, 62 P. 2d 850, and Cotner College v. Hyland, 133 Kan. 322, 299 Pac. 607, by contract as was disapproved in In re Estate of Smith, 162 Kan. 215, 174 P. 2d 1012, and by other means as shown by cases cited in those above mentioned. In some of the above cases mention is made of the rule that benefits to charitable uses have always been favorites of the law, and that courts have been liberal in the construction of any instruments conferring such benefits because they are calculated to foster and encourage charities, whether religious, educational or for the advancement of the public good. While our consideration of the evidence is measured by the above rule, it is always to be remembered that the facts must make it appear that the donor of such benefits not only had the intention to give but translated that intention by effective action, or stated another way, intention alone is not sufficient, the donor must have so acted that he bound himself or his estate.
It is clear from the evidence that Laura C. Woodford made no gift inter vivos to the Association for although intention by the donor to give money may have been shown, there was no delivery to the donee, the transaction remained in an executory stage and no title passed. See In re Estate of Yale and In re Estate of Brown, supra, and also In re Estate of Baumstimler, 159 Kan. 316, 153 P. 2d 927, which did not involve a gift to charity but did define the requisites of a gift inter vivos.
The case at bar presents the primary question whether Laura C. Woodford, in her lifetime made an enforceable oral subscription, under the circumstances detailed above. We need not devote any time or space to a discussion whether, other things being found, there was sufficient consideration for the subscription, or whether a subscription having been made, it was void as not being timely accepted, or whether for any reason her proposed benefaction was testamentary in character. The question is whether she made a subscription at all.
The Association contends that the evidence was ample to prove that the minds of the contracting parties met as to all of the essential elements of the contract at the conference in the office of Davis on the afternoon of February 17, 1947, and therefore the oral contract of subscription was in all respects valid, and that it was not necessary as a condition of enforceability that it be reduced to writing and executed by the parties, and in support our attention is directed to Babbit v. Insurance Co., 93 Kan. 564, 144 Pac. 837; Stull v. Burdett, 110 Kan. 393, 395, 204 Pac. 1005; Mentzer Bush & Co. v. School Book Comm., 142 Kan. 442, 446, 49 P. 2d 969; Restatement, Contracts, § 26; 13 C. J. 289, 303; 17 C. J. S. 410 and other authorities where enforceability of an oral contract agreed upon before a written contract is executed, is treated. Discussion of the above authorities need not be had if we conclude that the parties intended there should be no binding contract until the agreements made were reduced to writing and executed by the parties.
A careful consideration of the evidence summarized above leads to the following conclusions: In soliciting subscriptions generally, more than one written form was being used. At the very inception of the solicitation of Mrs. Woodford by Mr. Wiley, she made it clear she would not sign any subscription paper that would prevent her transferring property and creating a trust or doing what she wanted with her property; that she did not intend to make an out and out subscription and at the suggestion of Mr. Wiley she discussed the matter with Mr. Davis who prepared a written contract with which she was not satisfied. A second written contract was prepared, and a mere reading of it discloses that she intended to make a donation or subscription under terms and conditions, which to say the least, were not usual, and that it contained provisions for written acceptance by the Association and by Grace Hospital. We are of the opinion that no one at this stage supposed that Mrs. Woodford would have been bound had she said the contract was in proper and suitable form and she would execute it the following day and then have refused to do so. However, she was not satisfied with a particular paragraph and at a subsequent time and on February 17, 1947, she had a conference with Mr. Wiley and Mr. Davis in which the paragraph to which she objected was discussed and in which she stated that if certain changes were made it would be satisfactory. It is to be born in mind that up to this time, each suggestion for a subscription contemplated a written contract, and two such documents had been prepared. The first one is not shown, but the second one explicitly provided for consent and agreement by the Association and Grace Hospital and expressly provided the contract was not effective until so accepted. On that afternoon Mr. Wiley, who represented only the Association, expressed oral agreement with the suggested changes. Owing to the lateness of the hour it was not feasible to have the proposed contract redrafted on February 17, 1947, and it was understood that a redraft would be made and Mrs. Woodford would return the next day. It is clear that at that time neither Wiley, Davis nor Mrs. Woodford considered that a contract had been made or that signing was a mere formality. When Mrs. Woodford returned to Davis’s office the next morning she did read Mr. Davis’s redraft of the one paragraph but the contract had not been redrawn. She left, stating she would return and sign the redrawn written agreement, which would have been an utterly useless thing to do, if as the claimant Association now asserts, the contract was orally agreed upon and concluded on February 17, 1947. Taken altogether, the very facts cry out that no one, Wiley, Davis or Mrs. Woodford, thought on the afternoon of February 17, 1947, that their conversations had resulted in a valid, enforceable oral contract of subscription. We are of the opinion that what transpired shows clearly that Mrs. Woodford did not intend nor consider that she had bound herself to the Association in any sum whatever under any condition until the proposed contract had been signed by her and by the proper officers of the Association and Grace Hospital, nor that Mr. Wiley or Mr. Davis thought otherwise. Indeed, language in the Association s verified .claim is that it was agreed the objectionable paragraph would be stricken, the pencilled draft substituted and “that when prepared as agreed to by the Parties, said Laura C. Woodford and Petitioner and the Grace Hospital and School of Nursing would sign the prepared draft.” In our opinion the various conversations between Mrs. Woodford and Wiley, between her and Davis, and when the three were together for the last time on February 17, 1947, taken into consideration with the drafts of proposed contracts previously submitted to her, were preliminary only to the execution of a written contract, and that until its terms were fully agreed upon and the contract signed, not only by her but by the Association and Grace Hospital, she was not bound.
Were we to agree with the Association’s contention that the parties intended that the rather complex provisions embodied in the written draft were concluded and a final contract perfected by the oral statements made in the afternoon of February 17, 1947, we would still be confronted with the fact that such a contract was one between Laura C. Woodford and the Association for moneys to be used in making improvements at Grace Hospital, and even though it be conceded that Mrs. Woodford for herself and Mr. Wiley for the Association were in agreement, the same claimed contract was one which required the concurrence of Grace Hospital, and there is no evidence whatever that at that time it agreed to anything. The evidence shows no more than that Mrs. Woodford was willing to promise to pay $25,000 on condition — it was an offer which, if ever accepted, was by the belated acceptance by an Executive Committee of the Board of Trustees of Grace Hospital, whose authority might possibly be assumed, but which was not shown.
In view of what has been concluded it becomes unnecessary to discuss the appellant’s contention that under the terms of the written contract the proposed benefit was testamentary in character.
The judgment of the trial court allowing the Association’s demand is reversed and the cause remanded with instructions to render judgment denying it. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by Edward E. Koenke on an insurance policy to recover the value of an automobile destroyed by fire. The insured also made C. H. Hansen a party defendant by virtue of an alleged interest the latter had in the vehicle.
The appeal is by the Iowa Home Mutual Casualty Company, the insurer, from orders overruling its separate demurrers to plaintiff’s amended petition and to defendant Hansen’s answer.
Omitting the caption and introductory paragraph the amended petition, which will be referred to hereafter as the petition, alleged:
“That on or about the 18th day of October, 1948, said plaintiff did purchase from the duly licensed agent of the defendant one policy of insurance together with certain endorsements and riders attached thereto which copy of said policy of insurance is attached hereto and marked Exhibit ‘A’ and made a part of this petition the same as if fully copied herein; that said insurance policy covered one 1948-56c Buick Convertible Coupe covering the actual value of said automobile; that at the time of the purchase of said insurance said defendant was notified that said automobile was encumbered for money due and advanced by one Charles H. Hansen of R. F. D., Humboldt, Kansas, and that said amount of indebtedness was in the amount of $3073.75 and that said defendant did issue and attach to said original policy an endorsement which is attached hereto and marked Exhibit ‘B’ and made part of this petition the same as if fully copied herein; that on the 18th day of October, 1948, this plaintiff executed his promissory note in favor of Charles H. Hansen in the amount of $3073.75 and that by the terms of said promissory note said plaintiff was obligated to pay Charles H. Hansen weekly installments in the amount of $25.00 each week until tire note was paid; that a copy of said note and the endorsed payments thereon is attached hereto, marked Exhibit ‘C’ and made a part of this petition the same as if fully copied herein.
“Plaintiff further alleges that said defendant and its agents were fully appraised of this situation and that at the time of issuing said insurance were informed of the special interest which Charles H. Hansen had in said automobile and did implement the request of said plaintiff by attaching said endorsement herein set out as Exhibit ‘B’ to said policy.
“That thereafter and on or about the 1st day of July, 1949, said plaintiff did default in the payments on said promissory note and that on or about the 1st day of August, 1949, he did physically deliver said security to Mr. Charles H. Hansen in trust for himself and other creditors and that said Charles H. Hansen did orally agree that he would hold said property in trust pending arrangements with creditors to enable said plaintiff to marshal his assets and to pay to said Charles H. Hansen that money which was due by reason of said promissory note herein referred to and again take possession of said automobile; that said plaintiff did sign a certificate of title and deliver the same to the defendant, C. H. Hansen, but that said signing and delivery was subject to said oral agreement heretofore set out as entered into between the defendant, C. H. Hansen and the plaintiff herein.
“Your plaintiff further alleges that said Charles H. Hansen did accept said automobile under said terms and did place said automobile in the garage at the premises of C. H. Hansen, Route No. 1, Humboldt, Kansas, in accordance with said agreement made and entered into between the plaintiff and the said Charles H. Hansen.
“The plaintiff further alleges that on or about the 11th day of September, 1949 said building in which Charles H. Hansen had placed said automobile was destroyed by fire and that said automobile which was the subject of this insurance was completely destroyed by said fire and that said automobile as hereinbefore described was a complete and total loss.”
The petition further alleged:
“That the fire heretofore referred to occurred within 45 days after said Buick automobile was turned over to Charles H. Hansen under the agreement heretofore mentioned and that said loss occurred prior to the expiration of sixty days after said change of possession.
“This plaintiff further alleges that he has made a demand upon Mr. Charles H. Hansen for the return of said automobile but that said return has not been effected by reason of said fire as heretofore stated.
“Plaintiff further alleges that by reason of said promissory note heretofore set out and referred to as Exhibit ‘C,’ plaintiff is indebted to C. H. Hansen in the amount of $2523.75 and that the reasonable value of said automobile turned over to said plaintiff was in excess of the indebtedness by the plaintiff to the defendant, C. H. Hansen.
“The plaintiff further alleges that in accordance with the endorsement attached to said policy of insurance marked Exhibit ‘B’ of this petition said C. H. Hansen did make proper proof of loss to the defendant insurance company and on the 28th day of October, 1949 said company did recognize said proof of loss and did notify said plaintiff in writing that said company denied any and all liability on the loss which occurred on September 12, 1949. That a copy of said letter is attached hereto and marked Exhibit ‘D.’
“This plaintiff alleges that at the time of said fire loss said automobile as covered by the mentioned policy of insurance and attached hereto as Exhibits 'A’ and ‘B’ was of the reasonable value of $3000.00.
“Wherefore, this plaintiff prays judgement in the amount of $3000.00 and reasonable attorneys fees and costs in this action.”
The original insurance policy, the amendment thereof in the form of an endorsement, the note and mortgage to Hansen together with credits thereon and the letter of appellant denying all liability on the ground no coverage was available at the time of the loss were all made a part of the petition. ,,
The endorsement states it constitutes an amendment of the policy. The endorsement undertook to insure whatever interest Hansen as well as the plaintiff-appellee had in the vehicle. It reads:
“Loss if any under coverages D, E, F, G, H and/or combined additional coverage shall be Paid to the insured and Charles H. Hansen as their interests may appear.”
The space provided in the endorsement for a description of the exact nature and character of Hansens interest was left entirely blank by appellant in preparing the endorsement. In that condi tion it was approved and signed by appellant’s president at its home office.
The appellee Hansen’s answer disclosed he entered his voluntary appearance and that by leave of court filed his answer in which he admitted the allegations of the petition and prayed for judgment in the sum of $2,523.75 against the insurer, appellant, together with interest, costs and attorney fees. From the order permitting Hansen to file such an answer, instead of appearing as a plaintiff, there is no appeal.
The demurrer of the appellant to the petition was on the grounds that:
“1. Several causes of action are improperly joined, and
“2. The petition does not state facts sufficient to constitute a cause of action against this demurring defendant.”
The demurrer to the answer of Hansen was on the ground it failed to state a cause of action against appellant. The appellee Hansen filed no brief but has indicated he concurs in the brief of the plaintiff-appellee.
What about the first ground of the demurrer to the petition? The basis thereof is that a cause of action must be framed on some distinct and definite theory in order that a defendant may prepare his defense intelligently. There is no question that this is the rule. In attempting to apply it appellant argues the petition fails to comply therewith for the reason it is confusing in that it might be interpreted as an action against the insurer to collect insurance, or as an action in conversion against Hansen and for a return of the vehicle, or as an action for an accounting between the plaintiffappellee and Hansen. We observe appellant, however, commendably concedes it was probably an action to collect insurance based on the policy with other allegations included.
The original policy and the endorsement must be regarded as a single contract which undertakes to insure the interests of both the plaintiff-appellee and Hansen “as their interests may appear.” We think the amended petition reasonably interpreted discloses the plaintiff-appellee attempted to state the material facts pertaining to the transactions between the three parties involved and to obtain in a single action an adjudication of the rights of both insured parties “as their interests may appear.” So construed the petition was not subject to demurrer for improper joinder of causes of action. “Appellant’s theory in refusing to pay the insurance was that no coverage was available at the time of the loss. It does not appear appellant will have any serious difficulty in preparing its defense to the action of the plaintiff-appellee or to meet the answer of Hansen which in essence adopts the allegations of the petition and which, for all practical purposes, may be, and was, treated by appellant as a petition. In so construing Hansen s answer we are not placing our stamp of approval on this form of pleading but are merely concluding appellant was not and will not be misled thereby.
What about the second ground of the demurrer to the petition? Does it state a cause of action in favor of the plaintiff-appellee? Appellant contends it does not for various reasons. One is the petition discloses the plaintiff-appellee breached the policy by removing the vehicle to a rural community from a place in Wichita where the policy provided it was to be principally garaged and therefore neither he nor Hansen may recover. The contention is grounded on the principle that premium rates are higher in rural communities where there is inadequate fire protection. Manifestly there is often a sound basis for such a contention. Here, however, the plaintiffappellee paid a premium for a comprehensive policy, except as to causes of loss not here material. The insuring agreement VIII further expressly provides:
“VIII. Policy Period, Territory, Purposes of Use: This policy applies only to accidents which occur and to direct and accidental losses to the automobile which are sustained during the policy period, while the automobile is within the United States of America, its territories or possessions,. Canada or Newfoundland, or is being transported between ports thereof, and is owned, maintained and used for the purposes stated as applicable thereto in the declarations.”
It is not contended that if the plaintiff-appelle had driven the car to and garaged it at the place where it was destroyed the vehicle would have not been covered. It seems to us another factor also must be noted. The amended petition expressly states appellant and its agents were fully apprised of Hansen’s interest in the vehicle, as alleged in the petition, at the time the insurance policy was originally issued. The later amendment of the policy by an endorsement clearly recognized Hansen presumably had some interest therein to be protected by insurance. At any rate the purpose of the endorsement was to have Hansen’s interest indicated in the policy and to insure that interest. The description of the nature and character of Hansen’s interest was entirely omitted from the en dorsement by appellant’s agent and in that condition, as previously stated, the policy was approved and signed by appellant’s president.
If appellant is correct in contending Hansen was a mere mortgagee and that the alleged trust agreement may be ignored it is difficult to understand why appellant did not realize Hansen might take and retain possession of the vehicle. G. S. 1949, 58-807 provides:
“In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.”
Notwithstanding all appellant knew, according to the allegations of the petition, it agreed by its endorsement to protect both the plaintiff-appellee and Hansen to the extent of whatever interest they might have in the vehicle. In view of the terms of the entire policy and what appellant, for purposes of the demurrer to the petition, admits to have known concerning both the mortgage and the alleged trust agreement we think it cannot be said the policy was breached by a removal of the car from the city of Wichita. Whether the allegations of the petition can be established by proof is a matter about which we, of course, have no present concern.
Appellant also argues the plaintiff-appellee had completely divested himself of title to the vehicle, was not the owner thereof and had no insurable interest therein whatsoever at the time of the fire. The answer to such contention is that it is contrary to the allegations of the petition and contrary to an apparent recognition by appellant of some interest in the plaintiff-appellee which the endorsement undertook to protect. Whether such an interest can be demonstrated on the trial is not the issue now.
Appellant further stresses the provision in item VIII of the policy that the policy applied only while the automobile was owned, maintained and used for the purposes stated as applicable thereto in the declarations. Its emphasis is placed on the word “owned”. This provision would be significant were it not for appellant’s alleged knowledge of the arrangement existing between the plaintiff-appellee and Hansen at the time the policy was issued and the amendment of the policy by means of the endorsement to cover their respective interests.
It is probably well to observe there is no attempt here to vary or modify the terms of a written endorsement by asserting a different character of interest held by the plaintiff-appellee or Hansen from that described in the total policy. This is a case in which the description of the nature and character of their interests was wholly omitted from the endorsement by the insurance company itself and yet it nevertheless contracted to and did insure those interests, whatever they might prove to be.
Appellant cites Farmers & Merchants Ins. Co. v. Jensen, 56 Neb. 284, 76 N. W. 577, pertaining to a trust agreement between the insured and another which was held to be in violation of the terms of a policy pertaining to title. The case does not deal with an amendment of a policy by a subsequent endorsement, such as is here alleged, or with an allegation in a petition that the transaction between the insured and another was fully known to the insurer at the time the policy was issued.
Appellant also stresses a provision in the policy which provides an assignment of interest under the policy shall not bind the company until its consent is endorsed thereon and states no assignment appears on the policy and no consent is endorsed thereon. That is factually true but here again we are confronted with an endorsement in which appellant agreed to protect the interests of both parties with full knowledge of their arrangement, according to the allegations of the petition, which on demurrer must be accepted as true.
Appellant directs attention to a policy provision that no action shall lie against the insurance company unless as a condition precedent thereto there shall have been full compliance with the terms of the policy. It also refers to G. S. 1949, 60-743 which provides:
“In pleading the performance of conditions precedent in a contract, it shall he sufficient to state that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading must establish, on the trial, the facts showing such performance.”
Appellant stresses the fact the petition does not allege such performance. It is true the petition does not allege performance in so many words. The statute does not make it mandatory such statement be categorically made. It merely says it shall be sufficient if it so states. Instead of merely so stating plaintiff-appellee in the instant case undertook to allege the material facts showing full compliance with the policy. Neither the policy nor the statute requires such a categorical statement of performance in addition to allegations showing performance. Appellant cites no authorities to the contrary and our research has revealed none.
In addition to allegations pertaining to the issuance of the original policy and the endorsement the petition discloses Hansen made timely proof of loss, that appellant recognized this proof of loss and advised the plaintiff-appellee it denied liability on the ground no coverage was available at the time of the loss.
It is true the policy says the insured shall make the required proof of loss. In view of the endorsement including Hansen as one of the insured and appellant’s acknowledgment of proof of loss made by Hansen and in the absence of any complaint concerning the sufficiency of such proof we would not be warranted in concluding the petition did not allege performance of that part of the policy.
Although the petition might have been more artfully drawn in certain particulars, which is frequently true in cases of this character, we think it cannot be said the petition failed to state a cause of action. That is likewise true concerning Hansen’s answer when construed as a petition.
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The opinion of the court was delivered by
McFarland, J.:
Ronald S. Kendig appeals his jury trial conviction of first-degree murder (K.S.A. 21-3401).
On April 14, 1982, at her Topeka home, Shelly Kendig died from being shot twice in the head. Her husband, the defendant, has contended throughout that the shots were self-inflicted. Defendant was charged with first-degree murder. No theory was advanced that the fatal shots were fired by a third party. The sole issue at trial was whether Mrs. Kendig was a victim of suicide or whether she was murdered by the defendant. Inasmuch as no claim relative to the sufficiency of the evidence has been raised, there is no reason to include a general recitation of the evidence in this opinion. We will, of course, state such facts as are necessary to the determination of particular issues before us.
The first issue on appeal is whether the district court abused its discretionary powers in permitting the State to endorse additional witnesses.
K.S.A. 22-3201(6) provides:
“(6) The prosecuting attorney shall endorse the names of all witnesses known to said attorney upon the complaint, information and indictment at the time of filing the same. Said attorney may endorse thereon the names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”
The endorsement of additional witnesses on an information is a matter of judicial discretion and will not be the basis for reversal absent proof of an abuse of discretion. The test of abuse of the exercise of that discretion is whether or not the rights of the defendant were unfairly prejudiced by the endorsement. State v. Costa, 228 Kan. 308, 613 P.2d 1359 (1980). In evaluating the late endorsement of witnesses, the appellate court should not presume prejudice. Actual prejudice must be shown by an appellant such as will impair the ability of a defendant to defend against the charges. State v. Ferguson, Washington & Tucker, 228 Kan. 522, 618 P.2d 1186 (1980).
Between June 21 and August 5, 1982, the State, in various motions, moved to endorse a substantial number of additional witnesses. All of such motions were granted. Trial commenced on August 9, 1982, with voir dire being completed on August 17, 1982. The late-endorsed witnesses were a divergent group, including medical experts and police officers, most of whom did not testify at trial. Nothing would be gained in this opinion by reciting the facts and circumstances relative to each late-endorsed witness. It is sufficient to say we have carefully examined the record and find no abuse of discretion relative to the late endorsement of witnesses.
The second issue is alleged abuse of discretion in the admission of demonstrative photographs and testimony relative thereto.
William Tucker was a firearms examiner employed by the Kansas Bureau of Investigation. Mr. Tucker conducted photographed tests using a live model with physical characteristics similar to the deceased to demonstrate how Ms. Kendig would have to have held the gun to inflict the injuries. In so doing Mr. Tucker used crime scene photographs in order to duplicate the scene.
Defendant objected to the posed photographs on the grounds the deceased’s position on the bed at the time of death may have been altered by the efforts of the emergency medical personnel during resuscitation attempts. Further, defendant challenges the propriety of the demonstration on the basis the model’s arm length was approximately one-half inch shorter than that of deceased.
The admission of posed photographs has been widely discussed in cases and legal treatises. See Annot., Admissibility of Posed Photograph Based on Recollection of Position of Persons or Movable Objects, 19 A.L.R.2d 877. Jones on Evidence has commented:
“Whether a photograph of a reconstructed scene is admissible depends in the first place on whether the reconstruction of the scene would be proper if made as an in-court demonstration. In the second place it depends on whether the photograph accurately portrays the scene which is reenacted through the photograph. The room for discretion is enlarged if the scene to be portrayed or posed is subject to different versions because of conflicting testimony as to the physical facts on which the reconstruction is based.” 3 Jones on Evidence § 17:52, p. 356 (6th ed. 1972). (Emphasis supplied.)
Admission of demonstrative photographs lies within the broad discretion of the trial judge. State v. Jones, 202 Kan. 31, 42, 446 P.2d 851 (1968). See also State v. Wilson, 215 Kan. 437, Syl. ¶ 4, 524 P.2d 224 (1974). In determining whether demonstrative photographs should be admitted a trial judge must determine whether they are relevant and whether a proper foundation has been laid. State v. Woolridge, 2 Kan. App. 2d 449, 450, 581 P.2d 403, rev. denied 225 Kan. 846 (1978). See also State v. Ebelsheiser, 242 Iowa 49, Syl. ¶ 5, 43 N.W.2d 706 (1950). Proper foundation exists when the witness demonstrates he possesses the requisite skill and experience to conduct the demonstration and displays the accuracy and reliability of the models and photographs. State v. Peoples, 227 Kan. 127, 132, 605 P.2d 135 (1980). The question of sufficiency of the preliminary proof to show the accuracy and reliability of the photographs rests largely in the trial judge’s discretion. State v. Woolridge, 2 Kan. App. 2d at 450.
The proper test for admission of reconstructed photographic scenes is whether the conditions are the same or substantially similar to the events depicted. Minor differences go to the weight of the evidence rather than its admissibility. The question of what constitutes a permissible variation depends on whether it tends to confuse or mislead the jury. The admissibility of photographic evidence is within the discretion of the trial judge, and the trial judge’s decision to admit such photographs must be accepted on appellate review absent a showing of abuse of discretion. People v. Cardenas, 42 Colo. App. 61, 65-66, 592 P.2d 1348 (1979).
In the instant action the demonstrative photographs were relevant to the question of whether Ms. Kendig’s death was a homicide or suicide. The expertise of the witness was sufficiently established. The trial judge, in the exercise of his broad discretion, was satisfied with the accuracy and reliability of the demonstration. The fact there may have been some discrepancy between the crime scene and the demonstrative scenes went to the weight of the evidence, not its admissibility. The jury was made aware of possible differences.
We conclude the trial court did not abuse its discretion in admitting the demonstrative evidence.
In connection with the testimony of Mr. Tucker relative to the photographs, defendant contends the court erred in permitting a hearsay statement in the State’s direct examination. The complained-of testimony is as follows:
“A. This [photograph] is depicting the gun at approximately five and three-quarters to six inches away from the head, pointing straight downward at the forehead with the thumb as the actuator on the trigger; in other words, using the thumb to cause the gun to go off.
“Q. For the record, what are the positions of the arms in that?
“A. They are extended.
“Q. Exhibit No. (55); would you explain that, please.
“A. Exhibit No. (55) is having our individual hold the gun in a different manner with one hand with the. — obviously, with the wrist cocked over as far as [it] can possibly go, and we’re trying to show the gun—
“[Defense Counsel]: Excuse me. I would object, Your Honor, to the statement, ‘With the wrist cocked over as far as [it] can possibly go.’ There is no way that we could cross examine the model to figure out at the time that was taken whether or not that is true.
“I think the witness can only testify as to what the pictures show, not the extent to which any bodily function was extended.
“THE COURT: Well, he was supervising it. Overruled.” (Emphasis supplied.)
Defendant contends the phrase “with the wrist cocked over as far as [it] can possibly go” is hearsay as only the model herself could competently state what she could or could not do. The phrase was not hearsay. The witness was only describing his own observation and was not testifying as to any statements made by the model.
We conclude this issue in its totality is without merit.
The third issue is alleged error relative to the trial court’s failure to strike the answer of a witness.
One of the defense strategies in trial was to attempt to depict the deceased as a violent person and the defendant as a nonviolent person. The State’s witness involved in the issue is Patricia D. Jones, a friend of the deceased. On cross-examination the following exchange occurred (objected-to answer is emphasized):
“Q. Did you ever get any complaints from Shelly that Ron was beating her, or abusive physically to her in any way whatsoever?
“A. Shelly was very loyal, and would not — did not tell me about that. I have friends that have told me of it, but not Shelly.
“Q. Friends that have told you of it?
“A. Yes.
“Q. Have any of your friends ever told you about Shelly beating on Ron?
“A. No. I just had a friend tell me about the black eye she sustained from him.
“[Defense Counsel]: Ma’am — Your Honor, I move that that statement by that woman be stricken from the record. It is totally hearsay and outside the scope of examination.
“[State’s Counsel]: Your Honor, it is responsive.
“THE COURT: It is in Cross Examination.”
The question posed by defense counsel sought an answer from the witness as to what “friends” had told her. Defense counsel was seeking a hearsay response and was only dissatisfied with the unfavorable hearsay response he received. The answer was invited and no error may be predicated thereon on the grounds of hearsay.
Defendant next argues the answer was unresponsive. We do not believe that it was. The defense counsel’s cross-examination had already opened up the subject of violence committed upon the deceased by the defendant.
Finally, defendant argues the answer was in violation of K.S.A. 60-455 which prohibits the use of prior crimes or civil wrongs to indicate a disposition to commit an offense. In State v. Green, 232 Kan. 116, 652 P.2d 697 (1982), we stated:
“Numerous decisions by this court have pointed out that where a marital homicide is involved, evidence of a discordant marital relationship, and of the defendant’s previous ill treatment of his wife, including his prior threats to kill her, is competent as bearing on the defendant’s motive and intent. State v. Fenton, 228 Kan. 658, 667-68, 620 P.2d 813 (1980); State v. Anicker, 217 Kan. 314, 316, 536 P.2d 1355 (1975); State v. Patterson, 200 Kan. 176, Syl. ¶ 2, 434 P.2d 808 (1967). In State v. Wood, 230 Kan. 477, 479-80, 638 P.2d 908 (1982), we held such evidence was admissible independent of K.S.A. 60-455, where it was not offered for the purpose of proving the offense charged, but rather to establish the prior violent relationship between the parties and the defendant’s prior intent to kill his wife. These and other cases have indicated the high degree of relevancy inherent in such evidence to prove a critical issue in the case. See State v. Egbert, 227 Kan. 266, 269, 606 P.2d 1022, cert. denied 449 U.S. 965 (1980); State v. Rupe, 226 Kan. 474, 477-78, 601 P.2d 675 (1979).” 232 Kan. at 121.
Further, as previously noted, defendant was the party pursuing this line of questioning.
We conclude this issue in its totality is without merit.
The fourth issue is a claim of ineffective assistance of counsel.
Recently in State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982), this court reiterated the applicable rules previously stated in State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981), as follows:
“ ‘The rules relative to determination of effective assistance of counsel were stated in Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶¶ 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978), and iterated in State v. Voiles, 226 Kan. 469, 470-471, 601 P.2d 1121 (1979), as follows:
“ ‘ “The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.
“ ‘ “Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant’s Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client’s, conviction or otherwise works to the client’s substantial disadvantage, is also a deprivation of the constitutional guarantee of ‘effective’ counsel.
“In applying the foregoing standard to counsel’s performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.” 229 Kan. at 389.’ ” 232 Kan. at 299.
Defendant, on appeal, points to several alleged instances of ineffective assistance of counsel. Some of these arise from the wisdom of hindsight. As stated in Cook v. State, _ Ind. App. _, 403 N.E.2d 860 (1980):
“It is one of the characteristics of human experience that hindsight often reveals alternative courses of conduct that may have produced different results if only they had been employed. Hindsight, however, is not the vantage point from which we judge allegations of incompetence. Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919. It may be that had defendant’s counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel. Crocker v. State, (1978) Ind. App., 378 N.E.2d 645.” 403 N.E.2d at 868.
Applying the well-established rules set forth in State v. Miesbauer, 232 Kan. 291, we have no hesitancy in concluding this issue is without merit.
The fifth issue is whether defendant was denied a fair trial by virtue of allegedly injudicious actions and comments by the trial judge in the presence of the jury.
Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged instances of misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear the conduct was of such a nature it prejudiced the substantial rights of the complaining party. State v. Stoops, 4 Kan. App. 2d 130, 132, 603 P.2d 221 (1979); State v. Thomson, 188 Kan. 171, 174, 360 P.2d 871 (1961). It is a fundamental tenet of law the judge must be scrupulously impartial in presiding at the trial and he must refrain from conduct which might influence the jury in its findings. State v. Anicker, 217 Kan. 314, 317, 536 P.2d 1355 (1975).
Each of the four instances of claimed judicial misconduct is of such trivial nature no purpose would be served by setting forth in this opinion the facts and circumstances pertaining thereto. It is sufficient to say that we have considered each claim, individually and collectively, and conclude this issue is wholly without merit. It is appropriate to note that, in reviewing the record, we are impressed with the careful and capable manner in which the trial judge handled this lengthy and well-publicized trial.
Other points raised have been considered and found to be without merit.
The judgment is affirmed. | [
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Marquardt, J.:
John W. Evans appeals the trial court’s denial of his motion to modify spousal maintenance. We reverse and remand with directions.
Cheryl and John married in June 1979. The parties agreed that Cheryl would work until John received his college degree, then she could cease working outside the home. The couple became foster parents and eventually adopted three children who have special needs. The daughter has cerebral palsy, epilepsy, asthma, and vision problems, and will require in-depth care for her entire life. Cheryl has always been the children’s primary caregiver.
The divorce was tried to the court and a decree was filed in October 2002. The parties were granted joint custody of the children, with Cheryl designated as the primary residential parent. The trial court ordered John to pay Cheryl a lump sum maintenance award of $143,264, payable at $1,184 per month until the sum has been paid in full. The journal entry states: “The lump sum spousal maintenance is not subject to modification.”
In Februaiy 2004, John filed a pro se motion to modify child support and spousal maintenance because he was unemployed. At the hearing on John’s motion, the trial court denied modification of the maintenance because it is “not subject to modification.”
In February 2005, John obtained counsel and filed motions to set aside the judgment and modify maintenance, arguing that only in cases where the parties entered into a separation agreement does the trial court not have jurisdiction to modify maintenance. He argued that since the case was tried to the court, the trial court’s refusal to modify maintenance was erroneous.
It does not appear that there was a hearing on these new motions. Without elaboration, the trial court denied John’s motions and again ruled that it did not have the authority to modify a lump sum award that is payable in installments. The trial court held that it would “honor the previous judge’s decision” regarding a lump sum maintenance award. John timely appeals.
John notes that the initial divorce was tried to the court; therefore, he argues that the trial court had statutory authority to modify the maintenance award.
When reviewing a motion to modify maintenance, this court examines the record to determine if there is substantial competent evidence to support the ruling of the trial court and whether the trial court abused its discretion. Discretion is abused if no reasonable person would take the view adopted by the trial court. In re Marriage of Bowers, 23 Kan. App. 2d 641, 643, 933 P.2d 176 (1997).
This court has plenary review when interpreting a statute. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). K.S.A. 2006 Supp. 60-1610(b)(2) states, inter alia:
“The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree. . . . Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, but no modification shall be made without the consent of the party hable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree.”
When K.S.A. 2006 Supp. 60-1610(b)(2) states that the trial court “may make a modification,” it means exactly what it says. A trial court retains the power to modify court-ordered maintenance at any time, even if the right to modify is not specifically stated in its order establishing maintenance. In re Marriage of Ehinger, 34 Kan. App. 2d 583, Syl. ¶ 8, 121 P.3d 467 (2005). Pursuant to K.S.A. 2006 Supp. 60-1610(b)(2), the trial court may modify maintenance retroactive to a date at least 1 month after the date that the motion to modify was filed.
Under K.S.A. 2006 Supp. 60-1610(b)(2) and (3), the trial court may modify maintenance payments which have been ordered by the trial court where there has been no separation agreement between the parties. In the instant case, Cheiyl and John did not have a separation agreement, and the trial court’s attempt to make the maintenance payment nonmodifiable was contrary to statute and case law. The question then is whether the fact that the payment was ordered as a lump sum makes any difference. K.S.A. 2006 Supp. 60-1610(b)(2) clearly allows maintenance to be awarded in a lump sum.
When a maintenance payment becomes due and unpaid, it is a final judgment. Saroff v. Haun, 28 Kan. App. 2d 471, 474, 17 P.3d 943 (2001). We are unable to find any case law which directly addresses the issue of a trial court ordering a lump sum maintenance award and then ordering it to be paid monthly. In Ehinger, this court held that the “at any time” language used in K.S.A. 2006 Supp. 60-1610(b)(2) must be broadly construed. 34 Kan. App. 2d at 588. We do not believe there is a meaningful distinction between court-ordered monthly maintenance payments and a lump sum maintenance award payable in monthly installments. The trial court erred when it made the maintenance award nonmodifiable, as that order is contrary to K.S.A. 2006 Supp. 60-1610(b)(2).
Under K. S. A. 60-1610(b), the trial court exceeded its authority when it ordered that maintenance originally ordered after a trial to the court could never be modified. This case is remanded to a trial judge who has not previously handled this case to determine if maintenance is merited and, if so, what amount should be ordered.
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Green, J.:
Douglas King appeals from the trial court’s judgment denying his K.S.A. 60-1507 motion. First, King argues that his attorney on direct appeal was ineffective for failing to timely file his appellate brief, resulting in dismissal of his appeal. We agree. Because King’s counsel’s untimely filing of the brief fell below an objective standard of reasonableness and because such performance was highly prejudicial as it foreclosed King’s right to a direct appeal of his sentence, we determine that King is entitled to file a direct appeal of his sentence out of time. We affirm on all other issues. Accordingly, we affirm in part, reverse in part, and remand with directions to allow King to file a direct appeal of his sentence out of time.
In October 1995, King pled no contest to second-degree murder in violation of K.S.A. 21-3402. The parties inform this court that the trial court, on its own motion, imposed an upward durational departure sentence of 206 months in prison. This sentence was double the high end of the guidelines sentence of 103 months in prison.
King filed a notice of appeal and docketing statement with this court. Counsel was appointed to represent King. This court granted several extensions for King to file his brief. Nevertheless, this court denied King’s sixth motion to extend the time to file his brief and dismissed the appeal. Several days later, King moved to reinstate the appeal and submitted a brief to this court. This court, however, denied King’s motion to reinstate the appeal and returned King’s brief to the appellate defender’s office. King petitioned our Supreme Court for review, but his petition was denied.
In July 2003, King moved for relief under K.S.A. 60-1507 as a pro se litigant. King alleged that his appellate counsel was ineffective for failing to timely file his appellate brief, resulting in dismissal of his appeal. Moreover, King argued that his appellate counsel, in the untimely brief, did not present the issues in his case that had merit. In addition, King alleged that his trial counsel was ineffective on numerous grounds and that the trial court had violated his constitutional rights by initially refusing to appoint counsel in his crim inal case, by failing to dismiss the charges based on a speedy trial violation, by imposing an illegal sentence, and by imposing an upward durational departure sentence.
The trial court appointed counsel to represent King on his K.S.A. 60-1507 motion. The trial court held a nonevidentiary hearing and heard arguments from both parties’ attorneys. King was present at the hearing. In two written memorandum decisions, the trial court denied relief to King on all of the issues raised in his K.S.A. 60-1507 motion. Concerning King’s argument that his appellate counsel was ineffective in failing to timely file a brief, the trial court noted that the State conceded that appellate counsel’s performance was deficient and fell below an objective standard of reasonableness. Nevertheless, the trial court determined that King had not been prejudiced by the dismissal of his appeal.
Failure to Timely File Appellate Brief on Direct Appeal
First, King argues that his attorney on direct appeal was ineffective for failing to timely file his appellate brief, resulting in dismissal of his appeal. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. State v. Mathis, 281 Kan. 99, 110, 130 P.3d 14 (2006).
In Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984), the United States Supreme Court held that a criminal defendant has a right to “reasonably effective” assistance of counsel. The Strickland Court developed a two-prong test for evaluating an ineffective assistance of counsel claim. Under Strickland, a defendant must show: (1) that counsel’s performance “fell below an objective standard of reasonableness,” 466 U.S. at 668, and (2) that counsel’s deficient performance prejudiced the defense, 466 U.S. at 694. See State v. Orr, 262 Kan. 312, Syl. ¶ 1, 940 P.2d 42 (1997).
In this case, the State does not challenge that King had a right to effective assistance of counsel on direct appeal of his sentence. Both parties seem to implicitly concede that King had a right to effective assistance of counsel. In Roe v. Flores-Ortega, 528 U.S. 470, 477, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), the United States Supreme Court applied the Strickland ineffective assistance of counsel test to a situation where the defendant’s attorney had failed to file a notice of appeal and thus had denied the defendant his right to appeal. Here, similar to Flores-Ortega, the failure of King’s counsel to timely file a brief effectively denied King the right to a direct appeal of his sentence. Consequently, the ineffective assistance of counsel test can be applied to the present case.
Defective Performance
The State concedes that the first prong of the Strickland test has been met: that King’s counsel untimely filing of the brief fell below an objective standard of reasonableness. Nevertheless, the State maintains that King has not met the prejudice prong of the ineffective assistance of counsel test. On the other hand, King argues that under the facts of this case, prejudice must be presumed, and no separate showing of prejudice is required.
Prejudice
Under certain circumstances, prejudice is presumed, and no specific showing of prejudice is required. See Flores-Ortega, 528 U.S. at 483. Recognizing that no specific showing of prejudice is required when a defendant is denied the assistance of counsel at a critical stage of the proceedings, the United States Supreme Court in Flores-Ortega stated:
“ ‘The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage.’ [Citation omitted.] The same is true on appeal. [Citation omitted.] Under such circumstances, ‘[n]o showing of prejudice [is] required,’ because ‘the adversary process itself [is] presumptively unreliable.’ [Citations omitted.]” 528 U.S. at 483.
Moreover, the Flores-Ortega Court held that “[t]he even more serious denial of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a right, similarly demands a presumption of prejudice.” 528 U.S. at 483. The Court stated that it could not “accord any ‘ “presumption of reliability,” ’ [citation omitted], to judicial proceedings that never took place.” 528 U.S. at 483.
In the instant case, the failure by King’s attorney to timely file an appellate brief denied King the direct appeal of his departure sentence. Under K.S.A. 21-4721(a), King had the right to appeal his departure sentence. K.S.A. 21-4721(a) states: “A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.” It is apparent that King wanted to appeal his sentence because a notice of appeal and docketing statement were filed. Moreover, the attempted filing of the untimely brief indicates that King never told his attorney that he wished to abandon his appeal. Nevertheless, due to appellate counsel’s performance, King was altogether denied Iris right to a direct appeal of his sentence. Once “a defendant is denied assistance of counsel at a critical stage of the proceedings,” which includes a right to an appeal, the defendant need not show prejudice to obtain relief. 528 U.S. at 483. Because tire deficient performance by King’s appellate counsel denied King a direct appeal of his sentence, which King wanted and to which King had a right under K.S.A. 21-4721(a), prejudice to King is presumed.
States Invitation
As stated earlier, the State concedes that King’s counsel’s untimely filing of the brief fell below an objective standard of reasonableness. Nevertheless, the State invites us to do a Strickland prejudice analysis “based on the briefs prepared and submitted unsuccessfully” to this court. The State then proceeds to analyze and dispose of each issue raised in the brief submitted by King but never accepted by this court. The trial court was persuaded by the State’s argument and determined that it could conduct a prejudice analysis based on the issues raised in King’s untimely brief.
Nevertheless, in attempting to show that the arguments raised in the untimely brief were meritless, the State is asking us to assume that the brief was prepared by competent counsel. On the contrary, we have previously determined and the State has conceded that appellate counsel was ineffective in prosecuting King’s appeal. In its memorandum, the trial judge asked, “[H]ow can you trust that the same attorney who could not get a brief filed on time would have made a diligent effort to discover and to develop the most appropriate issues and arguments to assert on appeal[?]” The answer to this question can be quickly summed up: You cannot. Consequently, this court declines the State’s invitation to take up the Strickland prejudice analysis based on a brief that was never accepted by this court.
Moreover, in Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004), our Supreme Court held that the failure by appointed counsel representing Brown in his K.S.A. 60-1507 proceeding to timely notify Brown of the denial of his K.S.A. 60-1507 motion and of his right to appeal resulted in a denial of his statutory right to competent counsel. Our Supreme Court determined that Brown was entitled to file a notice of appeal of the original K.S.A. 60-1507 motion out of time. In making this determination, our Supreme Court declined the State’s invitation to review the trial court’s factual and legal bases for its denial of Brown’s original K.S.A. 60-1507 motion. Later, in Campbell v. State, 34 Kan. App. 2d 8, 13, 114 P.3d 162 (2005), this court stated: “We view the ineffectiveness in Brown as highly prejudicial as it is extraordinary because, unless remedied, it foreclosed a right to appeal.” Similarly, in this case, the ineffectiveness by King’s counsel was highly prejudicial as it foreclosed King’s right to a direct appeal of his sentence. As a result, King is entitled to file his direct appeal out of time.
Because King is entitled to file a direct appeal out of time, we find it unnecessary to address any other issues concerning King’s sentence. Thus, we express no opinion as to the possible success of King’s direct appeal of his sentence.
Moreover, we decline to address King’s argument concerning his trial counsel’s failure to raise a double jeopardy defense because King has not provided this court with an adequate record to review his claim. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 777, 27 P.3d 1 (2001) (“An appellant has the duty to designate a record sufficient to establish tire claimed error. Without an adequate record, the claim of alleged error fails.”). All remaining issues have been abandoned by King. See State v. Seck, 274 Kan. 961, 965, 58 P.3d 730 (2002) (appellant abandoned issues raised on appeal where he failed to provide legal authority or argument supporting contentions); Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991) (refusing to address issue where appellant failed to specify error or cite legal authority supporting argument in brief).
In summary, we reverse on the issue concerning appellate counsel’s failure to timely file an appellate brief and remand to the trial court with directions to allow the direct appeal of Kang’s sentence to be filed out of time. We affirm on all other issues.
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McAnany, J.:
In 2002 Lisa Osterman (Mother) and David Yordy (Father), who were never married to each other, were awarded the joint custody of their 3-year-old son. They shared residential placement on a schedule of Mondays and Tuesdays with Father, Wednesdays and Thursdays with Mother, and alternating weekends. In September 2004, Father moved the court for an order allowing his son to attend Sunrise Christian Academy for preschool. Mother objected. The court ordered that each parent shall have exclusive control over the child while the child was with him or her and, therefore, the boy could attend Sunrise preschool during the alternating days he resided with his father.
In August 2005, as the boy prepared to enter elementary school, Mother moved to allow him to be enrolled in kindergarten in a public school. Father wanted his son to continue at Sunrise where the boy had made friends who would attend kindergarten there with him. Father argued his proposal was in his son s best interests because Father worked at Sunrise as a teacher and coach and could check on his son during the day. Further, the school would waive tuition because of Fathers employment there. Finally, the boy would be taught by a well-qualified teacher in a class of only seven students. Mother, on the other hand, objected to Father having that much contact with his son. She wanted the child to attend school in a “neutral environment.” Following oral argument on the motion the district court sustained Mother s motion. The court stated it would not “order a religious-based schooling in a situation where both parents are not in equal agreement as to that education. . . . Unless both parties are in agreement Tm not going to order the child in Sunrise School.”
Father immediately moved the court to reconsider its decision. The district court held a nonevidentiary hearing on this motion a week later and denied the motion. In doing so, the district court concluded that there is a presumption in favor of public schooling and when one parent objects to a religious school the proponent for attendance at a religious school must overcome the presumption in favor of public schools. Though no evidence had been presented, the court found that Father failed to overcome the presumption.
Father now appeals. He argues that the district court erred by not giving equal consideration to each parent’s choice of a school but rather imposing a presumption against religious-based schooling which Father had to overcome. He also claims the district court erred by not determining which school was in his son’s best interests.
When the district court orders that parents have joint custody of their child, they have equal rights to make decisions in the best interests of their child. K.S.A. 60-1610(a)(4)(A). This includes the decision about which school their child should attend. Thus, Mother and Father had equal rights to make decisions about which school their son should attend. See In re Marriage of Debenham, 21 Kan. App. 2d 121, 896 P.2d 1098 (1995). In the all-too-common event of a dispute on such a fundamental issue between parents who are subject to the court’s ongoing jurisdiction during the minority of their child, it is the job of the courts to resolve the dispute in a manner that is in the best interests of the child. The fact that the dispute centers on the child’s attendance at either a religious or secular school does not absolve the court from deciding the matter. When a court resolves such issues by disregarding the conflicting religious preferences of the parties and focusing on the other important factors in choosing a school for a child, the court does not engage in any State endorsement of, or hostility towards, religious practices that would offend the Establishment Clause of the First Amendment to the United States Constitution. Debenham, 21 Kan. App. 2d at 123. The court cannot refuse to undertake such an analysis simply because the parties cannot agree.
Further, Mother fails to point to, and we cannot find, any precedent or legislative enactment that creates a presumption in favor of a child’s secular education. Such a presumption would seem to be at odds with the government’s posture of neutrality on decisions regarding the religious upbringing of children.
In Debenham, the district court found that attending a religious school was in the child’s best interests, even though one parent objected. On appeal, this court affirmed the district court and found that the district court did not err by basing its decision on what was in the best interests of the child. 21 Kan. App. 2d at 123. The court further found that the district court did not violate the objecting parent’s First Amendment rights because it did not view the matter as one of religious or educational preference but solely as an issue of stability and the continued best interests of the minor child. 21 Kan. App. 2d at 123.
We agree with the reasoning in Debenham. Accordingly, we reverse and remand for an evidentiary hearing on Mother’s motion in which the district court determines which school is in the child’s best interests.
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order overruling defendant’s motion to vacate an alleged void judgment.
The factual background of the matter is this:
On September 9, 1955, defendant, Fred E. Dexter, was charged in an information filed in the district court of Montgomery county with the violation of the worthless-check statute (G. S. 1949, 21-554). The amount of the check was sufficient so as to constitute a felony (G. S. 1949, 21-555). On September 12, 1955, the case came on for arraignment. Defendant was without counsel, and, accordingly, the court appointed a local attorney to represent him. Defendant was arraigned and a formal plea of not guilty was entered. The case was assigned for trial on October 4, 1955. On September 15, 1955, defendant filed a motion to abate the action under the provisions of G. S. 1949, 21-556. Among other things, this motion alleged that defendant had an account in the bank upon which the check was written thirty days next prior to the time the check was given; that the check was drawn upon the bank without intent to defraud the payee therein, and that defendant was willing and able to pay into court the amount of such check and the costs of the action.
This motion to abate was heard on September 18, 1955. Without detailing the testimony taken at this hearing, it may be said the evidence left no doubt of the fact that defendant was, and for some time had been, an habitual “bad-check writer,” not only in Montgomery county but elsewhere. In fact, at the very time the hearing was had defendant was serving a sentence in the county jail on a misdemeanor charge growing out of the giving of a bad check. At the conclusion of the hearing the court stated:
“The application for abatement will be overruled. The officers have been arresting you, turning you loose and paroling you and putting you in jail for the last five years, and it has not cured you at all.”
On October 1, 1955, defendant again appeared in court with counsel and moved to withdraw his former plea of not guilty. The motion was allowed and the plea of not guilty was withdrawn. Thereupon he, with counsel, entered a plea of guilty to the charge of feloniously issuing a worthless check. Upon inquiry being made, defendant offered no reason or legal cause to show why sentence should not be pronounced. He thereupon was sentenced to confinement in the penitentiary for a term of not less than one year nor more than five years, as provided by statute (G. S. 1949,21-555).
Apparently the trial court had a change of heart — for, on October 6,1955, defendant was granted a bench parole from the sentence theretofore imposed. The order of parole contained the usual conditions and was for a period of two years.
On January 18, 1957, it having been shown to the court that defendant had violated the terms and conditions of his parole, it was ordered that the parole be revoked. A commitment was issued and he was committed to the penitentiary to serve the sentence theretofore imposed.
It appears that after serving some time in the penitentiary defendant was placed on parole by the parole board. While out on parole he committed the offenses of burglary and larceny in Elk county. On July 16, 1959, being represented by counsel, he entered his plea of guilty to those charges in Elk county and was sentenced to confinement in the penitentiary, such sentence to commence upon the expiration of the prior Montgomery county sentence, from which he was at that time on parole. Pursuant to the Elk county conviction and sentence, defendant was returned to the penitentiary to serve the remainder of the Montgomery county sentence, at the expiration of which the Elk county sentence was to commence. (We are advised — and it is not disputed — that as of September 13, 1960, defendant had fully served the Montgomery county sentence and that he is presently confined under the Elk county sentence.)
On August 7, 1962, almost seven years after defendant was sentenced in the Montgomery county district court, defendant filed in that court a motion to vacate the judgment of that court of October 1, 1955, on the ground that it was void. The principal ground of the motion appears to be that the bank upon which the check in question had been drawn had wrongfully appropriated certain “Veteran’s Benefits” checks, payable to defendant, which had been mailed to the bank, and had applied them to reduce an indebtedness of defendant to the bank; that had such not been done his bank account would have been sufficient to cover the check upon which he was prosecuted, and therefore the court erred in overruling his motion to abate the action.
This motion to vacate and set aside the judgment of October 1, 1955, was heard on August 16, 1962, and was overruled.
It is from that order defendant has appealed.
The state has moved to dismiss the appeal on the grounds (1) defendant has completely served the Montgomery county sentence and, therefore, questions concerning it are moot, and (2) the time for raising questions of law or alleged trial errors, which could have been raised by appeal, has long since expired.
Defendant, being represented on appeal by new counsel, contends the judgment of October 1, 1955, overruling his motion to abate the action, was void for the reasons contained in his motion filed on August 7, 1962, heretofore mentioned, and, being void, may be vacated and set aside at any time.
Upon consideration of the matter, we are of the opinion defendant’s contentions are utterly lacking in merit and that this appeal must be dismissed.
Under the provisions of the abatement statute (G. S. 1949, 21-556), which are discussed thoroughly in State v. Morris, 190 Kan. 93, 372 P. 2d 282, the burden was upon defendant to prove to the court that the check in question was given without intent to defraud. He failed to convince the court of this, and, as heretofore stated, the evidence at the hearing was overwhelmingly contrary to his contention that he had no intent to defraud, and clearly established that he was a confirmed habitual “bad-check writer.”
We do not reach the question concerning the alleged wrongful application by the bank of defendant’s funds to reduce his indebtedness to the bank. The plain and simple fact of the matter is, as stated, that defendant failed to convince the court he had no intent to defraud when he gave the check. Furthermore, following the denial of his motion to abate, defendant entered a voluntary plea of guilty. This amounted to a full confession of guilt of every fact alleged in the charge. (State v. Nichols, 167 Kan. 565, 577, 207 P. 2d 469.)
The judgment of October 1, 1955 — sought to be set aside — was not void. The court had jurisdiction of defendant and of the subject matter. Any claimed irregularity or errors in that judgment could have been reviewed by appeal if timely and properly taken. Our criminal code (G. S. 1949, 62-1701) provides that an appeal may be taken by a defendant, as a matter of right, from any judgment against him, and 62-1724 provides that a defendant may appeal at any time within six months from the date of the sentence. Defendant chose not to appeal — and the time for doing so has long since expired. Almost seven years later he filed a motion to vacate the judgment as being void. This appeal, being from the order overruling that motion, is dismissed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal by one of the heirs of a decedent from the judgment of the district court, following an appeal from the probate court, that the accounting of James L. Taylor, was a full, final and complete accounting as the surviving partner of the Douglass Grain Company pursuant to G. S. 1949, 59-1001 et seq.
Neither party requested findings of fact and conclusions of law pursuant to G. S. 1949, 60-2921, and the district court made neither. The accounting evidence presented to the district court consisted primarily of the reports of two accounting firms referred to as the Maddox Report and the Cory Report. The Maddox Report was filed in and approved by the probate court. Basic differences in the two reports pertained to the handling of certain items totaling $11,468, or, as the appellant states, to “differences in accounting techniques.” The district court, after hearing the great volume of evidence and testimony regarding the facts and circumstances surrounding the business of the Douglass Grain Company, its mode of operation and the conduct of the parties, made a general finding that,
“The accounting filed by James L. Taylor as surviving partner in the Probate Court of Butler County, Kansas, the report of examination by Cory, Webster, Lawrence & Greenblatt and the supplements thereto, and the evidence adduced at the trial, constituted a full, final and complete accounting on behalf of James L. Taylor as surviving partner.”
There are approximately 400 pages of the printed abstract. To state the material facts and the contentions of the parties, and to marshall the evidence and state the reasons for the court’s conclusions, would consume, with the utmost condensation, probably thirty pages of the Kansas Reports, and perhaps twice that number. At the end, the court would have done no more than review questions of fact neither novel in kind nor of any interest to anyone except the parties to the appeal. No principle of law of striking interest and no new application of old principles are involved, and when the ultimate facts have been determined, as the district court did, the conclusions of law follow as a matter of course. Under these circumstances, the court does not believe that any useful purpose would be subserved by the preparation of a more detailed opinion.
The appellant’s principal contention is stated in her brief:
“The precise question for the District Court was whether or not the surviving partner, James L. Taylor, had fulfilled his obligations as the surviving partner and had made a full, true and correct accounting.”
The brief is replete with arguments of how the court should have decided the evidence and with charges that its general finding is against the “uncontradicted testimony of the appellant.” That is the principal complaint. Stated conversely, the district court believed the appellee, James L. Taylor, and as stated in appellant’s brief:
“Thus, indirectly the court, without qualification, accepted at its face value the indirect testimony of James L. Taylor which he apparently furnished to the accountants. . . .”
The trial was to the district court, and it is a familiar principle that the weight of the evidence is for the trier of the facts. This court has neither the time nor the jurisdiction to re-try them. All the other features of this controversy are determined upon the ultimate decision of the district court of the factual issue it was called upon to decide. After many days of trial, the district court resolved that issue as a matter of fact, and this court approves the disposition made by the district court of those features. The entire record has been carefully studied and there was substantial evidence to support the district court’s general finding. We approve that finding and the conclusions of law relating to the amount of money due the estate of W. M. Eckel, deceased. Nothing could be accomplished by further litigation of this controversy before this court or the district court. The judgment of the court below was equitable and just, and it is affirmed.
It is so ordered. | [
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Marquardt, J.:
Jasmine Ponds, by and through Claressa Poole, on behalf of Fred Ponds’ legal heirs, appeals the trial court’s grant of summary judgment in favor of Farmers Insurance Company, Inc. (Farmers), and The Hertz Corporation and Hertz Vehicles, L.L.C. (Hertz). We affirm.
In April 2004, Angela Littlejohn rented a car from Hertz at the Wichita airport. Littlejohn, her sister, Stephanie Anukum, and her brother, Fred Ponds, were traveling together to a funeral in Texas. When she rented the vehicle, Littlejohn declined Hertz’ optional liability insurance coverage. Littlejohn’s personal vehicles were insured by Farmers. Anukum was driving the rental car at the time of the accident even though she was not Usted as the driver on the Hertz rental agreement. The only driver listed on the Hertz rental agreement was Littlejohn. Anukum’s personal vehicles were insured by Buckeye State Mutual Insurance Company (Buckeye).
En route to Texas, Anukum was driving in Oklahoma when a tractor-trailer ran the rental car off the road and through the median, where it collided with another car. The tractor-trailer did not stop, and the driver’s identity remains unknown. Fred was killed. Both Farmers and Buckeye paid their policy limits to Fred’s heirs.
Fred was Jasmine Ponds’ father. Fred and Claressa Poole, Jasmine’s mother, were not married. Claressa was insured by American Standard Insurance Company (American Standard). It does not appear that Fred carried automobile insurance. Hertz self-insures its vehicles.
In July 2005, Jasmine filed a petition claiming that Fred was an insured under the insurance policies issued by Farmers, Buckeye, and American Standard. During the pendency of this action, Buckeye was dismissed without prejudice and American Standard was granted summary judgment. They are not parties to this appeal.
In her petition, Jasmine claimed that Hertz was required to provide uninsured motorist (UM) coverage as the vehicle’s owner. Hertz filed a motion for summary judgment claiming that as a self-insurer, it was not required to provide UM coverage, especially where the renter declined optional coverage. Farmers also filed a motion for summary judgment claiming that Fred was not covered under Littlejohn’s automobile insurance policy because he did not meet the definition of an “insured person” under the policy. Farmers claimed that UM coverage was only extended to an insured person or any person occupying an “insured car.” Farmers argued that the rental car was not an “insured car” under the policy language.
The trial court granted Farmers’ and Hertz’ motions for summary judgment. The trial court found that Hertz’ rental contract was not an insurance policy and self-insurers are not required to provide UM coverage. The trial court also found that Farmers’ insurance policy was not ambiguous and Fred could not be considered an “insured” under Litdejohn’s policy. Jasmine appeals the trial court’s rulings.
On appeal, Jasmine acknowledges that in order for Fred to receive UM coverage, he would have to be an “insured person” under Littlejohn’s policy. Jasmine believes Fred became an “insured person” by occupying Littlejohn’s “insured car.” Jasmine believes that the word “replace” as used in the policy provides Fred with UM coverage from Farmers. Jasmine contends that the term “replace” is ambiguous as to duration, meaning he was covered. Jasmine urges this court to find that a reasonable person would read the policy to cover a rental vehicle temporarily used in place of the insured’s automobile.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 888, 107 P.3d 1219 (2005).
The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect deter mined by an appellate court. Whether an instrument is ambiguous is a matter of law, and this court’s review of questions of law is unlimited. State Farm Mut. Auto. Ins. Co. v. Lane, 25 Kan. App. 2d 223, 226, 961 P.2d 64, rev. denied 265 Kan. 886 (1998).
In construing a policy of insurance, a court should consider the instrument as a whole to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured. O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575, 56 P.3d 789 (2002).
If the language in an insurance policy is clear and unambiguous, it must be construed in its plain and ordinary meaning of the terms used. An insurance policy is ambiguous when it contains language of doubtful or conflicting meaning based on a reasonable construction of the policy’s language. An ambiguity does not exist merely because the parties disagree on the interpretation of tire language. To determine whether an insurance contract is ambiguous, the court must not consider what the insurer intends the language to mean. Instead, the court must view the language as to what a reasonably prudent insured would understand the language to mean. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003).
Littlejohn’s insurance contract with Farmers states that it will pay all sums that an “insured person” is entitled to recover as damages from the owner or operator of an uninsured motor vehicle. The definition of “insured person” includes “[a]ny other person while occupying your insured car.” The question for this court is whether the rented vehicle is an “insured car” under the policy.
Farmer’s insurance policy defines “[y]our insured car” as:
“1. The vehicle described in the Declarations of this policy or any private passenger car or utility car with which you replace it. You must advise us within 30 days of any change of car. If your policy term ends more than 30 days after the change, you can advise us any time before the end of that term.
“2. Any additional private passenger car or utility car of which you acquire ownership during the policy period providing that:
“a. You notify us within 30 days of its acquisition, and
“b. As of the date of acquisition, all private passenger and utility cars you own are insured with a member company of the Farmers Insurance Group of Companies.
“3. Any utility trailer:
“a. That you own, or
“b. While attached to your insured car.
“4. Any private passenger car, utility car or utility trailer not owned by you or a family member while being temporarily used as a substitute for any other vehicle described in this definition because of its withdrawal from normal use due to breakdown, repair, servicing, loss or destruction.
“5. Any vehicle leased under a written agreement to any person for a continuous period of at least six months shall be deemed owned by that person.”
The second, third, and fifth clauses do not apply here. It could be argued that the fourth clause would apply, since Littlejohn rented the Hertz vehicle as a temporary “substitute.” However, the record on appeal clearly reflects that Littlejohn’s personal vehicle was not inoperable or in need of repair. Littlejohn rented a more comfortable vehicle for the long drive to Texas.
Thus, the only way that Fred could have been riding in an “insured car” is if the rental vehicle fell under the first clause of the definition and it was deemed a replacement vehicle. Farmers’ policy does not define “replace” or “replacement.”
Generally, in the absence of evidence that the word “replacement” had a meaning peculiar to the insurance field, or that the parties intended a different meaning in the automobile liability policy, the usual and ordinary meaning of the term replacement— to provide or produce a substitute or equivalent in place of a thing — would govern. Continental Ins. Co. v. Entrikin, 9 Kan. App. 2d 384, Syl. ¶ 1, 680 P.2d 913, rev. denied 235 Kan. 1041 (1984). A clear case of replacement occurs when disposition has been made of a vehicle described in the policy and a new vehicle of equivalent use is substituted. 9 Kan. App. 2d at 388.
Appellate courts in other states have reached similar conclusions. The Illinois Court of Appeals held that the term “replacement” does not apply if the “first insured vehicle remains operable and owned by the insured. ‘A vehicle cannot be a “replacement” vehicle under a policy of automobile insurance if the insured retains ownership of the “replaced” vehicle and if it remains operable.’ ’’ American Freedom Ins. Co. v. Smith, 347 Ill. App. 3d 1, 6, 806 N.E.2d 1136 (2004). Generally, a clause providing for coverage of a replacement vehicle assumes that there must be an actual replacement. 7 Am. Jur. 2d, Automobile Insurance § 135, p. 652.
The Farmers policy is not ambiguous when it comes to the word “replace.” The temporary rental car did not serve as a replacement vehicle under the clear meaning of the policy language. Therefore, the trial court did not err by granting Farmers’ motion for summary judgment.
Jasmine contends that this court must determine whether Hertz’ rental agreement, which was signed by Littlejohn, amounts to an automobile liability insurance policy, such that K.S.A. 40-284(a) requires it to provide UM coverage. Jasmine acknowledges that Littlejohn waived the optional insurance coverage when renting the vehicle.
In its motion for summary judgment, Hertz raised the matter of the Kansas Supreme Court’s decision in Farmers Ins. Co. v. Southwestern Bell Tel. Co., 279 Kan. 976, 113 P.3d 258 (2005). In that case, the Kansas Supreme Court held that self-insurers are not required to provide UM coverage. 279 Kan. at 983-84. Given the Farmers decision and our duty to follow Supreme Court precedent, Jasmine’s claim may succeed only if Hertz is not a self-insurer.
The record on appeal contains a certificate of self-insurance issued to Hertz by the Kansas Insurance Department in February 2002. The record on appeal also contains an excess rental liability policy, which covers those individuals who choose to pay for the optional insurance coverage when renting a vehicle from Hertz. This excess liability policy does provide UM coverage.
The rental agreement signed by Littlejohn contains the specific provision:
“IF YOU DO NOT PURCHASE LIABILITY INSURANCE SUPPLEMENT (LIS) (A SUMMARY OF LIS COVERAGE APPEARS BELOW) AT THE COMMENCEMENT OF THE RENTAL AND AN ACCIDENT RESULTS FROM THE USE OF THE CAR, YOUR INSURANCE AND THE INSURANCE OF THE OPERATOR OF THE CAR WILL BE PRIMARY.”
We do not agree with Jasmine’s argument that something in the Hertz rental agreement transforms it into an insurance policy. There is nothing in the language of the rental agreement which would give any reasonable person the idea that insurance coverage was provided by the act of renting a vehicle. Written instruments must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. Farm Bur. Mut. Ins. Co. v. Laudick, 18 Kan. App. 2d 782, 784, 859 P.2d 410, rev. denied 253 Kan. 857 (1993).
The existence of the excess coverage and the terms of that policy belie Jasmine’s claim that the rental agreement, by itself, affords any insurance protection. If that were the case, there would be no reason for Hertz to offer additional insurance coverage, and the excess liability policy would not be necessary. There would be no incentive for renters to pay an additional fee for insurance if the mere act of renting the car provided them with a full range of insurance protection, including UM coverage.
The trial court correctly ruled that Hertz was not required to provide UM coverage to Jasmine and did not err in granting Hertz’ motion for summary judgment.
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellee) Charles Renton brought this action against W. H. and Clara Franzen, defendants (appellants), for the recovery of money under two budding contracts and to have the judgment declared a lien on defendants’ property.
Defendants have appealed from the order of the trial court overruling their demurrer to plaintiff’s petition on the ground it failed to state a cause of action.
The pertinent facts alleged in the petition are as follows:
The defendants were the owners of the described property; that plaintiff was a carpenter; that on the 18th of December, 1960, plaintiff and defendants entered into a contract to remove the north portion of defendants’ residence and rebuild two rooms thereon at an agreed price of $4,600; that in the performance of this contract, in tearing down a portion of the existing residence, it was discovered that defendants’ entire residence was infested with termites; that in January, 1961, defendants employed plaintiff to tear down and demolish the remainder of the residence property and to reconstruct the same; that the plaintiff was to receive for his services in the reconstruction of the residence the sum of $2 per man hour of time required for said reconstruction, plus the actual cost of all material required; that on February 1 defendants paid plaintiff the sum of $1,200 on the contract, and that during that same month orally employed plaintiff to remodel and repair the garage at the agreed contract price of $265; that plaintiff and his employees proceeded to perform the contract and work as above set forth and did complete said contract on June 10; that during the process of said work the defendants inspected the progress of the same; and that defendants took possession of the property as completed by plaintiff on June 10.
Plaintiff further alleged he constructed said dwelling and performed all work in accordance with the contracts alleged and duly performed all the conditions on his part to be performed; that defendants neglected and refused to pay plaintiff for any part of the contract prices of the dwelling and garage with the exception of the $1,200, and that there is now due and owing to the plaintiff from defendants the sum of $9,224.35.
Plaintiff also alleged that a verified itemized statement of the materials and labor required by plaintiff in performing the contracts was attached to the petition and that within four months after the last item of labor and material was performed and furnished the plaintiff filed his verified lien statement containing the contracts of employment heretofore mentioned.
The plaintiff in his prayer asked for judgment against the defendants for the sum of $9,224.35 with interest and that the same be adjudged a lien on the property. Plaintiff also prayed for determination of the amount, validity and priority of the claims of all other defendant lienholders and for other equitable relief.
The appellants’ appeal is based on the theory that the mechanic’s lien statement is defective, not in compliance with the statute (G. S. 1949, 60-1402), and therefore the petition failed to state a cause of action against these defendants.
It may be stated this court received no help from the parties on the real question involved in this appeal, i. e., Does the petition state a cause of action?
At the outset it may be reiterated that when a petition sufficiently alleges a cause of action on any theory a general demurrer thereto cannot be sustained. Moreover, the mere fact that a petition seeks to recover more or different relief from that for which a plaintiff may be entitled does not make the petition demurrable if it otherwise states a cause of action. (Finkenbinder v. Dreese, 188 Kan. 544, 363 P. 2d 465, and cases therein cited; Coolbaugh, Trustee v. Gage, 182 Kan. 145, 149, 319 P. 2d 146.)
Other settled rules of long standing in this jurisdiction are: If a cause of action is stated in plaintiff’s petition, what is prayed for is not always of importance; the prayer of a petition is merely the plaintiff’s idea of relief to which he is entitled, it is not a part of the statement of the cause of action; if a cause of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper relief which may or may not conform in whole or in part to the relief prayed for in the petition; and the allegations of the petition rather than the prayer for relief determine the nature of the action brought. (For authority for the foregoing rules of law see Finkenbinder v. Dreese, supra, p. 546, and cases therein cited.)
In the instant case the petition clearly alleged a cause of action for the recovery of money on three separate contracts; that the contracts had been performed; that tire money was due from the defend ants and they refused to pay; and that plaintiff was entitled to judgment for $9,224.35 with interest thereon. It is elementary that such allegations constitute an action for the recovery of money on contract. The effect of the argument in appellants’ brief is not to demur to the petition on any of the grounds set forth under G. S. 1949, 60-705, but an attempt to strike the mechanic’s lien statement from the petition. In other words, they are only demurring to a part of the consequential relief sought by the plaintiff’s petition and not that it fails to state a cause of action on any theory. We said in Krey v. Schmidt, 170 Kan. 86, 89, 223 P. 2d 1015, that the general rule seems to be that a demurrer will not lie to a single paragraph of a petition on the ground that it does not state facts sufficient to constitute a cause of action if the pleading as a whole states facts sufficient to constitute a cause of action, and a demurrer to a part of a cause of action or part of a petition will only be entertained when the imperfect part is so material that, being eliminated, it leaves the pleading without a good cause of action.
From an examination of the record it is apparent the demurrer filed by the defendants was nothing more than a motion to strike the mechanic’s lien statement. Being treated as such, the motion to strike is addressed to the sound discretion of the court and ordinarily refusal to grant it will not be disturbed unless it clearly appears that the trial court’s discretion has been abused. No such showing is made here. (Krey v. Schmidt, supra, p. 90.) Even striking the mechanic’s lien statement would not determine the action, as the plaintiff has a right to recover money due under the alleged contracts. Assuming, without deciding, that the mechanic’s lien statement is defective, still the plaintiff would be entitled to a money judgment under the allegations of his petition notwithstanding. (Bailey v. Norton, 178 Kan. 104, 111, 283 P. 2d 400.)
This court is not passing upon the sufficiency of the mechanic’s lien statement attached to the petition. In the very nature of its character and importance the question presented is one that should not be determined in the absence of a full disclosure of all pertinent facts. It would have been far better, and a much safer practice, to have joined issues by proper pleadings and to have tried the case on its merits rather than to endeavor to obtain a ruling in the manner followed by defendants. In practical effect, defendants attempt to secure a ruling from this court in advance of trial in the absence of a full disclosure of all material facts. We are in no position to make such binding adjudication. (Kendall v. Elliot, 177 Kan. 630, 281 P. 2d 1088.)
An examination of the record discloses that the trial court did not err in overruling the demurrer to plaintiff’s petition on the ground that it failed to state a cause of action. The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a wrongful death action brought by the surviving spouse and children of Raymond Hendren who lost his life in the crash of an airplane. The airport operated by the defendant, Ken-Mar Airpark, Inc., is alleged to have been the airport where the fatal flight originated. Killed with Hendren was his brother-in-law, Glen St. Vrain, allegedly the pilot and a member of a flying club called Pegasus, which was the owner of the airplane involved.
Appeal has been duly perfected from an order of the trial court sustaining a demurrer to the plaintiffs’ evidence.
The only question presented is whether the plaintiffs’ evidence was sufficient to show any negligence on the part of Ken-Mar Air-park, Inc., and if negligent, that such negligence was the proximate cause of the crash and death of the plaintiffs’ decedent.
At approximately 1:00 o’clock a. m. on January 9, 1960, a Piper airplane belonging to the Pegasus Flying Club and occupied by the plaintiffs’ (appellants’) decedent, Raymond Hendren, and his brother-in-law, Glen St. Vrain, took off from the airport of Ken-Mar Airpark, Inc. (defendant-appellee) heading in a southerly direction. About a quarter of a mile south of the end of the runway the plane crashed into the middle of a field and burned. Both occupants were killed. St. Vrain, supposedly the pilot, was a member of the Pegasus Flying Club to which the airplane belonged. He held only a student pilot’s license, having taken all of his instructions from Carl Buck, an employee of Ken-Mar. He had a maximum of twenty-five hours and thirty-five minutes flying time as shown by his log book. The last instruction St. Vrain had was on September 13, 1959, nearly four months prior to the fatal accident.
The Tri-Pacer airplane involved was purchased from Ken-Mar a year or two prior to the crash. It was hangared at Ken-Mar at the southwest corner, and was never kept at any other airport. The airport is located and operates several miles northeast of the city of Wichita, Kansas, as a private noncontrolled airport, which means there is no tower or method of controlling air or ground traffic of airplanes. The airport has existed as a private corporation operating for profit for approximately seventeen years. It consists of hangars along the west side of the airport and an administration building located in approximately the middle of the row of hangars along the west side. To the east of the hangars and administration building are runways for the take-off and landing of aircraft. Ken-Mar is engaged in the sale of aircraft, the doing of charter flying, airplane rentals, giving flight instruction, renting of hangar space for storing customer-owned aircraft, and the sale of oil and gas for aircraft. The airport is open at all times, day and night. At night the runway lights were turned on, and this was true of the night in question.
The Pegasus Flying Club rented hangar space from Ken-Mar where the airplane was kept while not in use. Gasoline and oil for the plane were procured from Ken-Mar, and various members of the club took flight instruction at Ken-Mar.
Some of the hangars at the airport have doors that open and close and others do not have doors. Most of the hangars which have doors cannot be locked. A board is kept in the administration building where the parties may leave their keys to the hangar doors, if any, and also the keys to the airplanes if they desire. They are not required to keep the keys at Ken-Mar. A teletype machine was maintained in the administration building, which brings in weather data.
At the time of the crash there was a heavy fog in the area. The McConnell Air Force Base official weather report for the night in question indicates that there was generally an unlimited ceiling although for a very short time there were scattered clouds and a ceiling measured at 1,200 feet above surface. This surface weather observation also recites that during this time visibility was five miles. McConnell Air Force Base is located approximately six to seven miles south of the Ken-Mar airport.
The crash was discovered at approximately 9:00 o’clock a. m. on January 9, 1960, and was investigated by officers of the Sedgwick County sheriff’s department and by the Civil Aeronautics Board. This investigation disclosed there was no mechanical or structural failure of the aircraft or in-flight distress prior to its impact with the ground. In addition, the aircraft prior to the flight had received proper care in accordance with Civil Aeronautics regulations.
It is not known who was flying the airplane at the time of the crash as the airplane was equipped with dual controls and could be piloted from either the right or left front seat. It was impossible to determine which occupant of the airplane occupied the right or left seat.
The evidence presented by the plaintiffs is to the effect that the crash of the airplane was caused by human error. Plaintiffs’ expert witness, Charles F. Fisher, an experimental test pilot for the Boeing Company, after qualifying as an expert witness, testified in response to a hypothetical question outlining the facts in evidence, that in his opinion the crash of the airplane was caused when the pilot suffered a disorientation and lack of reference to the horizon and to the lights of the city, which condition is commonly called vertigo, at which time he lost control of the aircraft and inadvertently flew it into the ground. He further testified that the loss of the reference or horizon occurs when there is lack of proficiency of the pilot. Hendren had no pilot training whatever, and if it is assumed that St. Vrain was at the controls, he had only twenty-five and one-half horns flying time. According to the expert, St. Vrain could not possibly have achieved any instrument proficiency. He further testified on cross examination that vertigo could have happened to a reasonably proficient pilot because of the particular conditions existing, unless he had had considerable training in instrument flying. The conditions existing to which he made reference were a heavy fog, darkness and turning away from the city lights.
There are no known witnesses to the fatal plane crash. The evidence disclosed St. Vrain and Hendren were known to have been drinking beer on the evening of January 8, 1960, having arrived at about 9:30 o’clock p. m. on that evening at the Paladin Bar located on South Broadway in the city of Wichita, Kansas. At about midnight St. Vrain and Hendren left the Paladin Bar and were not seen again until their bodies were found the following morning in and near the wreckage of the crashed airplane.
On the night in question a janitor-flight line attendant was the sole Ken-Mar employee on duty. He was doing some custodial clean-up work in the airport administration building on the night of January 8, 1960, and the early morning of January 9, 1960. He recalled seeing what may have been the Pegasus Piper airplane proceed down the airport runway to the south as if making a takeoff early in the morning of January 9, 1960, but he did not at any time see the occupants of the airplane, and he had no knowledge of the identity of the occupants of the airplane. He testified that the field was illuminated with lights for the use of planes taking off and landing, and that only one plane took off after 12:00 o’clock on the night in question. He made no effort to determine who was piloting the airplane, or whether there were any passengers in it. In fact, he did nothing to ascertain the nature of the flight, the identity of the occupants of the plane, the lawfulness of the flight, nor did he take any other affirmative action with respect to the anticipated flight. Moreover, he was instructed by Mr. Isaacs, Ken-Mar’s manager, that he was not to check the identity or qualifications of any persons taking an airplane which was not owned by Ken-Mar.
The manager and president of Ken-Mar, Mr. Isaacs, testified that he had taken his first flying in 1932 and had been quite active in aviation since 1944. In the early part of 1960 there were approximately 100 planes based at Ken-Mar, 25 owned by Ken-Mar and 75 by others. During this period there were approximately four or five flying clubs based at Ken-Mar. He testified that Ken-Mar did not control in any sense any of the flying clubs, their requirements or their use of the field. He had no knowledge of how many members of the Pegasus Club, or of the other flying clubs, were not fully qualified as pilots, nor did he make any effort to determine whether they were qualified, although Ken-Mar furnished flying instruction to the flying clubs and their members. He expressed the opinion that Ken-Mar could not legally determine the qualifications of persons using the field, and did not check qualifications unless a party was going to fly one of Ken-Mar’s airplanes, in which instance it did check his qualifications before the flight.
Mr. Isaacs further testified that the airport does not require any report to be made at the airport office before a plane takes off, nor is it customary to make such report. Ken-Mar has established no procedure for determining who may be taking an airplane from its field. Ken-Mar knows that on occasion an owner gives his key to someone else who pilots the plane. In some instances pilots have obtained their licenses through Ken-Mar, but Mr. Isaacs believes that Ken-Mar has no authority to check pilots to determine if they are properly licensed or not. Mr. Isaacs further testified that if persons desiring to use the field request advice concerning weather conditions, it would give such information to them or read the teletype weather machine for them, and state whether or not the weather was favorable for flying, but nevertheless, it was up to the individual to determine whether or not he would make such trip. Sometimes such persons took the advice and sometimes they did not and went on their way which, so far as Mr. Isaacs was concerned, was entirely up to them.
Edwin T. Tucker, president of Pegasus, Inc., at the time of the fatal crash, testified that the airplane was owned and maintained by Pegasus, Inc., and only hangared at Ken-Mar’s airport on a rental basis. Tucker also testified that this airplane had all instruments necessary for night flying, and that Ken-Mar and the flying club had no arrangements between themselves as to the control of this aii-plane.
This action was instituted more than a year after the accident in question, and at the close of the plaintiffs’ (appellants’) evidence the trial court sustained a demurrer thereto, stating in its opinion that there was no evidence to show any negligence on the part of Ken-Mar, or if it was negligent that such negligence was the proximate cause of the crash and death. Appeal has been duly perfected from such ruling.
It is observed that no evidence was presented by the plaintiffs to show that Ken-Mar or any of its representatives had any knowledge of who may have been in this particular airplane on this night; that no evidence was presented by plaintiffs to show any defects of any nature in or upon Ken-Mar’s airport premises; and that no evidence was presented by plaintiffs to show the manner in which any other comparable private noncontrolled airport was operated.
The parties to this appeal admit that research has failed to disclose any decisions involving subtantially the same or similar facts to those in the instant case, and submit this case as one of first impression.
The appellants rely upon the general principles of negligence law to establish a prima facie case presented by the evidence. They cite Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, quoting portions thereof which state the general principles of negligence law. They also cite Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590. The appellants suggest that circumstances demonstrated by the evidence give rise to additional duties on the part of the airport proprietor in this specific case. Those circumstances which the appellants suggest this court should judicially notice are as follows:
“(1) Flying an airplane requires a degree of skill and training not possessed by the ordinary man.
“(2) Flying an airplane at night requires a greater degree of skill and training than flying in the daytime.
“(3) Flying in fog or under other adverse weather conditions requires a greater degree of skill and training than flying in normal weather.
“(4) The safe use of an airport for take-off or landing depends upon weather conditions and upon the skill and qualifications of the pilot as well as upon the physical facilities of the airport.
“(5) The use of an airport for take-off or landing by a pilot of inadequate skill or training may reasonably be expected to produce damage and injury to the pilot and to others who are so unfortunate as to come into contact with him.
“(6) The airport from which the flight originates is the only place where the qualifications of the pilot can be checked and where the flight can be supervised to prevent injury to others.”
The appellants argue: “The above circumstances, all drawn from common knowledge, by themselves, give rise to a duty on the part of the operator of an airport to ascertain the qualifications of the pilot who desires to make use of the facilities for take-off. They likewise create a duty to use all reasonable measures to prevent the use of the airport for take-off by a pilot not qualified to do' so under the conditions of light and weather existing at the time. They likewise create a duty to warn the pilot and any passenger of the hazard of taking off under the conditions then existing.”
They also argue the evidence demonstrates the existence of other circumstances which give rise to additional duties on the part of the airport proprietor in this specific case. They argue: (1) That Ken-Mar knew, or should have known, that persons lacking qualification to fly under all conditions and with passengers had access to and the privilege of using airplanes hangared on the field and particularly the Pegasus plane; (2) that the airport proprietor knew, or should have known, that St. Vrain was not qualified to fly at night or with passengers; (3) that Ken-Mar kept its airport open and kept the runway and field lights on at a time when it knew that the use of the field by inexperienced or unqualified persons was hazardous; and (4) that Ken-Mar management recognized and in fact knew that the use of an airplane at the airport by a person not having sufficient qualification to fly is in fact hazardous.
The appellants argue the above circumstances demonstrate a duty on the part of Ken-Mar in this particular case; first, to ascertain the identity of any person taking the Pegasus plane at any time; and second, to ascertain the qualification of any person taking the Pegasus plane at night and under the conditions existing on the night of January 9,1960.
It is not contended by the appellants that Ken-Mar did anything affirmatively which caused the crash of the airplane and the death of Hendren. It is, however, the appellants’ complaint that Ken-Mar by the most serious type of omission, failed to meet its responsibilities and duties as the proprietor of a business establishment, wherein it possessed a superior knowledge to that of the decedent and to the public in general of the peculiar hazards involved in flying by inexperienced persons under adverse conditions.
The appellee, Ken-Mar, maintains the position that it had no duty, obligation, responsibility or authority to control in any manner the fatal flight in question; that the appellee violated no duty or obligation in failing to warn the appellants’ decedent of a situation in which it had no knowledge or opportunity to so warn; and that the appellee had no physical means available to control the fatal flight or to restrict the appellants’ decedent from making such flight.
There was no evidence presented by the appellants in this case that the appellee knew, or should have known, who was piloting the aircraft on the night in question. Furthermore, assuming that St. Vrain was piloting the plane, there is no evidence that the appellee knew of his pilot qualifications because St. Vrain’s own log book showed his last instruction at the appellee’s airport to have been on September 13, 1959, almost four months prior to the fatal accident. St. Vrain could have taken flying lessons from many other sources and at many other different places after his last instruction at the appellee’s airport.
An important fact in this case is that the airplane in question was owned by Pegasus, Inc., a flying club, of which St. Vrain was a member. The appellee did not own the airplane which crashed.
Cases relied upon by the appellants (Farish v. Canton Flying Services [1952], 214 Miss. 370, 58 So. 2d 915; Weadock v. Eagle Indemnity Co. [La. App. 1943], 15 So. 2d 132; and Clark v. Chrishop [1952], 72 Idaho 340, 241 P. 2d 171) all involve student pilots operating airplanes owned by the flying school. In each case the defendant had actual knowledge of the contemplated flights and of the identity of the pilots.
In Farish v. Canton Flying Services, supra, the relation between the airplane company and the pilot was that of teacher and student in the flying of airplanes, and it was held to be the duty of the company to exercise due care that the plane furnished was reasonably fit for the purpose or capable of the use known and intended, and that the student should be sufficiently instructed in the performance of his task in flying the particular plane. The degree of care was said to be the same in each case. Whether the plane in which the student pilot lost his life was supplied with sufficient gasoline for the flight; whether the student had been sufficiently instructed in the use of the particular plane; and whether the failure, if such, in either case, proximately caused or contributed to the death, were held to be issues for the determination of the jury.
In Clark v. Chrishop, supra, the action was against a flying school for the death of a student, qualified to fly solo but not qualified to be licensed as a private pilot. The student took off on a flight in a plane belonging to the school at a time when no employees of the school were present at the field to supervise the take-off. A former student of the school holding a private pilot’s license was a passenger in the plane. The plane crashed and it was held the evidence was insufficient to show any negligence on the part of the school which was the proximate cause of the accident, or that it had any causal connection therewith.
In Weadock v. Eagle Indemnity Co., supra, the flying school instructor directed the flight trainee, who had had 14/2 hours of flying experience, of which 3/2 hours or seven flights represented solo flying, to make a routine flight, and it was held the trainee could assume that conditions were favorable for such a flight with respect to the school operator’s liability for injuries resulting from a midair collision with an airplane operated by a competing school’s student, who was performing dangerous training maneuvers. The court held knowledge that the student had taken off and the nature of his flight was imputed to the trainee’s instructor who, by the exercise of ordinary care, could have acquired such knowledge.
These cases do not apply to the facts here presented where the appellee furnished only hangar space for the airplane in question on a rental basis for the flying club. This was a contractual relationship whereby Ken-Mar leased hangar space to the Pegasus Flying Club in much the same manner as Ken-Mar leased hangar or field tie-down space to many other owners of private airplanes.
The president of Pegasus testified that at the time of the crash there were no arrangements between the club and the appellee as to the control of this airplane. He further testified that at the airport’s administration building there was a keyboard upon which the flying club kept a key available for the benefit of all members, so that the key was available at all times. This keyboard was available as a service to the flying club or any other person owning an airplane which was hangared at the airport. On the night of the fatal crash no one came to the airport administration building to obtain the key on the keyboard.
There are few reported cases specifically spelling out the duties of an operator of a noncontrolled private airport. In Weadock v. Eagle Indemnity Co., supra, an airport of this character was discussed. There the court said the functions of a control system at an airport are to assist in directing and controlling incoming and departing traffic for the purpose of preventing or reducing, as far as possible, accidents from collision. Such a system may consist of radios, lights or other visible signals. It was noted that few, if any, airports of the class and grade of that owned by the city of Shreveport, at the time of the accident, were equipped with a control system of any character. The institution of such a system anywhere had not been made compulsory by the C. A. A. in its general regulations, although recommended by it.
It was said the amount and character of traffic at an airport are the controlling factors in determining whether die institution of a control system is imperative as a safety measure. At die time of die accident traffic at the Shreveport airport had not reached the proportions deemed sufficient to require the system.
The court held, all things considered, that it was not negligence on the part of die operator of the airport to conduct die training school in the absence of a control system of some sort. The operator could not have instituted such a system himself without the city’s consent and without the C. A. A.’s approval, and the fact that he did not request the city to do so created against him no inference of negligence. The court went further to say that should it be conceded arguendo, that the operator of the airport should have installed a control system of some character at the airport prior to continuing his school thereat, the student pilot who had full knowledge of this fact, assumed the risks obvious and patent, incident thereto.
In the instant case we think, all things considered, it was not negligence on the part of Ken-Mar to operate its airport in the absence of a control system of some sort.
The evidence is undisputed that Ken-Mar operates an airport for profit. As such it expressly and impliedly invites the public to its premises and to the use of its facilities. The flying club and its members were customers of Ken-Mar and by virtue thereof the relationship between Ken-Mar and the appellants’ decedent was that of a proprietor and a business invitee. (Mills v. City of Wichita, 146 Kan. 772, 73 P. 2d 1054; Plewes, Appellant v. Lancaster [1952], 171 Pa. Superior Ct. 312, 90 A. 2d 279; and Nave v. Hixenbaugh, 180 Kan. 370, 304 P. 2d 482.)
The appellee concedes the operator of an airport is obligated to see that it is safe for aircraft and to give proper warning of any danger of which he knows or ought to know, and he is liable to the owner of a plane for damage sustained by reason of a violation of this duty. The operator of an airport, in particular, has a duty to keep the runway free from obstructions, so far as possible, or to place markers warning pilots of danger. (Beck v. Wings Field, Inc. [D. C. E. D. Pa. 1940], 35 F. Supp. 953; Mills v. Orcas Power & Light Co. [1960], 56 Wn, 2d 807, 355 P. 2d 781; Stevenson v. Reimer [1949], 240 Iowa 652, 35 N. W. 2d 764; and 6 Am. Jur. [Rev. Ed.] Aviation, § 28, p. 19.)
The appellants rely upon Peavey v. City of Miami; Magic City Airways, Inc., v. City of Miami [1941], 146 Fla. 629, 1 So. 2d 614, for the proposition that the operator of an airport must, when the conditions are unsafe, prevent the use of the facilities or at least give warning that the flight is unsafe. A study of the case does not reveal that its holding is as broad as the foregoing statement.
There the pilot and owner of an airplane brought an action against a municipality for injuries and damages received when his airplane collided with an unlighted road roller while landing, at a municipal airport which was being improved with the pilot’s knowledge. It was held the evidence justified judgments for the municipality on the ground that there was no showing the municipality had failed to exercise that degree of care required by law in the operation of an airport. The court held in the absence of statutes covering operation and management of airplanes at the time and place of accident, specifically applicable to the issue of negligence in the operation of an airport, the ordinary rules of negligence and due care obtain, and the common law rule that every person must use ordinary care not to injure another applies.
The hangaring of the particular airplane in question by Ken-Mar involves the legal principal of bailment. The cases are clear that the act of Ken-Mar in furnishing hangar space for the Pegasus airplane upon its premises created a bailor-bailee relationship between those parties. (Ogden v. Transcontinental Airport [1931], 39 Ohio App. 301, 177 N. E. 536.) The relationship of bailment was determined to exist under Kansas law in Baruch v. Beech Aircraft Corporation [U. S. C. A. 10th Cir. 1949], 175 F. 2d 1.
The Baruch case has a bearing on the facts in the instant case. There the plaintiff, Baruch, had purchased an airplane from the defendant, Beech Aircraft Corporation, at Wichita, Kansas. The pilot of the plaintiff came to Wichita with written authority to pick up the newly purchased airplane. Beech made delivery of the plane and prior to the pilot’s delivery of the airplane to the plaintiff, the airplane was retained in a Beech hangar with Beech serving as gratuitous bailee. The plaintiff’s pilot, prior to take-off, became noticeably intoxicated and representatives of Beech Aircraft attempted to discourage the pilot from flying the airplane in an intoxicated condition. The pilot refused to be restrained and upon take-off the plane crashed, killing the pilot and destroying the airplane. Action was subsequently brought by the plaintiff to recover the value of the destroyed airplane from Beech. The judgment in favor of Beech Aircraft Corporation was affirmed on appeal. In affirming the decision of the lower court, the Circuit Court said:
“The trial court properly treated the relationship between Baruch and Beech as bailor and bailee, which required the surrender of the possession of the plane upon Baruch’s agent’s demand, and the use of its airport to take it off. The court specifically absolved Beech of any act of omission or commission, or indifference, amounting to a willingness to injure Baruch’s property. . . .” (p. 3.)
The Kansas Supreme Court has generally recognized the duty of a bailee to redeliver property upon the demand of the bailor. (Strange v. Price Auto & Service Co., 169 Kan. 98, 218 P. 2d 208.)
St. Vrain, as a member of the Pegasus Flying Club, was an owner of the airplane in question. As such Ken-Mar, even if it had full knowledge of the contemplated flight by St. Vrain and the appellants’ decedent prior to take-off, would have had a duty as bailee to surrender possession of the plane upon demand and to allow the use of its airport for the take-off.
Another case discussing the liability of an airport operator is Atcheson v. Braniff International Airways [Mo. 1959] 327 S. W. 2d 112. This was an action by a widow against the city of Kansas City, Missouri, and Braniff International Airways for the wrongful death of her husband who was struck by a propeller of an airplane when he ran out on the ramp in an apparent attempt to stop the takeoff. The Missouri court said in Syllabus ¶ 8:
“To constitute actionable negligence, there must be a duty which defendant is under to protect plaintiff from injury, a failure to perform that duty, and injury to plaintiff resulting from that failure.”
The appellants have gone into great detail in attempting to set forth circumstances which would impose upon the appellee certain duties. The circumstances referred to by the appellants all contain the word “knew” and are based upon the alleged knowledge of the appellee. If some evidence had been produced at the trial to the effect that unqualified persons were flying from the airport in question at night, or that unqualified persons were flying with passengers when they were unauthorized to do so, or that St. Vrain had a prior course of conduct which indicated violations of the Civil Aeronautics regulations, the case might be different, but such is not the fact. The appellants’ case must be based upon evidence, and the appellants cannot be allowed to impose a theoretical duty upon the appellee when there is no evidence present to support that position.
In this respect it is important to note that the appellants do not tell the court how the appellee is to carry out the duty which they seek to impose — the duty to ascertain the identity of any person taking the Pegasus plane at any time; and the duty to ascertain the qualifications of any person taking the Pegasus plane at night and under the conditions existing on this particular night. The appellants also fail to tell the court how the appellee should have warned a passenger of St. Vrain of the pilot’s lack of qualifications. It should be pointed out that the appellee in no way disputes the fact that in making this flight, the Civil Aeronautics regulations were violated in several particulars. Nonetheless, the appellants’ witness, Lowell Lehn, the janitor-flight attendant, upon direct examination testified as follows:
“Q. What effort did you make to determine who was in the plane?
“A. There wasn’t anything I could do. The airplane taxied to the end of the runway before I could do anything. It was moving at the time I seen it.”
In Mathis v. Atlantic Aircraft [1958], 216 Md. 262, 140 A. 2d 156, a business invitee upon the airport premises was struck by the rotating propeller of an airplane as it was taxiing upon the paved apron area at the airport. The action was brought for the personal injuries sustained against the operator of that particular portion of the airport, who was in the business of storing, maintaining, selling and renting airplanes much in the same manner as is the appellee in the instant case. There the court held that where the proprietor has reason to suspect from past experience that a third party is likely to be negligent, the proprietor will be liable for injuries resulting from such negligence; but where the proprietor had no indication that a third party was likely to cause harm, there would be no liability. The court also held that the airport operator was not obligated to anticipate that the pilot of an airplane would fail to make the “zigzag” movements necessary for proper forward observation in taxiing an airplane, and accordingly, the operator could not be held liable for injuries sustained by an appellee who was struck by the propeller of the airplane as it was being taxied on the apron area.
The Kansas Supreme Court has held that the proprietor of a trade or business is not an absolute insurer of the safety of its customers. (Steinmeyer v. McPherson, 171 Kan. 275, 232 P. 2d 236.)
Upon all of the facts and circumstances presented by the instant case, it is apparent the appellants seek to have a rule of law estab fished with respect to the operation of private non-controlled airports which will impose an absolute liability, and, in effect, make the operator an absolute insurer of the safety of persons using its airport.
The evidence in the case leaves much to speculation and conjecture, and we hasten to add that all avenues have not been explored or discussed in this opinion, not the least of which is the question of the contributory negligence of the appellants’ decedent, Hendren. (See, Adair, Adm’x v. Valley Flying Service [1952], 196 Or. 479, 250 P. 2d 104, where the facts are strangely similar to those in the case at bar.)
The appellants rely upon G. S. 1949, 3-204, which reads as follows:
“The certificate of license required shall be kept in the personal possession of the licensee when he is operating aircraft within this state, and must be presented for inspection upon the demand of any passenger or any peace officer of this state, or any official manager or person in charge of any airport or landing field in this state upon which he shall land.’’
The appellants argue this statute shows a legislative recognition that the only way to regulate persons who are taking airplanes into the air, and thereby possibly endangering others, is at the place where the airplanes take off — the airport. The appellants contend that as a matter of fact the right granted by this section of the statute to the manager or operator of an airport or landing field to check the qualifications of a pilot carries with it a concomitant duty to do so. The appellants argue this provision in essence requires the presence of a responsible person in charge of an airport at all times where the public is permitted the use of the airport, and that the statute further requires such person in charge to exercise reasonable care to determine the qualifications of pilots using die airport to make intended flights.
This point is not well taken. To attempt to impose such duty upon an airport operator is to fail to read the statute as the legislature has written it. The statute says the certificate of license must be carried by the operator of the aircraft and must be presented “upon the demand” of a certain group of persons. There is no requirement that it be shown voluntarily. It must be shown only when demanded. It must be shown to any passenger, peace officer, official manager or person in charge of any airport or landing field in this state upon demand. The statute does not require the operator of an airport to check the certificate of license of any pilot at any time. Instead, the statute gives proper parties authority to inspect the certificate of license of an aircraft operator under certain conditions if they desire to do so.
The appellants also note G. S. 1949, 3-202 and 3-203, which provide for the punishment of any person who navigates an aircraft within the state without a pilot’s license issued by the Department of Commerce, and punishment for any person who navigates an aircraft within this state in violation of Air Commerce regulations. G. S. 1949, 3-205, makes such violations a misdemeanor and provides for a fine in a sum not exceeding $500 or confinement in the county jail not exceeding six months, or both such fine and imprisonment. In this case the pilot was taking with him a passenger in clear violation of the Civil Aeronautics regulations.
Ken-Mar was not bound to anticipate the criminal act of St. Vrain; and its failure to do so was not negligence. (See, 65 C. J. S., Negligence, § 111, at pp. 699, 700.)
For the reasons heretofore stated we hold the evidence of the appellants fails to establish a prima facie case against the appellee, Ken-Mar, on the ground of negligence. In short, the evidence fails to establish negligence on the part of Ken-Mar.
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The opinion of the court was delivered by
Robb, J.:
This action originated as a probate proceedings to construe decedent’s last will and testament. The probate court held a class gift was created by the fourth paragraph of decedent’s will and that Delbert Shields’ the surviving beneficiary, took all right, title, and interest in the real estate described in paragraph four. An appeal was taken therefrom to the district court by the appellees here, and that court determined that the fourth paragraph of decedent’s will did not create a class gift in favor of the bene ficiaries named therein with the result that only one third of the net proceeds from the sale of the specified property passed to Delbert. This appeal by Delbert is from the trial court’s findings, orders, rulings, judgments, and decisions, as well as its order overruling Delbert’s motion for new trial.
Decedent, a widow, died on February 28, 1960, leaving her last will and testament executed on January 27, 1955. The will, which was admitted to probate on April 5,1960, in pertinent part provides:
“Third: I hereby give and devise unto Wylie Gaddie and Rosa Gaddie, his wife, the house in which I now live and own located at 1020 Stewart Street, Winfield, Kansas, to be theirs absolutely.
“Fourth: I hereby authorize my executor to sell the property described as the Northwest Quarter of Section 22, Township 33, Range 3 East, Cowley County, Kansas, and to give all the net proceeds of said sale to Delbert Shields, Wylie Gaddie and Erma McCartney, share and share alike.
“Fifth: I hereby give and devise unto Bernard McCartney and Erma McCartney, his wife, the property described as the Northwest Quarter of Section 23, Township 33, Range 3 East, Cowley County, Kansas, to be theirs absolutely.
“Eighth: In making the above bequests, I am not unmindful of the fact that I have other relatives, including nieces and nephews, to whom I have not made bequests but due to the fact that I feel much closer to the people to whom I have given the above bequests than to these other parties, I have not seen fit to leave my property to them.
“Tenth: Recognizing that my estate will probably be subject to both state and federal inheritance taxes, I hereby request and authorize my executor to pay all state and federal inheritance taxes chargeable against any specific devisee herein out of the residue to my estate, irrespective of the fact that the law of the State of Kansas makes the tax above any exemption to which the donee may be entitled payable by the specific donee.
“Eleventh: I hereby give, devise and bequeath the remainder of my property, subject to the bequests hereinabove made and the costs of administration and the costs required to be paid by the executor for taxes on certain specific bequests and other expenses involved in the estate to St. Mary’s Hospital located in Winfield, Kansas, with the provision, however, that in accepting this gift from my estate that as a condition of said gift that said money derived from said estate shall be used in the hospital located at Win-field, Kansas, either for the improvement of the hospital building or for the purchase or improvement of hospital equipment which is to be used in their hospital at Winfield, Kansas.”
Wylie Gaddie and Erma McCartney (who were named in paragraph four, above quoted, along with Delbert) predeceased decedent and this fact gives rise to our first major question on appellate review — do the terms of the fourth paragraph create a class gift to the named individuals?
At the outset the parties stipulated, in substance, that all of the beneficiaries under decedent’s will were strangers to her blood and Delbert, Wylie, and Erma were not blood relatives to one another. Blanche Carson, niece, and Earl Philo Kent and Marvin Kent, grandnephews, were decedent’s sole and only heirs at law. On January 19, 1959, Wylie died leaving Rosa Gaddie, his widow, as his only heir. On May 21, 1959, Erma died leaving Bernard McCartney, her husband, and her three daughters, Patricia Jean Ryan, Mary Suzanne Corbett, and Sandra Lee Ann McCartney. St. Mary’s Hospital, Winfield, Kansas, residuary beneficiary under the will, was no longer in operation and was wholly precluded from taking anything under the will. All proceeds received by the executor were to be used for the payment of claims, for estate, inheritance and other taxes, and for administrative fees, costs, and expenses regardless of the source of such funds.
We should here pause to explain that Delbert contends he did not agree to the last portion of the above stipulations pertaining to the manner in which proceeds received by the executor were to be used. From the record and in his brief before us he did admit the following, which was in substance dictated into the record by the executor’s counsel, to the effect that all proceeds from the real and personal property in decedent’s estate and that received by the executor during administration should be used to pay estate and inheritance taxes, claims, administrative fees, and expenses and “That is the income off these farms and income from any other property she has” and including also “oil found in the land.” The income was to be placed in a “common pot” in order to have enough money to pay all of the expenses to close the estate and thus each devisee would contribute to the “common pot.”
These undisputed and agreed stipulations were adopted by the trial court as findings. In addition, it found that decedent’s heirs would take any residue as follows: Blanche Carson, an undivided one-half interest, and the two Kent grandnephews an undivided one-fourth interest each. One bequest of $500 with which we are not herein concerned passed thereunder. A class gift was not created by the fourth paragraph thereof in consideration of the entire will, the nature of the property, “the relationship between the three beneficiaries named therein”, and their relationship to decedent. One third of the net proceeds from the sale of the property passed to Delbert, but there was a controversy as to the remaining two-thirds of such net proceeds.
Thereafter the heirs of Wylie and Erma, along with the heirs of decedent, announced that a settlement had been reached with respect to the disposition and distribution of property and money described in paragraphs three, four, and five of the will. Rosa Gaddie was to receive absolutely the property conveyed in the third paragraph of the will, Bernard McCartney, Erma’s widower, was to receive absolutely the property set out in the fifth paragraph of the will, which would ultimately be received by Bernard’s heirs (Mary Suzanne Corbett, Patricia Jean Ryan, and Sandra Lee Ann McCartney) share and share alike. Finally, the net proceeds from the two-thirds’ interest in the property involved in the fourth paragraph would pass to Wylie’s widow, Rosa Gaddie, to the three McCartney heirs, and to the three heirs of decedent according to the agreement of the parties relating thereto.
In its judgment the trial court set aside gifts according to the findings of fact. The real estate in paragraph four was ordered sold forthwith, subject to the deduction of all costs of sale, including abstract expenses, inheritance or other taxes, costs of administration, revenue stamps, and thereafter one third of the net proceeds therefrom were to be paid to Delbert and the remaining two-thirds of the net proceeds were to be paid to Rosa, the McCartney heirs, and the decedent’s heirs according to their agreement.
Delbert’s main contention in this appeal is that the fourth paragraph of decedent’s will constituted a class gift so that the only result the trial court could have lawfully reached was that since the other two members of the class predeceased the decedent, Delbert was entitled to the entire net proceeds from the property involved.
We think the will is clear and no land was ever intended to pass to the beneficiaries under the fourth paragraph. Only the net proceeds from the sale of the land were ever intended by the decedent to pass to the beneficiaries. Thus we are squarely presented with the proposition of whether paragraph four considered along with all the other provisions of the will, principally paragraph three, five, and eight, establishes a class gift under our law. It cannot be disputed that a decedent who leaves a will should not be considered to have died intestate as to any of the assets of the estate if it can be avoided. (5 Hatcher’s Kansas Digest, rev. ed., Wills, §106, p. 495, 1962 Cum. Supp., §106, p. 100; 9 West’s Kansas Digest, part 2, Wills, §§ 448, 449, p. 310, 311, 1962 Cum. P.P., §§ 448, 449, pp. 72, 73.) Both parties rely on the fact that decedent survived some of the beneficiaries from her bounty, and it should be especially noted that the residuary legatee, St. Mary’s Hospital in Winfield, had been closed and was no longer functioning as a hospital, but decedent did not see fit to make any changes in her will. We can see little or no comfort to either side in this argument and we shall not indulge in a long discussion of the proposition.
Delbert contends that decedent, by her will and more particularly by paragraph eight thereof, disinherited her niece and grandnephews. The appropriate rule to be applied to this situation is that other things being equal, there is a presumption against any intention on the part of a testator to disinherit his legal heirs who are favored by the policy vf the law and may not be disinherited by mere conjecture. When a testator intends to disinherit those who would take under the statutes of descent he must indicate that intention clearly by plain words, express devise to others, or necessary implication. By “necessary” implication is meant one which results from so strong a probability as to the testator’s meaning that an intent contrary to that imputed cannot be supposed. The presumption against disinheritance is recognized especially in the absence of unfriendly relations existing between the testator and his decedents. (57 Am. Jur., Wills, § 1160, pp. 757, 758; and see, also, 5 Hatcher’s Kansas Digest, rev. ed., Wills, § 109, p. 496; 9 West’s Kansas Digest, part 2, Wills, § 453, p. 311,1962 Cum. P.P., § 452, p. 73.)
In view of the foregoing authorities, which include others cited by Delbert, we cannot agree that paragraph eight made more conclusive Delbert’s contention that a class gift was intended in paragraph four. The above authorities tend to place Kansas in a group more favorable to the rule preventing intestacy than to the rule that a testator must be very precise and meticulous in the provisions of his will before his heirs will be considered to be disinherited. In construing paragraphs four and eight together it appears the only words which could possibly be interpreted to create a class gift were that decedent stated she felt “much closer” to Wylie, Erma, and Delbert. No authority has been cited to us, and we have found none, in which it is held that a class may consist of friends or neighbors. We shall not undertake to delineate all the instances where a class could be present. We are not inclined to' extend the meaning of members of a class to a group which a testator may consider as friends, neighbors, or even those to whom he may feel “much closer.” We conclude no class gift was created in decedent’s will and the trial court was correct in so holding.
Another question raised is in regard to the manner in which expenses of the estate are to be paid under a stipulation which was dictated into the record by the executor’s counsel. The trial court could not correctly adopt the stipulations in full as its findings of fact and then ignore that portion relating to the so-called “common pot” from which all expenses of the estate are to be paid. The trial court’s judgment on that feature of the case should be modified to show that the costs enumerated were to be paid out of all proceeds of the estate coming into the hands of the executor, and not merely out of the proceeds from the sale of the particular real property involved in paragraph four.
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The opinion of the court was delivered by
Wertz, J.:
This was a workmen’s compensation case. We shall hereinafter refer to appellant Frankie Howerton as claimant and appellees Goodyear Tire and Rubber Company and its insurance carrier, Aetna Casualty & Surety Company, as respondent.
Claimant was awarded compensation by way of medical treatment based upon the findings that claimant suffered personal injury by accident which arose out of and in the course of his employment, and that as a result of said accident claimant suffered a minor aggravation of a pre-existing condition.
The pertinent facts can be summarized as follows: On Friday, October 6, 1961, the claimant was working at his regular job for Goodyear Tire and Rubber Company. He was handling burlap sacks of rubber tubes that weighed approximately 150 pounds apiece. When the claimant was lifting one of these sacks he had a sharp pain “like a streak of hot lightning” in his neck through his shoulders. The claimant continued working that day, the next day, and the following week until Wednesday, October 11, 1961, when he blacked out on the job. The claimant was taken to the plant nurse who examined him and sent him to the company doctor, Dr. John Cavanaugh. Dr. Cavanaugh examined the claimant, had X-rays taken, furnished claimant with a neck brace and referred him to Dr. Roy Brown, an osteopathic physician. The claimant was released by Dr. Brown to go back to light work on the following Monday, October 16, and to resume regular work on October 25, 1961. The claimant did return to work and received his regular wage. The claimant performed his work while wearing his neck brace until December 26, when he changed jobs to lighter work in banberry clean-up, which new job entailed a certain amount of heavy work. At the time of the hearing before the examiner the claimant was still working on banberry clean-up.
The medical testimony before the examiner concerning the claimant’s disability was conflicting. Dr. Brown, who treated the claimant for about two weeks, testified he released claimant on October 25, 1961, with no disability. Dr. Rex Wright, a chiropractor, testified he gave claimant twenty-three treatments up to December 22, 1961, and that claimant was in need of further treatment at that time. Dr. M. E. Pusitz testified he examined claimant on December 6, 1961, and took X-rays at that time. He felt at the time of the examination claimant had a work disability of about twenty per cent of the body as a whole. Dr. Pusitz recommended further treatment and was of the opinion claimant should not work during the course of the added treatments. Dr. Harry Kroll, an orthopedic surgeon, testified he examined the claimant on January 30, 1962, and from his examination found no evidence of any permanent disability.
On June 27, 1962, the examiner found the claimant had suffered personal injury by accident which arose out of and in the course of the employment. The examiner awarded the claimant compensation for the medical expense incurred to the date of the award. He also entered an award for twenty per cent temporary partial disability for 36.71 weeks to the date of the award, which would be followed by temporary total disability after the award for 378.29 weeks, or until further order of the director, and the examiner directed the respondent and its insurance carrier to furnish claimant the services of Dr. M. E. Pusitz for a period of not to exceed ninety days from the date of the award. Upon review, the director found there was sufficient evidence to justify affirmance of the award. The respondent appealed to the district court.
On review of the record the trial court modified the director’s award and found that on October 6, 1961, claimant suffered personal injury by accident which arose out of and in the course of his employment and as a result of the accident claimant suffered a minor aggravation of a pre-existing condition; that claimant incurred certain medical expenses, which the court allowed. The court further found claimant should have further medical treatment by Dr. Pusitz for a period not to exceed ninety days from the date of the award; and that although claimant suffered a minor aggravation of a previous chronic neck condition, the claimant did not suffer any disability, either temporary or permanent, and that claimant has at all times been able to perform the regular work required by his employment. The trial court ordered respondent to pay the medical bills incurred to the date of the award, to pay for any services rendered by Dr. Pusitz to the claimant for a period of ninety days from the date of the award, and to pay the costs of the proceedings.
From this order claimant appeals and contends (1) there was not sufficient evidence to base the trial court’s finding of no disability, either temporary or permanent, and (2) the. court erred as a matter of law in denying claimant payment of weekly compensation, for inherent in the court’s order allowing compensation by way of medical treatment is a finding of disability, whether it be temporary or permanent.
As to claimant’s first contention, it may be said that whether or not a workman suffered any disability by reason of an accident arising out of and in the course of his employment is a question of fact, and when determined by the district court will not be disturbed by this court where there is substantial evidence to sustain it. In other words, the existence, the extent and the duration of an injured workman’s incapacity is a question of fact for the trial court to determine. (Cody v. Lewis & West Transit Mix, 186 Kan. 437, 443, 351 P. 2d 4; Smith v. Jones, 185 Kan. 505, 507, 508, 345 P. 2d 640; Daugherty v. National Gypsum Co., 182 Kan. 197, 204, 318 P. 2d 1012; Shepherd v. Gas Service Co., 186 Kan. 699, 352 P. 2d 48.)
In view of the foregoing no useful purpose would be gained in narrating the somewhat conflicting evidence in this case. We are satisfied there was sufficient evidence to support the' trial court’s finding that claimant sustained no disability, either temporary or permanent. It is not for us to say what testimony should be given credence and what evidence should be disbelieved. We have neither the duty nor the authority to weigh the evidence, and it is of no consequence that had we been the trier of the facts we might have reached a conclusion with respect to such facts different from that of the trial court.
We adhere to the well-established rule laid down by this court that an employee partially incapacitated by an injury from performing his labor does not lose his right to compensation under the workmen’s compensation act by remaining in the employ of his employer at his former wages. (Shepherd v. Gas Service Co., 186 Kan. 699, 352 P. 2d 48; Beal v. El Dorado Refining Co., 132 Kan. 666, 672, 296 Pac. 723.) Loss of earning power may result from his ineligibility to obtain work as well as from inability to perform procurable work due to the impairment of his physical fitness, and wages paid do not establish ability to earn. (Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012.)
Claimant argues that Shepherd v. Gas Service Co., 186 Kan. 699, 352 P. 2d 48, is controlling in this case. In that case the trial court found claimant met with personal injury by accident but that he suffered no temporary total or permanent partial disability, and made no finding that claimant did not suffer temporary partial disability. However, the trial court ordered respondent to furnish medical and hospital treatment in a sum specified for medical care necessary as a result of claimant’s accidental injury to his back. We held that inherent in the trial court’s judgment was the finding that claimant did suffer temporary partial disability by reason of the accident. In the instant case the court definitely found that claimant did not suffer any disability, either temporary or permanent; therefore, the Shepherd case is not controlling here.
Inasmuch as the trial court’s finding of no disability, either temporary or permanent, is sustained by the record, there is nothing this court can do except affirm the judgment. Respondent and its insurance carrier made no objection to the allowance of compensation by way of medical treatment and did not cross appeal from the allowance of such; therefore, the propriety of that portion of the award is not here for review.
The judgment of the district court is affirmed.
Robb, J., dissents. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court sustaining a motion to enjoin and suppress the taking of the deposition of an adverse party.
The plaintiff, C. P. Miller, filed an action in Montgomery County against the defendants, Lyle Huffman and S. M. LaRue, for negligent injury. The injury is alleged to have occurred while the defendants were engaged in the demolition of a building in the city of Coffeyville.
Defendant Huffman is a resident of Montgomery County and the owner of the building. Defendant LaRue, d/b/a Economy Construction Company, is a resident of Neosho County who was employed by Huffman to supervise the razing of the building.
Huffman did not respond to the service of summons and is in default. LaRue answered and the issues between plaintiff and defendant LaRue were joined by pleadings.
After joinder of issues Miller served notice to take LaRue’s deposition. LaRue filed a motion, objecting to the taking of the deposition, wherein he stated he was only forty-nine years of age, in good health, would be present for trial in Montgomery County, and then asked the court to suppress the taking of the deposition and restrain the attorney for Miller from taking it.
After due notice and hearing, the court entered an order sustaining LaRue’s motion in its entirety. Thereupon Miller perfected the instant appeal.
The first question raised is whether an order restraining or suppressing the taking of a deposition is appealable.
The court has entertained appeals of this type on numerous occasions. (See cases hereinafter cited dealing with depositions.) Although an appeal does not lie from an order granting, vacating, or refusing to vacate a mere restraining order (Cooley v. Shepherd, 170 Kan. 232, 225 P. 2d 75; Smith v. City of Kansas City, 167 Kan. 684, 208 P. 2d 233; Allen v. Glitten, 156 Kan. 550, 134 P. 2d 631; City of Wichita v. Home Cab Co., 151 Kan. 679, 101 P. 2d 219), this court will examine the character and effect of the order, regardless of the term by which it is designated, for the purpose of determining whether the order is tantamount to an injunction.
An order which prevents the taking of a deposition is permanent insofar as the statutory right to take is concerned, although designated as suppressing, restraining, quashing, or enjoining.
This court may reverse, vacate, or modify an order which “grants, vacates, or modifies an injunction” (G. S. 1949, 60-3302) and an appeal will lie from an order granting or refusing a temporary injunction. (Laswell v. Seaton, 107 Kan. 439, 191 Pac. 266; Bumm v. Colvin, 181 Kan. 630, 637, 312 P. 2d 827.)
The next question presented is whether LaRue (hereinafter referred to as appellee), residing in Neosho County, is outside the jurisdiction of the district court of Montgomery County under the provisions of G. S. 1949, 60-2821. So far as here material such section provides:
“In any action now pending or hereafter instituted in any court of competent jurisdiction in this state, any party shall have the right to take the deposition of the adverse party, . . . when such adverse party, . . . is without the jurisdiction of the court or cannot be reached by the process of the trial court; . . (Emphasis supplied.)
Appellant appears to contend he has the absolute right to take the deposition of the adverse party if he is outside the jurisdiction of the trial court even though he may be reached by the process of the court. It would be difficult to find a situation where a party was within the jurisdiction of the trial court and could not be reached by process of the court. LaRue must have been within and subject to the jurisdiction of the court or he would not have responded to the summons. On the other hand, if a party can be reached by the process of the trial, he is subject to its jurisdiction for all practical purposes. Perhaps too much stress should not be placed on the difference in effect of the two phrases used in the statute.
Appellant directs our attention to the constitution and statutes covering the jurisdiction of district courts.
Article III, Section 6 of our Constitution provides:
“The district courts shall have such jurisdiction in their respective districts as may be provided by law.”
The general jurisdiction of district courts is set out in G. S. 1949, 20-301, which states in part:
“There shall be in each county organized for judicial purposes a district court, which shall be a court of record, and shall have general jurisdiction of all matters, both civil and criminal (not otherwise provided by law), . . .”
Additional jurisdiction is provided by specific statutes. See, e. g., G. S. 1949, 60-2502, which reads:
“Where the action is rightly brought in any county, according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants on the plaintiff’s praecipe.”
The fact that a bona fide action was brought against co-defendant Huffman and service obtained in Montgomery County must be conceded.
Appellee LaRue was in the jurisdiction of the Montgomery County district court for the purpose of service of process (60-2502) and could be reached by subpoena. (G. S. 1949, 60-2810.)
It must be understood that the right to take the deposition of an adverse party does not depend alone on the provisions of the Laws of 1909, Chapter 113, Section 1, now G. S. 1949, 60-2821.
The right to take the deposition of an adverse party was recognized before this section (60-2821) was enacted in 1909. At first blush it appears difficult to determine the intent and purpose of the legislature in enacting 60-2821, particularly in view of the existing provisions of the statute to which we shall presently refer. Even so determination of its intent and purpose will aid in determining when the section is applicable.
The right to take the deposition of an adverse party was granted under the provisions of G. S. 1949, 60-2803, which has been a part of the civil code since 1868. Those provisions read:
“Any party to a civil action or proceeding may compel any adverse party or person for whose benefit such action or proceeding is instituted, prosecuted or defended, at the trial or by deposition, to testify as a witness in the same manner and subject to the same rules as other witnesses.”
See, also, G. S. 1949, 60-2819, which provides:
“The deposition of any witness may be used only in the following cases:
“First. When the witness does not reside in the county where the action or proceeding is pending, or is set for trial by change of venue, or is absent therefrom.
“Second. When from age, infirmity or imprisonment the witness is unable to attend court, or is dead.
“Third. When the testimony is required upon a motion, or in any other case where the oral testimony of the witness is not required.”
Under our decisions the statutory enactments just quoted were given a rather restricted construction when applied to adverse parties and the trial court was given almost unlimited discretion in restraining the taking of depositions. The first case to consider the matter made a very liberal approach. In the case of In re Abeles, 12 Kan. [2nd Ed.] *451, the court said:
“. . . That the witness whose testimony is sought is the adverse party does not affect the question, or, by section 321 [now G. S. 1949, 60-2803.] of the Civil Code, either party can compel the adverse party 'at the trial, or by deposition, to testify as a witness, in the same manner, and subject to the same rules, as other witnesses.’ By section 346 [now G. S. 1949, 60-2819.] of the Code the deposition of a witness may be used when the witness is absent from the county at the time of trial, or when from age, infirmity, or imprisonment, the witness is unable to attend court, or is dead. Giving the right to use a deposition under the contingencies named gives the right to prepare for those contingencies. It cannot, of course, have been contemplated that the contingency must exist before the deposition can be taken; for in one of the cases at least the happening of the contingency would destroy the power to obtain the testimony. If the deposition of a witness can be used in case of his death, the party must have a light to take that deposition beforehand. So of the other contingencies named in the statute.
“Now the giving of testimony, whether on the trial or by deposition, is not a privilege of the witness, but a right of the party. He need not solicit; he can compel. It seems to us, therefore, that under our statutes a witness may be compelled to give his deposition, although he reside in the county where the action is pending. ... It is also said that this permits one to go on a ‘fishing expedition to ascertain his adversary’s testimony. This is an equal right of both parties, and justice will not be apt to suffer if each party knows fully beforehand his adversary’s testimony.” (pp. *452, *453.)
We have quoted at length from the foregoing case as what is there said and held throws much light on what is to follow.
In In re Davis, Petitioner, 38 Kan. 408,16 Pac. 790, the court held:
“The taking of the deposition of a party in a pending case, merely to fish out in advance what his testimony will be, and to annoy and oppress him, and not for the purpose of using the same as evidence, is an abuse of judicial authority and process; and a party committed by a notary public for refusing to give his deposition in such a case, will be released on habeas corpus.” (Syl.)
Thus the court started a departure from the liberal rule announced in the Abeles case.
The case of In re Cubberly, Petitioner, 39 Kan. 291, 18 Pac. 173, further restricted the rule. There we held:
“The taking of the deposition of a party in a pending case, merely to ascertain in advance what his testimony will be, and not for the purpose of using the same as evidence, is an abuse of judicial authority and process; and a party committed for refusing to give his deposition in such a case, will be released on habeas corpus.” (Syl.).
And in the opinion said:
“. . . If he so attends, his depositen cannot be used. Counsel proposing to take his deposition insist that they are acting in good faith, and desire to take his deposition to be used upon the trial, if he be absent at the time. There is no showing that the petitioner is going away, or that there is any probability of his being absent at the trial. Counsel qualify the statement about the use of the deposition by adding: ‘If the petitioner tells the truth.’ They also say that they need his deposition so as to be informed as to what other depositions it is necessary to take. Taking all the evidence together, it does not seem to us that the deposition of the petitioner is to be taken to be read in evidence upon the trial. It seems that the real purpose of taking the deposition is merely to fish out in advance what the testimony will be.” (p. 292).
In In re Merkle, Petitioner, 40 Kan. 27, 19 Pac. 401, the restrictions on the right to take the deposition of an adverse party were made definite and distinguished from that of a disinterested witness. The opinion states:
“There is a great distinction to be noticed in cases where the depositions of parties and those of witnesses are to be taken. Parties have but recently been made competent witnesses; their interest in the litigation is generally a safe assurance that they will be present at the trial, and the courts would be more particular in considering all such questions concerning them than they would be of a witness. Of course, when it- is perfectly apparent that the rights of witnesses are being trifled with, and the process of the court abused, they are entitled to the full measure of protection. But as a rule a party has a right to take the deposition of witnesses so as to provide against all contingencies as a mere matter of precaution; but before a party shall be subjected to such process, there must be some reasonable ground upon which to predicate a belief that there is an actual necessity for it. . . .” (p. 30.)
The preceding review presents the condition of the law when the legislature revised the civil code to some extent in 1909. It no doubt determined that it would leave the provisions now found in G. S. 1949, 60-2803, and construed by this court, but decided it would give an absolute right to take the deposition of an adverse party when the adverse party “is without the jurisdiction of the court or cannot be reached by the process of the trial court.” It will be noted, this section (60-2821), as heretofore quoted, provides that the party “shall have the right.” It does not use the word “may.”
In Long v. Prairie Oil 6- Gas Co., 135 Kan. 440, 10 P. 2d 894, the court construed G. S. 1949, 60-2803 and 60-2821, together and failed to recognize that any distinction had been made by the legislature. See Paragraph 1 of the syllabus in that case where it is held:
“Our statutes (R. S. 60-2803, 60-2821 and 60-2822) authorize a party to a civil action to take the deposition of the opposing party, but in doing so he must be proceeding in good faith for the purpose of using the testimony at the trial, and there must be some reasonable ground for believing that an actual necessity exists for doing so.”
In passing it should be stated the above holding in the Long case, and similar holding in other cases, were criticized, if not actually disapproved, in Rodriguez v. Cascade Laundry Co., 185 Kan. 766, 768-770 347 P. 2d 455.
In Rodriguez v. Cascade Laundry Co., supra, the court recognized the intention of the legislature when it enacted G. S. 1949, 60-2821 as distinguished from G. S. 1949, 60-2803. It also carefully considered its previous decisions and held:
“In an action instituted on behalf of a miner against the Cascade Laundry Company, a Missouri corporation, and Arthur Borden, a resident of Kansas City, Missouri, to recover damages for personal injuries alleged to have been sustained as the result of Borden’s negligent operation of a company laundry truck on a public street in Kansas City, Kansas, issues were joined by the parties. After service by plaintiff of a notice to take the deposition of Borden the defendants filed a motion for an order quashing the notice. This motion was sustained and plaintiff was enjoined from taking the deposition. On appeal from the ruling and judgment the record is examined and it is held the provisions of Laws of 1909, Chapter 113, now G. S. 1949, 60-2821 and 60-2822, give any party to an action the unqualified right to take the deposition of the adverse party when such adverse party is without the jurisdiction of the court or cannot be reached by the process of the trial court; and that where — as here — it appears the adverse party was without the jurisdiction of the trial court and not amenable to its process, the court erred in sustaining the motion to quash the notice and in enjoining the plaintiff from taking the deposition.” (Syl. 1.)
Rased on what has been heretofore stated and held we conclude that a party has an absolute right to take the deposition of an adverse party, if such party is “without the jurisdiction of the court or cannot be reached by the process of the trial court.” (G. S. 1949, 60-2821.) A party may also take the deposition of an adverse party when the adverse party “does not reside in the county where the action is pending” (G. S. 1949, 60-2819 and 60-2803), but the taking of such deposition is subject to the discretion of the trial court after considering such matters as intent to use the deposition at the trial, necessity, intention of the adverse party to attend the trial, harassment, and other related matters.
As previously indicated appellee states in his motion to restrain the taking of the deposition:
“. . . The defendant, S. M. LaRue, d/b/a Economy Construction Company, will be present for the trial of this case. Said defendant is only forty-nine (49) years of age and has lived at Chanute, Kansas for many years and has no intention of leaving Chanute, Kansas, and is not afflicted with any diseases or ailments which would cut short.his normal life span. . .
Under all the confronting facts and circumstances we are forced to conclude that the adverse party was not outside the jurisdiction of the trial court and could be reached by .process of that tribunal; hence the appellant could not take the deposition of his adverse party as a matter of statutory right under the provisions of G. S. 1949, 60-2821.
We further conclude that the right to táke the deposition of the adverse party under the provisions of G. S. 1949, 60-2803, rests largely in the discretion of the trial court and we find nothing in the record to indicate that it abused its discretion.
For the benefit of those who may be interested in the right of a litigant, to take the deposition of a witness, not a party — a question not here involved — readers of this opinion are referred to recent decisions of this court. See Richard v. Pohl, 184 Kan. 105, 334 p. 2d 390; Gardner v. Mae, 186 Kan. 375, 349 P. 2d 910; and Soden v. Gemberling, 188 Kan. 716, 718, 366 P. 2d 235.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to permanently enjoin the col lection of ad valorem taxes for the year 1961 upon the land commonly known and described as the Parklane Shopping Center located in Wichita, Kansas, based upon the assessments of the property for the year 1961.
Appeal has been perfected from the judgment of the trial court permanently enjoining certain defendants from proceeding to enforce and collect any taxes for the year 1961 based upon all or any portion of the 1961 assessments against the land.
The controlling question is whether the trial court had jurisdiction to enter its judgment after it dismissed the State Board of Equalization and its members from the lawsuit.
It is to be noted the caption in this case names as defendants “The State Board of Equalization” and Sam Brookover, Perry Owsley and Robert E. Lee Graham as members of such board. The record makes reference to the State Board of Equalization at numerous places, and also to the State Board of Tax Appeals. They are one and the same. Under G. S. 1961 Supp., 74-2439, the power to act as the State Board of Equalization is transferred to the Board of Tax Appeals; and by G. S. 1961 Supp., 79-1409, “The state board of tax appeals shall constitute a state board of equalization.”
Builders, Inc. (plaintiff-appellee) is die owner of three contiguous tracts of real estate designated in the record as Parklane I, Park-lane II, and Parklane III, containing approximately 8.988 acres or 391,516 square feet, 7.55 acres or 328,887 square feet, and 2.51 acres or 89,734 square feet, respectively. Collectively these tracts constitute the Parklane Shopping Center, and as a group are bounded on the west by Oliver Street and extend from Lincoln Street on the north to Harry Street on the south. This area is situated in a thickly populated district. Construction of buildings at the Parklane Shopping Center began in the spring of 1960.
In 1961 Parklane I was assessed for that year at $128,600; Park-lane II was assessed at $119,500; and Parklane III was assessed at $16,830. These assessed valuations were considerably less than the actual value placed on these tracts by the assessor, which were, respectively, $584,545.55, $543,181.81 and $76,500. The difference in these values is due to the fact that in Sedgwick County all real estate is assessed at approximately 22% of actual values. The figures herein apply to the land only, exclusive of the value of any improvements thereon.
The petition alleges the plaintiff, as managing agent of the owner of said tracts, filed a complaint with the County Board of Equalization with respect to said assessments. This complaint was heard May 26, 1961; and on May 29, 1961, the County Board of Equalization sustained the assessments concerning which complaint was made. Thereafter on June 7, 1961, the decision of the County Board of Equalization was appealed to the State Board of Equalization. This appeal was heard August 4, 1961, and on the same day, the State Board found the property in question was not assessed relatively higher than other property of like kind in Sedgwick County; that the facts did not justify a reduction in the assessed values; and that the values as fixed by the County Board of Equalization should stand.
Thereafter on November 10, 1961, the present action was filed in the district court of Sedgwick County, Kansas. The petition alleged that the plaintiff, Builders, Inc., was the owner in fee simple of the tracts above referred to and commonly known as Parklane Shopping Center, having acquired title thereto in August, 1961; and that other similar tracts in the Wichita area, describing them as Seneca Square Shopping Center, Boulevard Plaza Shopping Center, Ken-Mar Shopping Center, and Indian Hills Shopping Center, were assessed at amounts disproportionately lower than was Parklane Shopping Center, causing plaintiff to bear more than its proportionate share of the tax burden of Wichita. The petition also alleged the proceedings before the respective Board of Equalization and the results thereof as above stated.
The petition further alleged that both Boards of Equalization and their respective members failed and refused to perform their duties lawfully in that they have knowingly discriminated against the plaintiff so that its tax burden is larger than that of other owners of like property; that knowing of the disproportionate assessment of plaintiff’s property, they refused to reduce the Parklane assessments as an intentional discrimination against the plaintiff, and that then action in respect thereto was “so capricious, arbitrary, unreasonable and oppressive as to amount to fraud.”
That said excessive assessments were made contrary to law (G. S. 1949, 79-401; 79-501; 79-1406; G. S. 1959 Supp., 79-1409; 79-1412a; 79-1602; and 79-411) without any legislative authority or legal basis, and by reason thereof are illegal and void and impose a tax burden upon the plaintiff which is not uniform and equal. That said excessive assessments contravene Article XI, Section 1, of the Kansas Constitution, and the Fourteenth Amendment to the Federal Constitution in that they deny the plaintiff equal protection of the law, and by reason thereof are unconstitutional and void to the extent of such denial.
Plaintiff tendered into court the following amounts as one-half of the 1961 taxes based on its claims as to equal assessments: Parklane I, $1,931.78; Parklane II, $1,625.06; and Parklane III, $322.86. (Roughly these amounts are based upon an assessment representing 6% of the true value. Plaintiff’s evidence disclosed the other shopping centers heretofore mentioned were assessed at between .7% to approximately 6% of the ti-ue value. This was the finding of the trial court.) By its petition the plaintiff requested that the defendants be enjoined from proceeding to enforce or collect any taxes for 1961 based on such excessive, illegal and void assessments.
Answers were filed on behalf of the defendants which joined issues as to allegations of fraud against them, and which specifically denied their acts were unreasonable, arbitrary, oppressive or fraudulent. The answers denied that the plaintiff was entitled to injunctive relief because it had an adequate remedy at law as provided in G. S. 1949, 79-2005.
The case was tried in the district court of Sedgwick County on February 16, 1962, and at the close of plaintiff’s evidence the State Board of Equalization and its members orally moved that the case be dismissed as to them. As to this motion the court found:
“. . . that inasmuch as this action is not in the nature of an administrative review of the Orders entered by the above-named defendants, and inasmuch as the plaintiff is seeking no relief from the above-named defendants, that this action should be and it is hereby dismissed as to the defendants, the State Board of Equalization of the State of Kansas, and Sam Brookover, Perry Owsley and Robert E. Lee Graham, Members of the State Board of Equalization of the State of Kansas, and it is by the court so ordered. . .
At this stage of the case it is to be noted the State Board of Equalization and its members went out of the case, the litigation continuing as to the other defendants.
On April 20,1962, the court entered judgment against the remaining defendants finding that the plaintiff’s property was assessed at percentages of true value greatly in excess of that assessed against substantially all other land in Wichita of like character, resulting in the imposition upon plaintiff of a larger share of the tax burden than was proper, all of which was known to said county officers; and that their refusal to reduce the plaintiff’s assessment knowingly and intentionally discriminated against the plaintiff. That said assessments were unlawful and violated Article XI, Section 1, of the Kansas Constitution and the Fourteenth Amendment to the Federal Constitution. The court therefore adjudged said assessments to be illegal, unconstitutional and void. The court permanently enjoined the remaining defendants to this action:
“. . . from proceeding to enforce and collect any taxes for the year 1961 based upon all or any portion of the 1961 assessments against plaintiff’s said land.
“It Is by the Court further Considered, Ordered, Adjudged and Decreed that all money for taxes tendered into court by the plaintiff at the commencement of this action be returned to the plaintiff by the Clerk of the District Court.”
From this judgment appeal has been perfected to this court by the remaining defendants.
From the above statement of facts in this case, it is evident the appellee took its alleged grievance, first to the County Board of Equalization and then to the State Board of Tax Appeals. These official boards are the administrative agencies provided by law to determine controversies relating to assessments. (G. S. 1949, 79-1601; G. S. 1961 Supp., 79-1602, G. S. 1949, 79-701; G. S. 1961 Supp., 79-1409; 79-1412a; 79-1702; 74-2439; and 74-2426.) Relief claimed by the appellee having been denied by these Boards, the present action was brought to avoid the effect of such rulings.
It has been held from an early date that matters of assessment and taxation are administrative in character and not judicial. In Symns v. Graves [1902], 65 Kan. 628,70 Pac. 591, it was said:
“. . . Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waived aside to meet the exigencies of any particular case. . . .” (p.636.)
In the same decision the only grounds upon which there may be judicial interference were pointed out as follows:
“But fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity. . . .” (p. 636.)
Other decisions adhering to the foregoing rules are Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129; Salt Co. v. Ellsworth County, 82 Kan. 203, 107 Pac. 640; Eureka B. & L. Ass’n v. Myers, 147 Kan. 609, 78 P. 2d 68; and Hanzlick v. Republic County Comm’rs, 149 Kan. 667, 88 P. 2d 1111.
From the foregoing authorities it is apparent the limit of the trial court’s authority in the instant action was to determine whether the final decision made by the highest administrative tribunal, the State Board of Equalization, was brought about by fraud, abuse of discretion or conduct so arbitrary, capricious, unreasonable and oppressive as to amount to fraud. The appellee so alleged and thus came within the ambit of the above rule.
The issue to be tried in the lower court was whether the administrative action — the final order of the State Board of Tax Appeals — was actuated by improper motives. That question had to be determined upon the facts as they were known to the Board of Tax Appeals at the time of the hearing before it.
With the case in this posture the trial court sustained the motion of the State Board of Equalization and its members to dismiss them from the case, and not only did that body and its members go beyond the jurisdiction of the trial court, but the rest of the case went with it.
It is to be noted the appeal perfected by the appellants in this case was “from the Findings of Fact, Conclusions of Law, Judgment and Decision of the Trial Court, entered on April 20, 1962.” The decision dismissing the State Board of Equalization and its members was made on the 16th day of February, 1962. The State Board of Equalization and its members were out of the case and had no reason to appeal. The appellee, Builders, Inc., did not cross-appeal from the order dismissing the State Board of Equalization and its members from the case.
By the appeal to the State Board, the County Board of Equalization was deprived of jurisdiction and the whole controversy became vested in the State Board as the superior administrative appellate tribunal. Thereafter, any action taken by any of the county officers was entirely subject to the decision of the State Board. That body’s order was a decision of an administrative nature rendered by statutory authority and conclusive not only on the appellee but on the county officials as well.
In a case such as this the legislature specifically prohibited an appeal from the decision of the State Board of Equalization by the following proviso in G. S. 1961 Supp., 74-2426:
. . Provided, That no such appeal may be taken to the district court from any order determining, approving, modifying or equalizing the assessment of property for property tax purposes. . .
This does not mean that the taxpayer is without recourse. The appellee had an adequate remedy at law under G. S. 1949, 79-2005, whereby it might have paid the tax under protest, and then brought suit to recover such amount as may have been improperly paid, but the appellee did not choose to pursue that remedy. Instead the appellee brought the present action to enjoin the defendants from collecting the taxes in question. Certainly courts of equity will intervene to protect the taxpayer against fraudulent or oppressive conduct of an administrative body (City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701,703,360 P. 2d 29) or in some cases an injunction may be granted in a suit brought by the taxpayer. (G. S. 1949, 60-1121.) In either event, the attack is upon the decision of the official board which rendered the decision upholding the acts of the subordinate officials or body. It follows, the decision of the State Board of Equalization in the instant case is the point of attack. For the appellee to succeed, the fraudulent or oppressive conduct must be shown to have animated the action of the State Board.
It is apparent the appellee throughout the trial of the case recognized that it was required to prove the fraud, which it had alleged against the State Board of Equalization, independently of any other fraud which may have been charged in the case.
Upon the facts and circumstances presented by the record in this case, it appears the assessment of Parklane Shopping Center at 22% of actual value, as approved by the action of the State Board of Equalization, was irregular and grossly discriminatory, thus the product of arbitrary discrimination, not because the appellee’s property was assessed too high, but because property of the same class and character owned by others was not assessed on the same basis. Other shopping centers in Wichita were assessed at not to exceed 6% of actual value, thus indicating that they were systematically assessed at much lower values. (See, Raymond v. Chicago Traction Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7; Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 62 L. Ed. 1154, 38 S. Ct. 495; and Cumberland Coal Co. v. Board, 284 U. S. 23, 76 L. Ed. 146, 52 S. Ct. 48.) We are constrained, however, to hold that the trial court lost jurisdiction of the case when it dismissed the State Board of Equalization and its members.
If this were not true, the order of the State Board upholding and directing the county officials to levy the ad valorem tax on the basis of the 1961 assessed valuation of Parklane Shopping Center, would contradict the order of the district court enjoining the collection of the tax based upon such assessment. Both of these tribunals have superior authority over the county officials concerning the levy and collection of such tax. Obviously, the county officials cannot be placed in this dilemma.
The judgment is therefore reversed.
Fatzer, J., concurs in result. | [
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The opinion of the court was delivered by
Burch, J.:
The petitioner was convicted of violating a license ordinance of the city of Eureka, and adjudged to pay a fine and costs and to stand committed until the judgment should be satisfied. His time for appeal having elapsed, he asks to be discharged by the writ of habeas corpus.
He contends that he was engaged in interstate commerce, and hence was not subject to the penalties of the ordinance in question. His business was selling stereoscopes and stereoscopic views. He carried a satchel of samples from place to place and solicited purchases of his wares from an inspection of such samples. In the course of his canvass he obtained a number of promises from various persons to purchase both stereoscopes and views. On one occasion he made a sale from his- samples, delivering the goods and receiving payment in cash, but afterward, and on the same day, he paid the license-tax for one day. On a subsequent day he solicited Mrs. J. S. Davis to buy, and after inspecting the samples exhibited to her she agreed to take a stereoscope and at least one view. She designated the kind of stereoscope she desired, but made no selection of the view she was to receive. The petitioner noted Mrs. Davis’s requirements upon a blank order form, the character of which is not disclosed, and which, when filled out, she did not sign. The same method was pursued with petitioner’s other customers in the city of Eureka, except that in some cases a larger number of views was taken.
Having substantially covered the territory of the city, the petitioner sent to James M. Davis, a wholesale dealer in such wares, at St. Louis, in the state of Missouri, a blanket order for all the goods he had engaged to deliver, and for an additional number of views to meet the estimated future demands of his customers. This order did not disclose the names of any of the purchasers of any of the goods, or the kind or quantity desired by any one of them, and, when shipped, none of the goods was marked or otherwise designated for any particular individual. Davis packed in bulk, in one box, all the required articles, and sent them by express, C. O. D., to the petitioner at Eureka. Upon their arrival, petitioner paid the charges, received the box, and proceeded to distribute its contents to his various customers. When he delivered to Mrs. Davis the stereoscope ordered by her, her husband selected six views from a large lot which petitioner then exposed for that purpose, and bought them for the sum of one dollar. ’ Throughout the‘various transactions the petitioner claimed to be representing t'he St. Louis house.
Under these facts, it is clear that from the time the petitioner paid to the express company the price of" the goods demanded by his vendor, until the time he delivered them to his customers, the goods belonged to him. Therefore, the petitioner actually sold and delivered his own goods, and, whatever the form employed or guise adopted, the orders he received were in fact taken for himself.
The foreign merchant had no trade relations whatever with the ultimate purchasers. While it may have been his duty to fill the petitioner’s orders as sent in by the latter, he knew nothing of the ultimate ' purchasers or of their orders. Therefore the ordinance in question had no bearing whatever upon the foreign merchant or upon his business. The restrictions placed upon the method adopted by the petitioner - to put himself in a position to buy laid no burden upon the trade of the person selling to him. The latter cannot complain merely because the conduct of one who desires to become a purchaser is regulated by ordinance, while such prospective purchaser is securing himself against loss in the contemplated bargain.
The petitioner cannot sustain a claim that he is entitled to his liberty under the authority of The State v. Hickox, 64 Kan. 650, 68 Pac. 35. In that case it was declared that restrictions upon the solicitation and procuring, by a non-resident salesman, of orders for articles of commerce, to be purchased in, and imported from, another state, where the orders are subject to approval, constitute a burden upon interstate commerce. In that case the salesman actually represented a merchant of another state. The purchaser’s oider was sent to that merchant. That merchant reserved the right to accept or reject the orders sent in, and did pass on them. The identical order given by the purchaser was filled. ' When the goods were shipped they were shipped to the actual purchaser. At no time did the agent deliver any of the goods. In this case the petitioner merely took orders for himself, for goods which he intended to purchase, and which he did afterward purchase, and which he paid for and received in this state. The orders of the final recipients of the goods were never transmitted beyond the state, or accepted or filled by any one beyond the state, and the goods were,not delivered to the carrier for transportation to them.
The petitioner cannot be allowed the rights and privileges of an importer, because such a person can only be exempt from license-taxes when he sells and delivers goods in the original package of importation. (15 A. & E. Encycl. of L., 2d ed., 297.) The petitioner’s goods lost all such distinctive character, and were blended with the common property of the state as soon as he received his box. From the stock he received customers were allowed to make indiscriminate selections of views, without, regard to subject or number, and to buy them and' pay for them. The business was conducted with precisely the same legal effect, so far as the .matter of interstate commerce is concerned-, as if a merchant had opened a box of new goods bought in the wholesale market of another state, had placed them on his shelves or in his show-cases, and had sold them from there.
That the petitioner was a pedler there can be no doubt. He had no fixed place of business but traveled about from place to place. He carried with him a stock of views, which he offered for sale. He sold them at the time he offered them. He delivered them then and there, and then and there received his pay. (City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 41 Cent. L. J. 407, n.) This conduct he had repeated, arid he thereby incurred the penalties imposed by the ordinance.
The ordinance itself is not such that the court can say it is flagrantly unreasonable, unjust or oppressive, and, under the authority of In re Martin, 62 Kan. 638, 64 Pac. 43, and the cases there cited, it cannot be declared invalid on those grounds.
Other positions taken by the petitioner are untenable, and he is remanded to the custody of the marshal of the city of Eureka.
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The opinion of the court was delivered by
Mason, J. :
On December 29, 1900, J. P. Starr was struck and killed by a freight-car on the track of the Atchison, Topeka & Santa Fe Railway Company on Third avenue, in Emporia. His administrator sued the company and recovered a judgment for $2500, which the defendant now seeks to have reversed. The only claim of error which it will be necessary to consider is that the trial court erred in overruling a demurrer to the evidence of plaintiff, for the reason that it showed such contributory negligence as to preclude a recovery.
The facts shown by the evidence, so far as they affect this' matter, are substantially as follows: Third avenue runs east and west, and at the place where plaintiff’s decedent was killed and for a distance of several blocks each way it is graded and leveled to the top of the railroad-ties for its full width of eighty feet. ■ Four tracks'are laid in the street, also running east and west. The one farthest north is called the house track and that next to it (distant about five feet) .the main track. A spur track connects these two, its connection with the main track being west of its connection with the house track, thus permitting east-moving cars to be transferred over it from the main to the house track.. The entire street is suitable for walking, so far as the surface of the ground is concerned — between the tracks, upon the tracks, and both north and south of all the tracks. The main thoroughfare, where people do ,most of their traveling, is on the south part of the avenue and south of the main track, if not of all the tracks, but there are various paths worn, and there is considerable space north of the house track. About ten o’clock at night Starr was walking west on the main track. At some distance west of him defendant’s employees made a “flying switch” for the purpose of transferring a freight-car from the main to the house track. An engine with this one car attached started from a point west of the switch where the spur track connects with the main track, came east with sufficient rapidity to give the car momentum, dropped the car west of the switch, and running on ahead of the car passed over the switch along the main line, the switch being then thrown so as to cause the car, under the impetus thus given it, to pass over the spur to the house track. After passing the switch the engine slowed down, and the car, running parallel with it on the house track, was gaining upon it and had almost overtaken it while Starr was still walking up the main track toward the engine. There was a bright headlight on the engine. Starr did not leave the main track until the engine was very close to him. Of plaintiff’s three witnesses of the affair, one stated the distance as six or eight feet, another as fifteen feet, and the third as fifteen or sixteen feetr although his testimony showed some confusion between feet and paces. The petition says (but it is-not in evidence) that employees on the engine hailed Starr and he looked up and saw his danger. To-avoid the engine he stepped from the main track to the north and was struck and instantly killed by the car on the house track.
Preliminary to the discussion of the question of contributory negligence proper, it may be advisable to consider a claim of plaintiff in error that, while Starr was-not technically a trespasser, yet the railroad company had a right to the exclusive use of its tracks, even where laid in the street, and therefore owed to him no duty except not wilfully to injure him after discovering him in a place of danger. .In view of this claim, the defendant in error calls attention to the fact that the ordinance granting permission for the laying of these tracks provided that after putting them down the railroad company should restore the street to such condition that their construction should not interfere with its free use as a highway. This, however, we regard as only a substantial equivalent for the statutory obligation on the part of a railroad company using a street to restore it “to its former state, or to such state as to have not necessarily impaired its usefulness” (Gen. Stat. 1901, § 1316, 4th subd.) an obligation that exists even in the absence of statute. (Ell. Roads & Str., 2d ed., § 809.) The expressions of courts regarding the relative rights of the railroad company and the public where a track is laid in the highway are conflicting, but the conflict is probably less as to the real nature of such rights than as to the proper language to use in defining them. (Ell.Roads & Str., 2d ed., § 810; Tunison v. Weadock (Mich.), 89 N. W. 703 ; Adams v. W. & N. E. Ry., 3 Penn. (Del.) 512, 52 Atl. 264; Toledo, Wabash & Western Ry. Co. v. Harmon, 47 Ill. 298, 95 Am. Dec. 489; The Louisville, New Albany and Chicago Railway Company v. Phillips, 112 Ind. 59, 13 N. E. 132, 2 Am. St. Rep. 155; L. & N. Railroad Co. v. Annie E. Yniestra, 21 Fla. 700.) We deem it unnecessary to go further into this feature of the matter than to say that we do not accept the doctrine of an exclusive or paramount right in the railroad company. In Kansas Pacific Ply. Co. v. Pointer, 9 Kan. 620, 628, this court has said that the rights of the railway company and of the public are “about equal.”
Plaintiff in error makes the broad claim that one who is injured while walking upon a railroad-track longitudinally, although it is located in a public street, is by that act guilty of contributory negligence and thereby barred from a recovery. The strongest case in support of this contention is I. C. R. R. Co. v. Hall, 72 Ill. 222, 225, wherein it was said :
“It is negligence for a person to walk upon the track of a railroad, whether laid in the street or upon the open field, and he who deliberately does so will be presumed to assume the risk of the perils he may encounter. The crossing of a track of a railroad is a different thing. The one is unavoidable, but in the other case he voluntarily assumes to walk amid dangers constantly imminent. It is sought, in this case, to justify the conduct of appellee, in traveling upon the track of the railroad, by the fact there were no good walks elsewhere on that street for persons on foot, nor had the street, outside the road-bed, been graded to accommodate the travel. This was no fault of the company. It was not its duty to grade the street. The street is eighty feet wide, and, if graded, might be used with safety, as ordinary streets, notwithstanding the railroad is laid in it; but there was a path between the tracks and one at the side, which appellee could have used without the least danger. The side path was not so easy to walk upon as that between the rails, but that fact did not justify appellee in taking the dangerous path. He was familiar with the dangers to which he was exposed, and we must conclude he voluntarily assumed the hazard. He could have avoided all danger by a little inconvenience, but he did not choose to do it. The injury received must, therefore, be attributed to his want of ordinary care.”
In McAllister v. Burlington & Northwestern Railway Company, 64 Iowa, 395, 20 N. W. 488, and in Kenna v. Central Pacific R. Co., 101 Cal. 26, 35 Pac. 332, parts of the above excerpt, including the first sentence, were quoted approvingly, but neither case is founded upon an injury occurring in a public street. In I. C. R. R. Co. v. Baches, 55 Ill. 379, the defendant asked the court to give an instruction ending as follows:
“If the jury believe from the evidence that in this case the deceased, Jacob Baches, was upon the track of the defendant’s railroad, not for the purpose of crossing over the same, but for the purpose of employing ing the same as a foot-path from his place of labor to his residence, it was negligence on his part to employ such railroad-track for such a purpose, even though the jury should believe, from the evidence, that at the time he was so injured by defendant’s cars he had actually proceeded to, and arrived at, a point within the boundaries of a public highway.”
Of this instruction it was said in the opinion:
“No objection is perceived to this instruction. It is evident that a place where a railway crosses a common highway is of more than ordinary danger, when cars are frequently crossing at that point; and it is evident that all persons of ordinary intelligence should use greater precautions to avoid danger than at a place of less hazard. While all persons have a right to cross the railroad-track at the intersection of the two ways, it is the duty of such persons to do so with all reasonable dispatch, and it would be negligence in an intelligent person to be on the track of a railroad constantly used, unless for the purpose of crossing the same. These principles are fairly and clearly announced by this instruction, and it should have been given.”
A contrary view was expressed in Kroeger v. Texas & P. Ry. Co., 69 S. W. (Tex.) 809, 811, where it was said:
“The jury should not have been told that it was appellant’s duty to have walked on the outside of the rails if the road-bed was wide enough to leave sufficient room, in good condition for walking, outside the ties, for this was in effect telling them that he would, as a matter of law, be guilty of contributory negligence in walking down the center of the'track between the rails.”
In Lake Erie and Western Railroad Co. v. Brafford, Administrator, 15 Ind. App. 655, 664, 43 N. E. 882, 885, it was said, citing various Indiana cases :
“Appellee’s decedent was not a trespasser, nor necessarily guilty of negligence, in walking along a railroad-track laid in a public street.”
The Pittsburg, Cincinnati and St. Louis Ry. Co. v. Bennett, Adm’x, 9 Ind. App. 92, 35 N. E. 1033, and Fulmer v. Ill. Cent. R. R. Co., 68 Miss. 355, 8 So. 517, are to the same effect. In Fehnrich v. Railroad Co., 87 Mich. 606, 49 N. W. 890, the second paragraph of the syllabus includes this language :
“The ownership of a railroad company in its tracks upon a public street-crossing is not such as to make a man a trespasser unless he travels squarely across them.”
The trial court held to the contrary, and two of the five judges of the supreme court dissented from the majority decision and voted to affirm, citing Kelley v. Mich. Cent. R. Co., 65 Mich. 186, 31 N. W. 904, 8 Am. St. Rep. 876.
These citations show some conflict of authority upon the question whether the mere fact of walking along a railroad-track laid in a public street constitutes negligence. There is here present, however (as in several of the cases cited), an important element that limits the scope of the .inquiry, in this, that the evidence discloses that the decedent, for the purpose of passing along Third avenue, could as well have kept off the tracks as upon them. The usual course of travel was to the south of them, while between them, or at all events to the north of them, there was also sufficient room for walking in safety, without subjecting the pedestrian to any inconvenience whatever. There is nothing in the record that suggests the slightest reason for walking upon the tracks rather than elsewhere. The question for our determination is, Under these circumstances, does the voluntary choice of the tracks as a foot-path constitute a want of ordinary care? In Tucker v. B. & O. R. Co., 8 C. C. A. 416, 59 Fed. 968, a case of injury to a licensee, not, however, in a highway, it was said :
“The track of a railroad over which frequent trains are passing is a place of danger. A person who goes upon it unnecessarily, or without valid cause, voluntarily incurs a risk for the consequences of which he cannot hold other persons responsible.”
The second paragraph of the syllabus reads:
“It is negligence which will justify the withdrawal of a case from the jury for a licensee to walk on or near a track in a railroad yard when, in the exercise of due care, it is admitted that he could have walked safely by the side of such track.”/
In Lewis v. G. H. & S. A. Ry. Co., 73 Tex. 504, 507, 11 S. W. 528, the following language was used, recognizing a distinction between the necessary and voluntary use of a railroad-track :
“Prudence may demand that a passenger should not go upon the track if it'can be conveniently avoided ; but, if the use of the track as a footway should be necessary to the use of the street, one so using it could not be deemed a trespasser.”
An allegation in the petition that the railroad-track was “necessarily used” by the public was held to mean that the street was so narrow, or otherwise obstructed, that there was not room to walk in the street without going upon the track. In the course of the decision in Gulf, C. & S. F. Ry. Co. v. Wilkins (Tex.), 32 S. W. 351, in which contributory negligence was held to prevent a recovery, it was said :
“The evidence warrants the conclusion that appellant, when struck, was in Key street, but he was at a point in it which was not used as a crossing. Appellee was not attempting to cross the railroad, but was walking parallel with it, and near enough to it to be struck by the car. . . It may be conceded, also, that appellant was guilty of negligence in switching the car across or along the street as it did. The question then remains, Was appellee free from negligence in walking so close to the track as to be struck, without looking behind him? In the first place, his act in walking so close to the track exposed him to constant danger. This is so obvious as to need no illustration. . . . Nor is he relieved by the fact that when struck he was in a street. That fact has not, so far as we can see, any influence upon the question of his negligence. . . . He was not attempting to cross the street. The risk which he would have incurred, had that been his predicament, would have been very small compared with .that to which he was exposed in walking along the track. One walking, as was appellee, is constantly exposed, and at the same time is situated so that he cannot constantly see the dangers that approach; and this shows the fact that one who voluntarily places himself in such a situation cannot be truly said to be acting prudently."
In McIlhaney v. Railway Co., 120 N. C. 551, 26 S. E. 815, the plain tiff had been injured while walking along a railroad-track in a street nearly taken up with the tracks. The spaces between the tracks were paved with coal-dust, and afforded a good walking-way. In the decision it was said:
“Although the public were accustomed to use the street and the tracks for walking-ways, yet the plaintiff must have known that such use was at all times attended with some risk.' And this risk was necessarily increased with the darkness of the night. The use to which this street was put was a standing warning to pedestrians to be most careful when they undertook to walk through it. . . . This is not the case of one attempting to pass at a railroad-crossing in a city. . . . When, under these circumstances, the plaintiff left the safe walking-way where he was, a place prepared by the defendant, and where no harm could have come to him had he continued in it, the night being dark and it raining, with no lights on the street, and put himself on the defendant’s track, he was negligent, and contributed to his own injury. . But it must be borne in mind that the place where the plaintiff was injured was not a crossing, but upon a street filled up with four railroad-tracks, and constantly used for railroad purposes. The facts Concerning plaintiff’s conduct were undisputed, and we think but a single inference could be drawn from them by fair-minded men, and that is, that a prudent man would not have acted as the plaintiff did on the occasion of his injury.”
In Beck v. Vancouver Railway Co., 25 Ore. 32, 34 Pac. 753, an action for injuries from being struck by a train while plaintiff was walking along a railroad-track in a street, the second paragraph of the syllabus reads as follows:
“If one deliberately, and with Ms eyes open, goes into danger, he will not be heard to complain because he has been injured; it is his duty to use all the ordinary means that men generally use for their preservation, and if he fails in that regard, if he is apprised of the situation, and chooses a way of danger when a way of safety is opeD to him, he is guilty of contributory negligence, and must abide the result of his hardihood.”
In Loughrey, Appellant, v. Penna. R. R. Co., 201 Pa. St. 297, 50 Atl. 972, the supreme court approved the opinion of the lower court, as follows:
“The nonsuit was entered in this case because plaintiff’s own testimony showed contributory negligence on the part of the victim of the accident. He was walking along a street occupied by a double-track railway, on one of the main tracks, or so close to it as to be struck by the passing engine. It appears that there are no sidewalks on this street, but that there is at each side of these main tracks room for a wagon to pass along. Under these circumstances, without explanation of the necessity, we must conclude that it was negligence for this party to walk along the track, just as it wouid be negligence for foot-passengers without necessity to leave a sidewalk and walk in the roadway. But it is said that at the point of the accident there was a siding, which made a third track on the street. This might justify or excuse a walking on the siding, but not on the main track. There would seem even here to have been abundant room on the side of the street away from the siding for this person to walk, and he could have here walked in safety from engines on either the main track or siding. In any event, nothing has been shown which absolves him from the charge of negligence in walking along the main track.”
In harmony, with the spirit of these expressions, we hold that, where railroad-tracks are laid in a public street, and there is room for a pedestrian who wishes to travel along the street to walk in safety outside the tracks, and there is no reason resting in either necessity or convenience for his going upon them, it is negligence for him to walk along a track between the rails. Since the negligence of the deceased in walking upon the track obviously contributed to the occurrence that caused his death, it follows that the demurrer to the evidence should have been sustained.
It is argued by defendant in error that the conduct of the company was of such character as to cut off the defense of contributory negligence. To sustain this contention would require a finding that the injury was intentionally and wantonly caused by the defendant. (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529.) We do not think that the evidence would justify such a finding, nor was this theory presented by the trial court to the jury.
Even if the evidence had shown a substantial reason for walking upon the tracks rather than outside them, there is another feature of the case that might prevent a recovery. Plaintiff’s evidence tends to show that there was nothing to prevent decedent from seeing the car in time to avoid it unless it was the fact that the glare of the headlight practically blinded him. The petition alleges that it confused his vision. While the occurrence took place at night, and the testimony does not disclose the character of the artificial light, the eye-witnesses already referred to were able to see the car for a time, and perhaps until the engine cut off their view. One of them said there was nothing to obstruct decedent’s view of the car unless the headlight blinded him. This language obviously has reference to anything that might in any way have prevented decedent’s seeing the car, and not merely to an intervening obstacle. In the brief of plaintiff in error it is said that Starr stepped out from the glare and blinding light caused by the headlight of the engine into the darkness north of the main track. If the only thing that prevented his seeing the car in time to avoid it was the fact that he had voluntarily remained directly facing the headlight until it temporarily blinded him, or if he stepped upon the house track when he was in such condition that he could not see whether it was clear or not, his situation was very similar to that of one who goes upon a railroad-track while his view is temporarily obscured by smoke or by some obstruction due to his own act, and he would not be entitled to recover. As a decision of this question is not necessary to a determination of the case, we shall not pass on it.
The judgment is reversed, and the cause remanded with directions to grant a new trial for the error in overruling the demurrer to the evidence.
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for wrongful death, alleged to have been caused by the negligence of two defendants, in a three way automobile accident. The appeal is by one of the defendants from an order of the trial court overruling his demurrer to the plaintiff’s petition.
The defendants in the action are Harold D. Plackett and Richard L. Mai. We are told, and it is not denied, that Plackett’s demurrer to the petition on the ground it failed to state a cause of action, based on his negligence, was overruled by the trial court and that he took ho appeal from that ruling. Therefore, in this opinion we shall treat the petition as stating a cause of action against him. Even so in order to have a proper understanding of the issues involved on Mai’s appeal it will be necessary to relate certain allegations of the petition pertaining to Plackett.
In substance, with respect to the matters having equal application to all parties to the action, preliminary allegations of the petition are as follows:
Plaintiff is the widow of Sherman W. Reed, Jr., who died on December 3, 1949, at the age of 46 years. Early in the evening on that date decedent was driving his automobile in a westerly direction on U. S. Highway No. 24, in a careful and prudent manner at a rate of speed of forty miles per hour, near what is known as “Rig Muddy Creek Rridge.” As he approached such bridge, defendant Plackett, who was also driving an automobile upon such highway in an easterly direction, carelessly and negligently drove his automobile down the center of such highway from the west at a high rate of speed, in excess of more than fifty miles per hour, and proceeded in that manner onto and across such bridge, with lights brightly burning, directly toward the automobile driven by the decedent Reed. The acts of such defendant placed Reed in a position of sudden danger and peril as he was about to enter upon the bridge with the result that in an effort to avoid being struck by Plackett’s automobile he pulled his automobile to the right and attempted to stop as he was entering onto the bridge but was unable to do so before he struck the east abutment of such bridge. As he did so his automobile was struck on the left rear side by Plackett’s automobile with such force that it was knocked or swung around and back down the highway about thirty-seven and one-half feet in an easterly direction. The force of this collision caused Reed to be thrown from his automobile onto the pavement on U. S. Highway No. 24 injuring him and causing him to lie on such pavement in an unconscious and prostrate condition.
So far as particular acts of negligence relied on by plaintiff as grounds for recovery against the defendant Mai are concerned the petition reads as follows:
“At the same time said defendant Richard L. Mai, was driving his 1949 Plymouth Club Coupé carelessly and negligently in an easterly direction on said U. S. Highway No. 24 at a distance of approximately 200 feet behind the automobile of said defendant, Harold D. Plackett, and at a high rate of speed of more than 50 miles per hour, which was greater than was reasonable and proper under the circumstances, while approaching said bridge at night with other traffic thereon. Said defendant, Richard L. Mai, saw the body of said Sherman W. Reed, Jr., lying on the pavement as aforesaid, and, without turning his said automobile either to the right or left of said body, although there was ample time and space to do so, said defendant, Richard L. Mai, carelessly and negligently drove his said automobile directly over the body of the said Sherman W. Reed, Jr., when he could have avoided the same, thereby causing further and additional injuries to the said Sherman W. Reed, Jr., the exact nature of which are not known at this time to this plaintiff, and therefore cannot be set forth in detail herein. Plaintiff is informed and therefore alleges the fact to be that said defendant, Richard L. Mai, had other passengers with him at the time, and that he was talking and laughing with his passengers, and was not closely watching his said automobile or the highway upon which he was driving.”
Following the foregoing allegations the petition goes on to state that Reed received a broken neck and a fractured skull, in addition to other injuries in the collision, all of which contributed to and caused his death shortly thereafter. It then states:
“The negligence of said defendant, Harold D. Plackett, in carelessly and negligently driving his said automobile down the center of said highway and onto said bridge with his bright lights burning, and directly toward the automobile of the said Sherman W. Reed, Jr., and at a greater rate of speed than was reasonable and proper under the circumstances, and the negligence of said defendant, Richard L. Mai, in carelessly and negligently driving his said automobile along said highway at a rate of speed greater than was reasonable and proper under the circumstances, and in failing to turn either to the right or to the left of said Sherman W. Reed, Jr., in order to miss the said Sherman W. Reed, Jr., while he was lying on the pavement as aforesaid, were joint and concurrent and were the proximate causes of the injuries to the said Sherman W. Reed, Jr., which resulted in his death.”
Concluding allegations of the petition, with which we are not concerned on a review of the ruling on the demurrer, include averments respecting Reed’s family status and a prayer for damages in the maximum amount permitted by our statute, G. S. 1949, 60-3203, in cases where the death of one person is caused by the wrongful act or omission of another.
Motions by the appealing defendant to make the foregoing petition more definite and certain and to strike certain allegations therefrom, portions of which will be presently referred to in more detail, were overruled by the trial court in their entirety. Thereupon, defendant demurred to the petition on grounds, among others not here material, that it failed to state facts sufficient to constitute a cause of action and disclosed a misjoinder of causes of action. When this demurrer was overruled defendant Mai, hereinafter referred to as appellant, perfected the instant appeal.
In his specifications of error the appellant contends the district court erred: (1) In overruling his motion to require appellee to make her petition more specific, definite and certain; (2) in overruling his motion to strike; and (3) in overruling his demurrer to the petition.
We shall first consider errors assigned with respect to rulings on the motions. As we do so we are met at the outset by an objection on the part of appellee that such rulings are not subject to appellate review. The rule in this jurisdiction, as appellant frankly concedes, is that rulings on motions to strike and to make definite and certain are not appealable unless they affect a substantial right and in effect determine the action (Billups v. American Surety Co., 170 Kan. 666, 671, 228 P. 2d 731, and cases there cited.).
The first claims advanced by appellant on this subject have to do with the motion to strike. It is urged that allegations in the petition to the effect the decedent’s car wás being driven by him "in a careful and prudent manner on the north of right hand side of said highway . . . which was reasonable and proper under the circumstances.”, is nothing more than a conclusion on the part of the pleader and that such allegations are argumentative, redundant and surplusage, and should have been ordered stricken from the petition. We doubt these allegations warrant that construction but even so it cannot be said they afford sound ground for holding appellant was prejudiced by the fact they were left in the petition. Next it is argued the allegations “plaintiff is informed and therefore alleges the fact to be that said defendant, Richard L. Mai, had other passengers with him at the time, and that he was talking and laughing with his passengers, and was not closely watching his said automobile or the highway upon which he was driving.”, should have been stricken from the petition on his motion, because based upon speculation, hearsay and guess, and not alleged as an act of negligence on the part of the appellant. We are far from convinced, indeed there is ample authority to the contrary (See 41 Am. Jur., Pleading, 316 §40, and authorities there cited) it is improper to allege the existence of a fact on information and belief and it is certain, that if proved, those set forth in the challenged allegation would have a bearing on whether appellant was driving his car at a greater rate of speed than was reasonable and proper, one of the specific acts of negligence relied on for recovery. In any event it cannot be said the overruling of this portion of the motion resulted in depriving appellant of a substantial right.
Appellant’s contention regarding the ruling on his motion to make the petition more definite and certain is general, not specific, in nature, and in presenting it he does not direct our attention to any particular allegation of the petition challenged by the motion. Ordinarily, this would not be enough to enable us to pass upon the merits of his claim with respect thereto. However, it does appear from his brief the gist of his position is that if the petition charges him with anything it attempts to charge him with negligence under the doctrine of last clear chance. For that reason we are inclined to give it attention. We do not believe the petition is subject to the construction appellant places upon it. As we read it appellee bases her cause of action upon alleged negligence of appellant which was so closely related and interwoven in point of time with the initial collision as to render him jointly liable with Plackett under pertinent and well established principles of the so-called doctrine of concurrent negligence. Moreover, in her brief, appellee concedes she did not attempt to plead and is not basing her right of recovery against appellant under the last clear chance doctrine. In such a situation it cannot be successfully urged the trial court erred in overruling a motion founded on the theory it should make her petition more definite and certain with respect to matters relating to such doctrine.
After careful examination of all rulings on the motions, to which we have heretofore referred, we fail to find any one of them had the effect of determining the action. The result is that appellee’s position such rulings are not appealable must be upheld.
Turning to contentions advanced with respect to the trial court’s ruling on the demurrer we are constrained to hold there is little merit in appellant’s claim the petition fails to state a cause of action against him for negligence. Such pleading expressly alleges that while approaching the bridge at night, approximately 200 feet behind Plackett’s automobile, at a rate of speed which was greater than was reasonable and proper under the existing circumstances appellant saw the body of Reed lying on the pavement and without turning his automobile either to the right or left, although there was ample time and space to do so, drove his automobile directly over Reed’s body when he could have avoided the same, thereby causing that individual further and additional injuries. For present purposes we must consider such allegations and others to be found in the petition of a similar nature to be true. Standing alone, and without regard to the conditions and circumstances under which Reed’s body happened to be lying on the pavement, those allegations, when accepted as true, were sufficient to warrant the trial court in concluding the petition stated a cause of action against the appellant founded on negligence.
We now give attention to appellant’s claim his demurrer should have been sustained upon the ground the petition discloses a misjoinder of causes of action.
The established law of this state is that concurrent negligent acts of two or more parties render them liable as joint tortfeasors (Acock v. Kansas City Power & Light Co., 135 Kan. 389, 10 P. 2d 877; Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614; Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112; Rowell v. City of Wichita, 162 Kan. 294 176 P. 2d 590 and Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88 131 P. 2d 924).
The burden of appellant’s contention on this point is, that under allegations of the petition, the proximate cause of any injuries Reed may have sustained by reason of appellant’s car passing over him was the alleged negligence of Plackett, and since that individual’s negligence was separate, distinct, and unrelated, appellant’s negligence, if any, was at best only a remote cause of the collision and injuries sustained by Reed and, therefore, appellant is not liable under appellee’s theory his negligence and that of Plackett’s were concurrent.
Broadly stated, the rule in this jurisdiction, and the one supported by the great weight of authorities in other jurisdictions, is that where a third person sustains indivisible injuries in a motor vehicle collision as a. result of negligence on the part of the drivers of two other motor vehicles which is so related and interwoven in point of time that it appears the injuries would not have been received by the third person except for the successive and combined negligence of the others, those whose acts so united in producing the injuries will be held jointly and severally liable to the injured party and may be sued severally or jointly at his election. This, we may add, is the rule not only where the tortfeasors are acting together, or where there is a common design or purpose, or concert of action, or a breach of common duty owing by them, but also where their acts of negligence are separate and independent so long as they are so closely related and interwoven in point of time as to directly contribute to the cause of the accident. For well recognized legal treatises and cited decisions supporting the foregoing rule see 38 Am. Jur., Negligence, 946 § 257, also 65 C. J. S., Negligence, 639, 674, 685, §§ 102, 110(a) (b), 111(a) (b).
In Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614, we held:
“Substantially concurrent negligent acts of two or more persons render all liable as joint tortfeasors where the act or acts of each contribute to the injury. In such circumstances the degree of culpability of each is immaterial and each is hable for the entire damage.” (Syl ¶ 2).
Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924, holds:
“Where • concurrent negligent acts of joint tortfeasors contribute to bring about injury to an innocent third party, the degree of their culpability is immaterial.
“Where injury to an innocent party would not have occurred, except for the concurrent negligence of others, the subject of proximate cause need not be considered; those whose acts united in producing the injury will be held jointly and severally hable to the injured party.” (Syl. ¶¶ 5, 6).
In Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590, we held:
“A cause is concurrent if it was a cause which was operative at the moment of injury and acted contemporaneously with another cause to produce an injury and was an efficient cause in the sense that without it the injury would not have occurred.” (Syl. f 11.)
However, it so happens that the contention now under consideration and advanced in the instant case need not be decided entirely upon application of its facts to general principles of law but can be determined upon the basis of a decision of this court in which the factual situation involved and the principles of law relied on were so nearly identical that it is hardly possible to distinguish the two cases.
Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112, was a case where a petition contained similar allegations and the appellant, whose demurrer on grounds of misjoinder of causes of action had been overruled by the trial court, made the very same contentions that the appellant is making here. In that case, after disposing of each and all of such contentions in a thorough and well reasoned opinion, we held:
“Where a person while driving Iris automobile on his own and proper north side of a highway is struck by an automobile traveling in the oppisite direction and plaintiff’s car is thrown partly across the highway and the other car is thrown onto the south side of the highway, and while plaintiff’s car is in such position but before plaintiff is able to remove himself therefrom, and without the occurrence of any new and independent force or intervening efficient cause to break the connection between the original wrong and injury, plaintiff’s car is struck by a second automobile, so that both negligent acts concurred to produce tile final and complete result, it does not constitute misjoinder of causes of action for plaintiff to proceed against both tortfeasors in the same action.” (Syl ¶[ 4).
We are perfectly aware that appellee may have difficulty in establishing the facts set forth in her petition, heretofore quoted, and for that reason not here repeated. Be that as it may, we are convinced that under the authorities, to which we have heretofore referred, the allegations of that pleading state a cause of action against the appellant founded on concurrent negligence, and hence such pleading discloses no misjoinder of causes of action against appellant and his codefendant.
It follows the order of the trial court in overruling the demurrer to the petition must be and is affirmed. | [
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Hill, J.:
In this appeal we must answer the question whether it is permissible for a trooper, who smelled the odor of burnt marijuana coming from inside the passenger compartment of a car, to search the driver of a car stopped for speeding. Under the facts of this case — where the odor is of burnt marijuana and the driver admitted the passenger in the car had just smoked some marijuana, the trooper was alone at the scene, and any evidence could have easily been destroyed — we hold that there was probable cause to search the driver and exigent circumstances supported the warrantless search. Therefore, we affirm tire district court’s denial of the motion to suppress.
Background Facts and Prior Proceedings
Trooper Mark Engholm stopped Ramon I. Fewell for speeding in Shawnee County. Upon approaching the passenger side of the vehicle, the trooper smelled a strong odor of burnt marijuana coming from the interior of the vehicle. The trooper then asked Fewell, the driver, to step out of the car and meet him at the rear of the vehicle.
At the rear of the vehicle, the trooper questioned Fewell about the marijuana odor. Initially, Fewell denied there was an odor but then admitted to the trooper that the passenger of his car had smoked a “blunt.” Relying on his 11-year experience with the highway patrol and tire sheriff s department, the trooper knew that a blunt was a hollowed out cigar with marijuana placed into it. Consequently, the trooper left Fewell to speak to the passenger. Upon searching the passenger, the trooper discovered three bags of marijuana and $1,000 in cash.
The trooper then returned to Fewell and conducted a pat-down search, finding a switchblade knife, a bent spoon, and a glass pipe on Fewell’s person. The trooper arrested Fewell and waited for backup. Notably, during that time, the trooper did not advise Fewell of his Miranda rights. See Miranda v. Arizona, 385 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). Once back-up arrived, the trooper further searched Fewell and found a small bag of crack cocaine in Fewells right hand. After arresting both Fewell and his passenger, the trooper searched the vehicle but did not discover any more incriminating evidence.
The State charged Fewell with four crimes: (1) possession or control of opiate, opium, or narcotic drug; (2) criminal use of weapons; (3) possession of drug paraphernalia; and (4) speeding. Fewell filed a motion to suppress, claiming that the trooper’s search of Fewell was unreasonable. After conducting an evidentiary hearing, the district court denied Fewell’s motion. At the motion hearing, the district court held that Fewell’s responses after being handcuffed were inadmissible at trial because of the trooper’s failure to give Fewell Miranda warnings. Later, at trial, the district court ruled that references to the bent spoon would be excluded, under an oral motion in limine, since the State had only charged Fewell with the pipe as drug paraphernalia. The jury found Fewell guilty on all counts.
Search of Fewell
Fewell questions whether the trooper had probable cause to search him since no direct evidence showed he possessed marijuana. In order to answer this question, some fundamental rules of law over search and seizure must be reviewed.
“The Fourth Amendment to the United State Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception. [Citations omitted.]” Kansas has recognized eight exceptions to the Fourth Amendment search warrant requirement: (1) consent, (2) searches incident to a lawful arrest, (3) stop and frisks, (4) probable cause to search accompanied by exigent circumstances, (5) the emergency doctrine, (6) inventory searches, (7) plain view, and (8) administrative searches of closely regulated businesses. State v. Ramirez, 278 Kan. 402, 404-05, 100 P.3d 94 (2004).
At the suppression hearing, the district court ruled that the troopers search of Fewell was lawful. After examining the court’s rationale in State v. MacDonald, 253 Kan. 320, 856 P.2d 116 (1993), and State v. Thomas, 28 Kan. App. 2d 70, 12 P.3d 420, rev. denied 270 Kan. 903 (2001), where the odor of marijuana provided probable cause for a warrantless search, the district court held that since the trooper had probable cause to search the vehicle based upon the burnt marijuana odor, this probable cause extended to the search of the vehicle’s occupants. Accordingly, the district court denied Fewell’s motion to suppress.
Our scope of review is clear. “In reviewing a district court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment.” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
Under the probable cause to search coupled with exigent circumstances exception, the court must consider (1) the totality of circumstances in determining whether probable cause existed for a search and (2) whether there were exigent circumstances that made it impracticable to obtain a warrant. Ramirez, 278 Kan. at 406-07 (citing United States v. Saucedo-Munoz, 307 F.3d 344, 351 [5th Cir. 2002], cert. denied 537 U.S. 1178 [2003]) (probable cause to search); State v. Sanders, 5 Kan. App. 2d 189, 199-200, 614 P.2d 998 (1980) (exigent circumstances).
Probable Cause to Search
Here is the classic definition for probable cause in this context: In the context of a search, probable cause means such information as would lead a reasonably prudent person to believe that a crime has been or is being committed and that evidence of the crime may be found on a particular person, in a specific place, or within a specific means of conveyance. See State v. Mayberry, 248 Kan. 369, 377, 807 P.2d 86 (1991); State v. Moore, 34 Kan. App. 2d 795, 808, 124 P.3d 1054 (2005), rev. granted 281 Kan. 1381 (2006) (review pending on search and seizure issues; case involves fabric softener dryer sheets used as masking agent for illegal drugs).
Here, the trooper encountered three circumstances that led to his belief that he had probable cause to search Fewell: (1) burnt marijuana odor from the vehicle; (2) FewelTs statement that the passenger smoked a blunt; and (3) marijuana found in the possession of the passenger.
Two Kansas cases are instructive. MacDonald and Thomas. In MacDonald, 253 Kan. at 324-25, the court held that marijuana odor, standing alone, provides probable cause to search a vehicle for three reasons. First, MacDonald ruled that the “trooper had probable cause to further detain the vehicle when he smelled the marijuana odor.” Second, “the odor created the needed particularized suspicion of criminal activity.” Third, a number of courts have found that the detection of marijuana odor by an experienced officer can provide probable cause to conduct a warrantless search of an automobile. 253 Kan. at 324-25 (citing United States v. Padron, 657 F. Supp. 840, 848 [D. Del. 1987], aff'd without op. 857 F.2d 1466 [3d Cir.], cert. denied 488 U.S. 974 [1988]). It is important to note that MacDonald limited its holding to the facts of the case. 253 Kan. 320, Syl. ¶ 2.
Thomas, however, extended MacDonald’s rationale to include individuals. In Thomas, the officer arrested the defendant for an outstanding warrant. While en route to the detention center, the officer smelled marijuana emitting from the defendant. At the detention facility, the officer advised the jail personnel of the odor, and, as a result, the defendant was strip searched and a baggie of cocaine was found.
Thomas recognized that the Kansas courts failed to address “whether the mere odor is sufficient to establish probable cause to search a person.” 28 Kan. App. 2d at 73-74. Nonetheless, the court reviewed MacDonald and its citation to Padrón, noting that the odor of marijuana was sufficient to establish probable cause. Therefore, the court held that since there was “already existing Kansas precedent for the conclusion that the odor of marijuana can form the basis for probable cause,” it could also “be reasonably concluded that the odor of marijuana on a person in custody, coupled with the detention facility’s recognized security interest in preventing the introduction of such contraband within its walls, is sufficient to establish probable cause to strip search” the defendant. (Emphasis added.) 28 Kan. App. 2d at 74.
We note, in passing, that State v. Anderson, 34 Kan. App. 2d 375, 388, 392, 119 P.3d 1171 (2005), aff'd 281 Kan. 896, 136 P.3d 406 (2006), held that finding marijuana on the passenger of the vehicle, standing alone, does not constitute reasonable suspicion to further detain die driver or probable cause to arrest the driver unless the officers can directly link the driver to drug activity. This case is distinguishable from Anderson in that the officers in Anderson did not detect marijuana odor in the vehicle prior to searching the driver. Instead, the officers discovered marijuana on the passenger after a pat down and used that evidence as a reason to further detain the driver.
We think the holding in MacDonald can be extended to the facts of this case. First, the smell of marijuana gave the trooper probable cause to further detain the vehicle, including Fewell as the driver of that vehicle. Second, the odor created the officer s suspicion that marijuana use had been committed and that such evidence might be found on the driver, especially since the odor was burnt, compared to fresh, and that Fewell admitted that his passenger had smoked a blunt. Here, the trooper was experienced in detecting marijuana odor through his 11 years of law enforcement experience. Consequently, under the circumstances of this case, there was probable cause to search the driver based on the detection of burnt marijuana odor emanating from the vehicle.
The dissent is not convinced that the trooper had probable cause to search Fewell. The dissent reasons that since the passenger failed to implicate the driver, there was no reason to search fhe driver. The dissent opines that the trooper is required to believe the passenger. But probable cause here is based on more evidence than the statement of a passenger. For this is the same passenger that said, “[i]t’s all gone, I smoked it,” yet he was found with three bags of marijuana on his person and $1,000. That does not appear to be credible.
The dissent also ignores the fact that the trooper first learned about the blunt from Fewell. He admitted to the trooper that he knew his passenger was smoking marijuana while he was driving. The burnt smell gave the trooper an immediacy to the timing of the criminal acts. After hearing Fewell’s admission and knowing the results of his search of the passenger, a reasonable officer with 11 years experience would have probable cause to search the driver s person for contraband, especially in light of the exigent circumstances that existed here.
Exigent Circumstances
In this context it has been held that “[ejxigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered. [Citation omitted.]” State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997).
The Houze court focused on whether exigent circumstances could support a warrantless search of a person after that person got out of a vehicle. Houze did determine that the trial court’s finding of exigent circumstances was reasonable because the evidence would have likely been lost or destroyed had the defendant been able to proceed into the residence. They were exigent circumstances because (1) there was probable cause that the evidence might be located on the person and (2) there was a probable loss of evidence in waiting for a search warrant to be executed. 23 Kan. App. 2d at 339-40.
The same reasoning applies here. The trooper was alone at the stop; if the trooper had sought a warrant, there would have been probable loss or destruction of evidence. Fewell does not argue that this assumption is untrue even though when left alone at the rear of the vehicle for at least 6 minutes, he had not disposed of any evidence. Nonetheless, the trooper performed the search only after Fewell had requested to leave to pick up the passenger’s girlfriend. Therefore, because of the possible loss of evidence in permitting Fewell to leave while waiting for a warrant to be obtained, we think exigent circumstances existed to support the warrantless search of Fewell.
Accordingly, since the trooper had probable cause to search Fewell and there were exigent circumstances to support the warrantless search, the district court did not err in denying the motion to suppress.
Other Claims of Error
Fewell argues that the State committed prosecutorial misconduct in two instances. He also avers that cumulative trial errors prejudiced his right to a fair trial. Finally he also claims that the State did not properly prove his criminal history.
Prosecutor Conduct
First, Fewell claims that the prosecutors line of questioning compelled the trooper to comment on Fewell’s credibility. Second, Fewell asserts that the prosecutor made reference to evidence that had been excluded and thus prejudiced the jury against him. In addition, Fewell argues that the above misconduct cumulatively denied him a fair trial.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006).
The cases are clear on this point. “A witness may not express an opinion on the credibility of another witness.” State v. Elnicki, 279 Kan. 47, 53, 105 P.3d 1222 (2005). “Questions which compel a defendant or witness to comment on the credibility of another witness are improper. It is the province of the jury to weigh the credibility of the witnesses.” State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001).
Fewell contends that the following exchange compelled the trooper to testify that Fewell was a liar:
“Q. [State]: How did you confront him?
“A. [Trooper]: I told him I smelled — I said, “What’s with the marijuana in your vehicle?’
“Q.: And what was his response, initial response?
“A.: He initially acted like there was no odor, that I was just, I guess, smelling things.
“Q.: Did you have a response to that?
“A.: Yes. Ah, I — I told him that obviously I’m smelling this, there is obviously a smell of marijuana in the vehicle, and this can go one of two ways.
“Q.: Okay. Fair to say — well, let me ask you. Were you angiy when he indicated he didn’t know anything about the smell?
“A.: It’s not anger, I would say it’s just kind of frustration.
“Q.: Explain that for the jury.
“A.: Well, I have been doing this for [11] years. I have been around marijuana and burnt marijuana and drugs during that time. Ah, I know what the odor is, there is no other odor like it, it is a distinct odor, and it just never fails to amaze me when people will say what, what are you talking about, I don’t know what that is type thing, so it’s more of an exasperation, frustration. People will lie about something just so simple.
“Q.: And did you indicate to him — you said you indicated to him it could go one of two ways?
“A.: Yes.” (Emphasis added.)
These facts are greatly different from Elnicki. In Elnicki, the jury viewed a videotape confession that contained the comments from a detective on the defendant’s veracity. In the videotape, the detective commented eight times that the defendant was a “liar,” was “ ‘bullshitting’ ” him, “ ‘weaving a web of lies,’ ” and that the defendant’s shifting eyes illustrated that he was lying. As a result, the court held that the detective’s statements were improper and that this and other prosecutorial misconduct prejudiced the jury against the defendant. Importantly, the court stated that this issue could have been rectified had the detective testified in court and pointed out the inconsistencies of the defendant’s stories without the added negative comments. 279 Kan. at 57.
First, the trooper’s isolated reference did not rise to the level in Elnicki where the detective repeatedly commented on the defendant’s veracity. Second, the trooper’s comment focused on a generality, while the detective’s comments were made directly against Elnicki. Third, as Elnicki suggested, the trooper testified in court, explaining the inconsistencies in FewelTs story regarding the marijuana odor.
We think the trooper essentially expressed his opinion that people he about having burnt marijuana odor in their car, and in the context of the questioning, it could be construed that the trooper s comment was directed against Fewell. Nevertheless, even with that interpretation, this comment did not constitute plain error. Following the troopers comment, the trooper testified that Fewell admitted to him that his passenger smoked a blunt. Moreover, the trooper testified that upon questioning the passenger, the passenger stated that there was no marijuana in the car because he had smoked it. Therefore, the trooper s comment did not prejudice the jury against the defendant to deny him a fair trial since evidence was presented during the same testimony, showing that Fewell had lied about having burnt marijuana odor in the car. This is not prosecutor misconduct.
Bent Spoon Evidence
The district court granted FewelTs oral motion in limine to preclude any statements about the bent spoon. Fewell argues that the State violated this order by referencing to this item twice during trial. First, Fewell points to the following comment as being prejudicial:
“Q. [State]: Did you recover any iterns that later led to charges in this case?
“A. [Trooper]: Yes.
“Q.: And describe those items that led to the charges in this case.
“A.: There was a switchblade knife with a three-and-three-quarter-inch blade, there is a glass pipe — I’m sorry.
“Q.: No, keep going.
“A.: I’m getting ahead of myself. —a glass pipe that’s used for smoking various types of illicit, illegal drugs, and there was a small bag containing a rock of what was later identified as crack cocaine.” (Emphasis added.)
Here, it is difficult to see how the State violated the order in hmine. Each item that the trooper described fell within counts 1, 2, and 3. First, the item of crack cocaine supported the charge of possession of opiate, opium, or narcotic drug. Second, the glass pipe supported the charge of possession of drug paraphernalia. Third, the switchblade knife supported the charge of criminal use of weapons. Accordingly, the State did not elicit testimony that could be interpreted to be referencing the bent spoon. Therefore, the defendant has failed to demonstrate that the State violated the order in limine.
Comments About Video
Fewell states that the following comments about the video were prejudicial:
“Q. [State]: Just one or two more brief questions. As to the video, you have had an opportunity to review that video, is that correct?
“A. [Trooper]: Yes.
“Q.: And there has been some adjustments made to that video, is that correct, due to rulings in this caseP
“A.: Yes.
“Q.: Absent those adjustments, is that video an accurate description and depiction of the events that occurred that night?
“A.: Yes.” (Emphasis added.)
The defendant has faded to show that these comments were prejudicial. First, the State’s comments appear to be laying foundation for the redacted tape to be later entered at trial. Second, the district court, itself, informed the jury that it had ruled that adjustments to the videotape had to be made.
In State v. Kemp, 30 Kan. App. 2d 657, 663, 46 P.3d 31 (2002), the court held an adequate foundation for the admission of a videotape requires testimony that the tape accurately represents the events presented and that testimony that an admitted copy is identical to the original videotape is insufficient. Here, it appears that the State was attempting to lay the foundation of the redacted videotape to be admitted later in the trial, and in order to comply with Kemp, the State had to comment that the videotape had been adjusted.
This assumption is proper because prior to entering the redacted videotape at trial, the State claimed that “the trooper testified to the basis of having it admitted.” Furthermore, the district court informed the jury that “there ha[d] been some parts of this excised, so basically that’s pursuant to the Court’s ruling.” Consequently, Fewell fails to demonstrate that the State violated the order of limine or that the testimony substantially prejudiced him. There is no prosecutorial misconduct here.
No Cumulative Trial Error
Since none of FewelFs arguments concerning trial errors are convincing, there are no cumulative errors to assess.
Criminal History Score
Fewell argues that the district court erred in failing to require his prior convictions to be in the complaint and put before a juiy to be proven beyond a reasonable doubt. The Kansas Supreme Court has held that including prior criminal convictions in the defendant’s criminal history score is constitutional, meaning that they do not have to be presented in the complaint or decided by a jury. Furthermore, increasing a sentence based on the fact of prior convictions does not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). State v. Ivory, 273 Kan. 44, 47-48, 41 P.3d 781 (2002). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, unless there is some indication the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). There has been no departure indicated by the court, and FewelFs argument fails.
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The opinion of the court was delivered by
Jackson, J.:
The plaintiff association here is the incorporated association of the purchasers of homesites in Somerset Acres West, an exclusive addition in Johnson county. The defendant is the developer of the addition, Mr. Charles B. Daniels, Jr.
The houses and sites in this subdivision were designed to be on the order of “estates” rather than simple lots and houses. The average worth of these houses is said to be in the neighborhood of $50,000.
Restrictions were placed on the use of the lots to maintain the prestige value of the subdivision, which was laid out in lots, blocks and streets with the exception of three tracts, known as Tracts A, B and C. Daniels designed two of the tracts, A and B, for business or a shopping center. The third tract, designated as C, had a small lake and for a number of years Daniels had planned to make this tract into a small park for the use of the public. Representations were made of this intent which, no doubt, aided in the sale of the lots. Daniels offered to convey this park or recreational area to the Homes Association. However, some members of the Association thought the group should first be incorporated to avoid any chance of liability in case of an accident in the park.
When the Homes Association was finally incorporated, Mr. Daniels was asked to convey Tract C to the Association. By this time Daniels had decided not to dedicate Tract C for park usage but to convey it for residential purposes.
The defendants first demurred to the petition and argue that the demurrer should have been sustained. However, it would appear that the demurrer did not state that the defects alleged appeared upon the face of the petition as required by G. S. 1949, 60-705. See Babcock v. Dose, 179 Kan. 298,293 P. 2d 1007.
When Mr. Daniels offered Tract C to the Homes Association, they did not refuse but asked that acceptance be delayed until the group could be incorporated. Furthermore, there were a number of property owners who testified in the hearing of the case who were very desirous of having the park with its lake completed. These gentlemen had been influenced in buying by the promise of the recreational area and the lake. The Homes Association spent between $1400 and $1700 in enlarging and improving the lake and in purchasing furniture for the park.
The appellants urge that the statute of frauds has been violated and that Daniels will not be compelled to carry out the plan. However, it would seem that Daniels is estopped from relying on the statute of frauds. Since plans for the park were created and announced before estates were purchased from Daniels and before the Homes Association had put in considerable money in improving the park site, we do not believe that Daniels may now sell Tract C for home sites. In the appellants’ abstract is included a copy of the brochure which was published by Daniels and was given to all persons who purchased or were interested in purchasing estates. The brouchure contained a map of the subdivision, showing the layout of the addition and indicating clearly “Recreation Area with Lake.”
We are informed that the statute of frauds was not raised in the court below. We believe that the case Brown v. Byers, 118 Kan. 503, 235 Pac. 866, is in point. The second paragraph of the syllabus in the Rrown case reads as follows:
“Under the circumstances of this case, the statute of frauds is not available to the defendants as a ground for reversing the judgment rendered against them in the district court.”
And in the opinion of this case we find the following:
“The plaintiffs rendered the major portion of the services required under the contract, although they were ejected from the farm before the contract was fully performed. They had an interest in the wheat, the com, and the hogs. If Nellie A. Byers is permitted to prevail because the contract did not comply with the statute of frauds, she will commit a fraud on the plaintiffs by inducing them to render service under the contract, by refusing to permit them to comply fully with their contract, by ejecting them from the premises on which the services were to have been rendered, and by not paying them the compensation agreed on.” (pp. 504, 505.)
The lower court provided that Daniels should give a deed to Somerset Acres West Homes Association as set out in the journal entry which reads as follows:
“It Is Therefore Ordered that the Defendant, Charles B. Daniels, Jr., should execute a proper deed to the property in question to the Somerset Acres West Homes Association, Incorporated, upon the payment by the Homes Association to Mr. Daniels of the sum of $297.22, the deed to contain a restriction that the property is to be used for lake site or park only and that when it ceases to be used for that purpose then it shall revert to the grantor, his heirs or assignees. Costs of the action should be taxed equally to the plaintiff and to the defendant.
“/s/ Baymond H. Carr,
“Judge, Division No. 3.”
We believe the trial court should be affirmed. It is so ordered.
Robb, J., dissents. | [
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The opinion of the court was delivered by
Jackson, J.:
This was an original application for a writ of habeas corpus filed by the petitioner as an indigent person and inmate of the state penitentiary.
It should first be noted that in Moore v. Hand, 187 Kan. 260, 356 P. 2d 809, appears another application for habeas corpus filed first with the district court of Leavenworth county, and in which petitioner raised almost the same contentions as are raised in this proceeding.
The facts of how the petitioner was sentenced to the penitentiary are found in the former case and we quote:
“On December 20, 1957, the petitioner, Paul Moore, was duly arraigned in the district court of Butler county in case No. 5879, in which he was charged with the offense of issuing a worthless check. He was represented by counsel and entered a voluntary plea of guilty, and was sentenced to the state penitentiary for tire term prescribed by law. Upon his application he was, on the same day, granted a bench parole and was allowed to go at large under bond.
“On March 16, 1959, for good cause shown, his parole was revoked and petitioner found himself again before the court.
“At the time petitioner entered his plea of guilty on December 20, 1957, in case No. 5879, there also were pending against him two similar informations in the same court, each of which charged an offense under the worthless-check act, and being cases Nos. 5821 and 5823. These two mentioned cases were still pending when petitioner’s parole was revoked. On March 17, 1959, the day following the revocation of his parole, petitioner was duly arraigned in cases Nos. 5821 and 5823. He was represented by counsel and in each case entered a voluntary plea of guilty. He was sentenced to confinement in the state penitentiary in each case.”
The petitioner again argues that he was entitled to have the three sentences with which he was charged run concurrently. We think not. And again we refer to what was said in the former opinion at page 261:
“Petitioner further contends that the prison officials have booked him as serving consecutive sentences, whereas they should be concurrent, and we are referred to G. S. 1959 Supp., 62-2251, which provides that a prisoner who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve such sentence concurrently with the term under which he was released unless otherwise ordered by the court in imposing sentence for the new offense.
“The contention is not good. The mentioned statute is inapplicable. The offenses charged in cases Nos. 5821 and 5823 were not committed while petitioner was at large on parole in case No. 5879 — for, as heretofore related, those charges were pending at the time he entered his plea of guilty in that case. Furthermore, under the provisions of G. S. 1949, 62-1512, the running of the sentences in question consecutively rather than concurrently is proper.”
The case of Beck o. Fetters, 137 Kan. 750, 22 P. 2d 479, was then cited and quoted.
It should be noted that G. S. 1949, 62-1512, refered to in the above statement, has not been repealed and is still in force.
We come to the last proposition raised by petitioner and again what this court has said in the former opinion is pertinent:
“And finally — petitioner contends that he is entitled to his release because he was not brought to trial in cases Nos. 5821 and 5823 until after three terms of court had elapsed following the filing of the informations in those cases, and reliance is had on section 10 of our Bill of Bights which guarantees to every accused a right to a speedy public trial, and on G. S. 1949, 62-1432, which provides that if an accused on bail is not brought to trial before the end of the third term after the information is filed he shall be entitled to a discharge unless the delay was had on his application or occasioned by lack of time to try the case at such third term.
“It is conceded that in cases Nos. 5821 and 5823 more than three terms of court elapsed between the filing of the informations and the pleas of guilty.
“Notwithstanding the constitutional guaranty of a speedy trial, implemented by legislation such as G. S. 1949, 62-1432, above, it is universally held that the right is a personal right which an accused may waive, and that he is not entitled to a discharge for delay occasioned by his own act, application or agreement. (In re Baxter, 121 Kan. 636, 249 Pac. 610; State v. Hess, 180 Kan. 472, 474, 304 P. 2d 474; 14 Am. Jur., Criminal Law, § 138, p. 863; 22 C. J. S., Criminal Law, § 477, p. 732; annotations at 129 A. L. R. 572, 574, and 57 A. L. R. 2d 302, 307.)
“While it is true the record before us is silent with respect to any motions by petitioner for continuances or delay in the mentioned cases, or agreements by him to continuances, the record does show that following his .plea • of guilty in case No. 5879 (at which time the other two cases were pending) he sought, and was granted, a parole. Whether his whereabouts during the time he was on parole were known, is not shown. In any event, his parole was subsequently revoked and he then, being represented by counsel, and without objection, entered his voluntary plea of guilty to the two charges which had been pending.
“The state contends the voluntary pleas of guilty effectively waived any rights possessed by petitioner with respect to the matter of a speedy trial. We believe the contention is good.
“In the case of In re Mote, 98 Kan. 804, 160 Pac. 223, although not factually in point, it was held:
“ ‘The constitutional guaranties in section 10 of the bill of rights, which insure to every person accused of crime a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, etc., are personal privileges which the accused may waive, and when they are freely waived by a person charged with crime, by a plea of guilty in a district court of general jurisdiction, it is too late thereafter to challenge the constitutionality of the statute conferring jurisdiction upon the court which imposed judgment upon him.’ (syl. 1.)
“At page 343 of the annotation in 57 A. L. R. 2d, above, the rule, supported by a number of cases from other jurisdictions, is stated thusly:
“ ‘Defendant’s plea of guilty made without raising the question of the denial of a speedy trial constitutes a valid and binding waiver of the right thereto.’
“The facts and questions before us are not to be confused with those in the recent case of State v. Goetz, 187 Kan. 117, 353 P. 2d 816, which dealt with the provisions of G. S. 1959 Supp., 62-2901, 2902 and 2903.” (p. 262.)
Petitioner makes the claim that his attorney was incompetent. This the record entirely fails to show.
The writ of habeas corpus is denied. | [
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The opinion o£ the court was delivered by
Schroeder, J.:
This is a negligence action based upon the doctrine of attractive nuisance. It is brought by the administrators of the estate of William E. Carter, deceased, pursuant to authorization granted by the probate court. The trial court overruled the joint and separate demurrers filed by the defendants, and appeal has been duly perfected from such orders.
The only question presented is whether the pleadings state a cause of action under the attractive nuisance doctrine.
The petition alleged that the plaintiffs, the parents of the deceased child, had lived on a quarter section of land in Russell County for ten years, and that the Skelly Oil Company had been operating wells on the land as the oil and gas lessee for a number of years. The individual defendants are employees of Skelly Oil Company.
The petition further alleged that in addition to the deceased child, the plaintiffs had four other young children living at the farm home; that Skelly had recently dug a slush pond or pit about one-fourth of a mile from the home at a well location on the quarter section leased by the plaintiffs as farm tenants, and in a field farmed by the plaintiffs; that the well had been re-drilled in order to water flood the Kansas City pay zone, and the new slush pond or pit had been dug only a few days before the 8th day of January, 1961, when William E. Carter lost his life; that the slush pit had been used as a dump for waste material consisting of oil and other inflammable waste material, including a length of worn one-inch rope; and that on January 7, 1961, the defendants set fire to the slush pit and visited the pit once on January 7, and once on January 8, and otherwise left it unattended. The petition then alleged:
“4. That on the afternoon of Sunday, January 8, 1961, decedent, an immature boy of 13 years, between the hours of 2:00 and 6:00 p. m. of said day, while amusing himself, and without the company of anyone, was attracted to and approached said burning slush pit, and apparently was attracted by the fire and an oily 1-inch rope which had been discarded by the employees of defendant Skelly and partially thrown into said slush pit, and then and there attempted to pull it from the pit, or looped it around his body, and got too near to the vertical east wall or side of said slush pit, and either lost his balance, or slipped on the wet, damp soil and fell into said pit, or the edge of said wall crumbled away under his weight causing him to fall into said pit and into the oil fire that was burning therein, the exact facts being unknown to plaintiffs, and set his clothing on fire. That in his efforts to escape, he crossed said pit and crawled out on the opposite side, a distance of about ten feet away from the edge of the pit, before succumbing to said fire.
“5. That in connection with such operations, Skelly and the other defendants were guilty of acts of negligence and carelessness which were the sole and proximate cause of the severe and fatal bums sustained by said William E. Carter, deceased, all of which were directed, approved and ratified by Skelly, as follows, to-wit:
“(a) In failing to make disposition of the slush pit refuse and oily and inflammable substances therein by methods other than by fire or burning.
“(b) In failing to realize that an open unguarded fire would be particularly attractive to boys of immature years, and as such, was an attractive nuisance to them; and that the Carter family had young children living in the vicinity of and in close proximity to said oil well and slush pit, all of which was well known to said defendants.
“(c) In establishing and maintaining a place attractive to children and persons of immature years, well knowing that said burning pit was fraught with hazard and danger to such persons.
“(d) In failing to realize that a slush pit fire flares into unusual and intense activity when the surface of the burning pit is stirred, disturbed or agitated, and to take proper precautions against such occurrences.
“(e) In constructing and maintaining an open slush pit with vertical east and west dirt walls wholly unsupported or guarded against undermining by the action of water and other fluids in said pit and winter-time freezing and thawing, thereby making such walls subject to erosion and crumbling and cave-ins.
“(f) In maintaining an open slush pit and using it as a dump for waste materials such as oil, ropes and other obstacles, and thus increasing the fire hazard of such pit.
“(g) In failing to erect and maintain warning signs of any kind in connection with such slush pit, particularly after it had been set on fire.
“(h) In the conduct of said foreman in setting fire to said slush pit without keeping or maintaining anyone as a guard to look after such fire.
“(i) In failing to erect guards, ropes, or other obstructions to prevent approach to the vertical walls of said slush pit.
“(/) In failing to enclose said slush pit and to post adequate barricades and obstructions to prevent children and minors from near approach to said burning pit.
“(7c) In failing to take safety precautions of any kind to warn children and others of dangers inherent in a slush pit fire involving highly inflammable oily refuse and particularly in connection with the unsupported walls of said pit.
“(1) That said slush pit at tire time hereinafter referred to was entirely open, unguarded and unenclosed by any fence, barricade or obstructions, and particularly the vertical dirt walls thereof, to prevent children and persons of immature years from approaching the edge of said pit.
“6. That by reason of all the acts of negligence and failures to act on part of defendants as aforesaid, he endured and incurred severe, excruciating pain and suffering, and mortal shock, resulting in his death, and that by reason of the premises aforesaid, said decedent suffered intense agony, pain and suffering and indured terrific and mortal shock to his entire system, both bodily and mentally, and finally resulting in his death, all to his damage in the sum of $50;000.00.”
The rules applicable to the instant appeal have been fully stated and discussed in the recent case of Brittain v. Cubbon, 190 Kan. 641, 378 P. 2d 141, and in the cases cited therein. These rules will not be restated herein, and further discussion will proceed on the assumption that the reader has familiarized himself with the decision in Brittain.
The appellants contend a slush pit is not an attractive nuisance. In support of this argument the appellants cite decisions and authorities holding: (1) That common and useful appliances or conditions are not so unusual and alluring to children as to furnish the essential elements of dangerous attraction and invitation (Brennan v. Kaw Construction Co., 176 Kan. 465, 271 P. 2d 253; McGaughey v. Haines, 189 Kan. 453, 370 P. 2d 120; Bruce v. Kansas City, 128 Kan. 13, 276 Pac. 284; Rhodes v. City of Kansas City, 167 Kan. 719, 208 P. 2d 275; and Zagar v. Railroad Co., 113 Kan. 240, 214 Pac. 107); (2) that if the danger involved is patent the object' does not fall within the doctrine of attractive nuisance (Brennan v. Kaw Construction Co., supra; Shank v. Peabody Cooperative Equity Exchange, 186 Kan. 648, 352 P. 2d 41; and McGaughey v. Haines, supra); (3) that open fires are not an object of attractive nuisance (W. F. Bradley Lumber Co. v. Crowell, 28 Ala. App. 12, 178 So. 66; Zaia v. Lalex Realty Corp., 287 N. Y. 689, 39 N. E. 2d 300; Rush, Appellant v. Plains Township, 371 Pa. 117, 89 A. 2d 200; Fitzmaurice v. Connecticut Ry. & Lighting Co., 78 Conn. 406, 62 Atl. 620; Harper v. Cook, 139 W. Va. 917, 82 S. E. 2d 427; Smith v. Illinois Cent. R. Co., 177 Iowa 243, 158 N. W. 546; Erickson v. Great Northern Ry Co., 82 Minn. 60, 84 N. W. 462; Lentz v. Schuerman Building & Realty Co., 359 Mo. 103, 220 S. W. 2d 58; Eason v. State, 104 N. Y. S. 2d 683, aff'd 113 N. Y. S. 2d 479; Madden v. Railroad, 76 N. H. 379, 83 Atl. 129; Hancock v. Aiken Mills, Inc., 180 S. C. 93, 185 S. E. 188; Thiel v. Bahr Construction Co., 13 Wis. 2d 196, 108 N. W. 2d 573; Brannon v. Harmon, 56 Wn. 2d 826, 355 P. 2d 792; and Skelton v. Sinclair Refining Company [Okla.] 375 P. 2d 948); and (4) that an oil and gas lessee does not have any duty to erect a fence or guard around a slush pit. (Mid-Continent Petroleum Corp. v. Rhodes, 205 Okla. 651, 240 P. 2d 95; Pitzer & West v. Williamson [Tex. Civ. App.] 159 S. W. 2d 181; Sinclair Prairie Oil Co. v. Perry [Tex. Civ. App.] 191 S. W. 2d 484; Benefiel v. Pure Oil Co., 322 Ill. App. 5, 53 N. E. 2d 726; Baker v. Davis [Tex. Civ. App.] 211 S. W. 2d 246; and 65 C. J. S., Negligence, §29 [14], p.479.)
We have studied the decisions cited by the appellants but cannot escape the conclusion that the factual situation, in each instance, must be examined to determine whether an attractive nuisance exists.
The appellants’ first point finds contradiction in the cases. Common and useful appliances or conditions have often been held to be attractive nuisances. For example, in Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4, a boy fourteen years of age was caught in exposed machinery on private grounds, where the machinery was unprotected from the visits of trespassing children, and the owner who had knowledge that children and others were accustomed to frequent said grounds and to climb upon the structures supporting the dangerous appliances was held liable in damages.
In K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686, the court affirmed a jury verdict in which the railway company was held liable for leaving a turntable unlocked in an area where children played, where the turntable was not watched, guarded or fenced in.
The attractive nuisance doctrine is based upon the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created, and where he should have anticipated that children would be lured into the danger. (Brittain v. Cubbon, supra.)
In Moseley v. City of Kansas City, 170 Kan. 585, 228, P. 2d 699, the court said:
“It is not everything which may attract a child that can be regarded as an attractive nuisance, for there is no limit to the class of objects which may be attractive to a normal child even though he be less than ten years of age (45 C. J. p. 765.) To hold otherwise would place an unreasonable burden upon the owner of almost every kind of property capable of causing personal injury under any circumstances. The condition or appliance must be something unusual and which is of a nature rendering it peculiarly or unusually attractive or alluring to children. The object must be one and so situated that the owner knew, or should have known, it was attractive to children of tender years. . . .” (p. 591.)
Here the petition alleged the Carter family had young children living in the vicinity of and in close proximity to the slush pit, all of which was well known to the appellants. It further alleged the appellants established and maintained a place attractive to children and persons of immature years, well knowing that the burning pit was fraught with hazard and danger to such persons; and that the appellants failed to take any measures designed to prevent children from near approach to the burning pit.
On their third point the appellants contend open fires are not an object of attractive nuisance. The petition in the case at bar alleges a slush pit fire, and it is a matter of common knowledge that oil burns emitting a dark black smoke. Such a fire would attract a curious child. Furthermore, boys have a natural affinity for fires. Since the parents of the deceased child in the case at bar were the agricultural lessees on the land on which the slush pit was burning the child had a legal right to be in the area of the slush pit. This enabled him to see the fire and rope without trespassing, and he was attracted to it. The decedent and his parents had lived on the land in question for ten years, and Skelly had been operating wells on the land for a number of years. In addition, there were five children living at the home, and the appellants knew the family had young children living in the area of and in close proximity to the oil well and slush pit.
In the case at bar the slush pit, which was dug as a trench with vertical walls, was located near the home of the child, and it could have been easily barricaded or fenced.
It was held in Roman v. City of Leavenworth, 90 Kan. 379, 133 Pac. 551, that a smouldering city dump fire was an attractive nuisance. There a boy eleven years of age, while playing on a city dump, fell into a smouldering fire, such dump being described by the court as clearly an attractive nuisance. The corut gave correct instructions at the request of the plaintiff, but also gave several at the request of the defendant which were erroneous. The court held because the jury, which found for the defendant, was as likely to be influenced by the wrong as by the right instructions, the plaintiff did not have his case presented under a proper interpretation of the law, and a new trial should be granted. There the maintenance of the dump by the city and not its establishment was said to be material, and the city was required to use reasonable care to keep children away and prevent them from being injured.
A distinction has been made between natural conditions, such as a steep bluff, and artificial conditions created by man. (See, Zagar v. Railroad Co., supra; and Brittain v. Cubbon, supra.) There is little question but that the allegations of the petition herein disclose an artificial condition.
The cases relied upon by the appellants on their fourth point are from foreign jurisdictions and relate to the fencing of slush pits to prevent injuries to cattle. The rule in Oklahoma and Texas does not require the lessee to fence off tanks, machinery, slush pits, etc. to prevent livestock from having access to them.
The majority of the members of this court are of the opinion that the petition states a cause of action under the doctrine of attractive nuisance. Accordingly, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action involving a rural intersection collision in which both drivers were killed. There were no witnesses to the accident. The case was tried to a jury which was dismissed because it was unable to reach a verdict. Appeal has been duly perfected from orders overruling the defendant’s demurrer to the plaintiffs evidence and motion for a directed verdict.
The only question presented is whether upon the evidence the plaintiff’s decedent was guilty of contributory negligence as a matter of law.
This action is a wrongful death action brought by the surviving widow of George O. McMurphey for the benefit of herself and the minor children of McMurphey to recover damages resulting from the death of McMurphey in a motor vehicle collision. The action was instituted by the filing of a “petition for allowance of demand for wrongful death” in the probate court of Lyon County, Kansas, in the estate of John Roth, deceased. Roth was the driver of the other vehicle involved in the collision. The collision resulted in the death of both McMurphey and Roth, the drivers of the two vehicles involved. The claim was transferred to the district court of Lyon County pursuant to G. S. 1961 Supp., 59-2402a.
The motor vehicle collision occurred at a rural intersection located southwest of Emporia, Kansas. The intersection was formed by the crossing of two county roads of substantially the same width and type. Both roads were surfaced with gravel. No stop signs or traffic control signs were present at the intersection as far as the vehicles involved in this collision are concerned.
On the 29th day of June, 1961, McMurphey, the husband of the plaintiff (appellee), was driving a 1961 Chevrolet gravel truck north on a north-south county road. The truck was empty and weighed 9,500 pounds without the driver. McMurphey had just unloaded his truck and was returning to the source of gravel for another load. He was familiar with this route and intersection, having followed the same route approximately eighty-six times within three weeks prior to the date of the collision.
Roth, driver of the other vehicle, was driving a Buick passenger automobile headed east on an east-west county road. He likewise was familiar with these roads and the intersection involved since he owned a farm a few miles distant from the intersection. On the morning of the collision he was returning from a trip to his farm. There were no passengers in either of the vehicles involved.
Although the petition speaks of a bank of weeds along the south side of the east-west road, the evidence was undisputed that no fence, brush or other obstruction to view was present on the south side of the east-west road for a distance of 300 feet west of the intersection. At this point there was situated a clump of trees and brush on the south side of the road which did obstruct the view. No fence, brush or other obstruction of any kind existed with respect to the north-south road. The intersection, therefore, was completely open from the west for eastbound traffic and from the south for northbound traffic, except for the trees and brush which were located 300 feet west of the intersection.
There was a drop in elevation in the east-west road of 6 inches at 100 feet west of the intersection, of 2 feet at 200 feet west of the intersection, and of 4/2 feet at 300 feet west of the intersection. There was a gradual increase in elevation of 2% feet from the intersection to a point 400 feet south of the intersection on the north-south road, thus giving McMurphey an advantageous view of the intersection.
At the time of the collision all loaded gravel trucks approached the intersection from the east on the east-west road in question and turned south at the intersection, proceeding south on the north-south road. All unloaded trucks proceeded north on the north-south road through the intersection and then turned east on another road some distance north of the intersection.
The only witness who saw either of the vehicles shortly before the collision was another truck driver who was employed by Lyon County on the same job with McMurphey. He testified he came into the intersection from the east with a load of gravel and turned south at the intersection. He proceeded south and when he was about 150 yards south of the intersection, he met McMurphey in his truck headed north. He thought McMurphey was going about 30 miles per hour at that time, but did not see his truck thereafter nor did he see or hear the collision.
Both vehicles proceeded into the intersection, reached the inter section at substantially the same time and collided, resulting in the death of both drivers. Both vehicles had proceeded 12 feet into the intersection when they collided. The front of the truck was over half way across the intersection when its left front bumper collided with the right front bumper of the Buick. The force of the Buick (weighing about half as much as the truck) turned over the truck and deflected it at a 45-degree angle to the northeast. The truck went 34 feet 8 inches where it struck and knocked down a utility pole and came to rest on its side. The Buick came to rest in an upright position northeast of the truck.
No brake marks were made by the truck prior to the impact, although the investigating officer stated he looked carefully for such marks. Brake marks were found behind the Buick car. These marks began 64 feet west of the point of impact and continued as solid marks in a straight line to the point of impact. The Buick was traveling in the north half of the east-west road at the time of the collision and the Chevrolet truck was traveling in the east half of the north-south road.
The appellee produced testimony of a police officer who was permitted to testify as an expert. He was asked a lengthy hypothetical question which assumed, among other things, that the McMurphey truck was traveling 30 miles per hour at the time of the impact. The witness testified that based upon the assumption the McMurphey truck was going 30 miles per hour at the time of impact, in his opinion, the Buick was going 76 miles per hour immediately before Roth applied the brakes on the Buick. He testified further that if the truck was going at a speed other than 30 miles per hour, as he had assumed, his calculation would be in error.
After the demurrer to the appellee’s evidence was overruled, the appellant presented the testimony of a physicist, together with other testimony. The physicist testified in answer to a hypothetical question based on facts in evidence that in his opinion the Chevrolet truck was going at a faster rate of speed than the Buick.
At the conclusion of the appellant’s testimony the demurrer to the appellee’s evidence was renewed and a motion for directed verdict made. Both were overruled. Appeal was duly perfected from adverse rulings.
The appellee’s claim is based upon G. S. 1961 Supp., 60-3203, which provides in part as follows:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. . . .”
It is thus apparent the appellee may recover for the death of George O. McMurphey only if McMurphey might have successfully maintained an action against the Roth estate had McMurphey lived, and conversely, if McMurphey could not have successfully maintained an action in the Roth estate had he lived, appellee may not now do so. (Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846.) Therefore, contributory negligence of McMurphey would bar recovery by the appellee. (Sullivan, Administrator v. Davidson, 183 Kan. 713, 332 P. 2d 507.)
The appellant contends that the evidence introduced by the appellee in support of her claim shows, as a matter of law, that Mc-Murphey did not exercise that degree of care required of him for his own protection, and that appellant may take advantage of this evidence which shows contributory negligence on the part of Mc-Murphey by demurrer. (Cruse v. Dole, 155 Kan. 292,124 P. 2d 470; Ray v. Allen, 159 Kan. 167, 152 P. 2d 851; and Revell v. Bennett, 162 Kan. 345,176 P. 2d 538.)
In support thereof the appellant relies upon the facts heretofore stated, and concludes that McMurphey did not observe the approach of Roth’s Buick, or if he did observe the approach of the Buick, he nonetheless proceeded into the intersection.
The appellant admits the instant death of both drivers and the absence of eye witnesses renders it difficult to fully account for the action and conduct of McMurphey immediately prior to and at the time of the collision, but argues the evidence of the appellee’s witnesses was sufficient to support the statement of facts.
The appellant relies on Orr v. Hensy, 158 Kan. 303, 147 P. 2d 749, which is said to be remarkably similar to the case at issue, both with respect to the factual situation and the legal principles involved. In many respects the facts are similar to those in the case at bar with one exception, and that is that both drivers in the Orr case were living at the time of trial, and the plaintiff himself testified when he sought to recover damages for his injuries.
In the Orr case the plaintiff testified that he looked when he was 80 or 90 feet from the intersection and that he did not see the defendant’s automobile approaching, but there was nothing to obscure his view or which would have prevented him from seeing it. The court said when a litigant has a duty to look and testifies that he did look but did not see what was plainly to be seen, such ineffectual looking has no more legal significance than if he had not looked at all. The court concluded “since it was negligence for defendant to fail to observe plaintiff’s automobile as it approached the crossing from the east how can we avoid saying it was negligence for plaintiff to fail to observe defendant’s automobile as it came from the north?” (p. 309.)
In a case such as the one at bar, when there are no eye witnesses, the appellee is entitled to prove her case and rely upon circumstantial evidence and the physical facts of the collision. (Briggs v. Burke, 174 Kan. 440, 257 P. 2d 164.) Under the circumstances of this case the testimony of the truck driver who saw McMurphey about 150 yards from the intersection proceeding at a speed of approximately 30 miles per hour was properly admitted into evidence. (Siegrist v. Wheeler, 178 Kan. 286, 286 P. 2d 169.) The officer’s testimony that the speed of the Roth automobile, based upon all the physical facts, was 76 miles per hour was also properly admitted. (Cherry v. State Automobile Insurance Association, 181 Kan. 205, 310 P. 2d 907.) The fact that an automobile going 76 miles per hour travels 112 feet per second may be judicially noted. (Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295.) It may thus be noted when an automobile goes 76 miles per hour it would travel 300 feet is less than three seconds.
Another basic rule of law which benefits the appellee on this appeal is that there is a presumption a deceased person used due care for his own safety. On facts substantially similar to those in the case at bar, this court in Byas v. Dodge City Rendering Co., 177 Kan. 337, 279 P. 2d 252, said:
“. . . We think they show a situation concerning which reasonable minds might differ on the question of which driver had the right of way at the intersection and whether each maintained a proper lookout for approaching traffic. These factors, combined with the legal presumption that a deceased will be presumed to have exercised due care for his own safety in the absence of evidence to the contrary, were sufficient to withstand the demurrer and justified the submission of the facts to the jury under the well-established rule pertaining to such matters.
“The lower court did not err in overruling defendant’s demurrer to plaintiff*s evidence.” (pp. 340, 341.)
The Byas case controls the decision herein.
Considered most favorably to the appellee the evidence gives the appellee the benefit of the emergency doctrine. In Carpenter v. Strimple, 190 Kan. 33, 372 P. 2d 571, the court said:
“. . . for that matter, the jury may have believed that when appellant failed to slow down for the intersection appellee was confronted with an emergency, just prior to or after he entered the intersection. In such a situation the rule, also well-established, is that an operator of a motor vehicle, otherwise obeying the law, who is confronted with a sudden emergency and who, because of want of time in which to form a judgment, acts according to his best judgment but omits to act in a most judicious manner, is not guilty of contributory negligence. . . .” (p. 40.)
In the instant case McMurphey was approaching the intersection from the right and presumably at a reasonable rate of speed. He had a right to assume that an automobile approaching from his left would be traveling at a reasonable speed and would yield the right of way. An operator of a motor vehicle upon a public highway has the right to assume that others using the highway will observe the laws of the road, and until he has knowledge to the contrary he is not guilty of negligence in proceeding. (Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359; State Farm Mutual Automobile Inc. Co. v. Cromwell, 187 Kan. 573, 358 P. 2d 761; and Jarboe v. Pine, 189 Kan. 44,366 P. 2d 783.)
If McMurphey saw Roth immediately upon the emergence of his vehicle from behind the clump of trees and brush, he would have had less than three seconds to react, apply his brakes on a graveled road and stop his truck before entering the intersection. Considering the evidence most favorably to the appellee and giving credence to the rules of law applicable under such circumstances, we think the question of McMurphey’s contributory negligence is a matter for the jury to determine.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellant was convicted of statutory rape. The object of appellant’s attention was his own stepdaughter, thirteen years of age. It is conceded that Wesley Cooper Miles, Sr., normally slept with his wife Julia Ann and also with Dora Charlene Ogle, his wife’s daughter.
Dora testified that on the morning of July 28, 1961, she was occupying the bed with only her stepfather and that both were nude. That she had sexual intercourse with her stepfather on the bed and that her mother had been present at the time the act was done.
It is true that on cross examination, Dora admitted that she had told different stories about this matter at different times.
Although there seems to be no doubt that Julia Ann, wife of defendant, signed the complaint against her husband, she testified in his defense at the trial.
Detective Mangels of the police force was questioned as follows:
“Q. Could you tell the Court and jury your conversation in the afternoon of the 28th of July with Mr. Miles in that squad room?
“A. My conversation with Mr. Miles was over a statement that I had read that had been given me by Dora, his stepdaughter, and I read this statement and in the presence of both Mr. Miles and Mrs. Miles and Dora Ogle and asked Dora if it was a true statement and she verified it was and asked Mr. Miles what he had to state in regards to these accusations that the girl had made.
“Q. What was his reply?
“A. He went on to say that previous to them coming to Hutchinson, shortly before coming to Hutchinson, why—
“Mb. Wyman: Objection, I don’t think this is responsive.
“The Court: Yes, I think that is responsive, the judgment will be overruled
“(Witness continues with his answer:)
“ — He advised that he and his wife had previously lived in Great Bend and that she had, Mrs. Miles, had talked to him about when her daughter could come to live with them. Whether it would be permissible, if he would go along with the idea of rubbing her body and having intercourse with this daughter as this is, had helped her considerable and he advised that whatever, when the daughter come to live with them, why he, that he had committed these acts of intercourse with his stepdaughter, Dora Ogle. At this time he was asked why he hadn’t admitted these things earlier in the day when he had been asked about having intercourse with the stepdaughter and he said, that the reason he hadn’t admitted these before was he didn’t want to get his wife Julia involved in this. Since this girl had admitted now what he, that he figured he could go on and wouldn’t be responsible for her becoming involved.
“Q. And he did not make this statement until after you read the statement of Dora Charlene Ogle, is that correct?
“A. That is right.”
The appellant argues three matters as error. The first proposition is that the assistant county attorney offered himself as a witness. Appellant obj'ected to Mr. Smith being allowed to testify as to the statements made by Julia Ann Miles. The court on finding that two detectives were also present when Julia made her statement sustained the objection and excluded Mr. Smith as a witness. It had been said that Mr. Smith would have withdrawn from the case as an attorney as soon as he gave his testimony. But the rule is that the attorney must withdraw before testifying, and the court was quite right in excluding Mr. Smith as a witness.
Appellant now objects that Mr. Smith was allowed to make part of the argument at the close of the case. The trial court held that he could do so, because he had not been a witness nor had he testified to a material matter. The rule is quite clear in this state that when an attorney finds he must testify for his client or against the opposing party, he must withdraw immediately as attorney. In the case of State v. Bechtelheimer, 151 Kan. 582, 100 P. 2d 657, we had an illustration which is quite similar to the case at bar. In the Bechtelheimer case, the late Elisha Scott offered to testify on behalf of his own client. However, the court refused to allow him to testify as long as he was in the case as an attorney. Mr. Scott did not testify although the defendant in that case had three other attorneys. Mr. Scott continued to act on behalf of his client and was chief counsel on the appeal to this court. No one argued on the appeal that Mr. Scott was not eligible to continue to act in the case since he had not been a witness although he had endeavored to be. Mr. Scott did not offer to withdraw as counsel. We think Mr. Smith was no more a witness in this case than Mr. Scott was in the cited case. We find no error here.
Appellant’s next objection is that statements of Dora and of appellant’s wife were read to the jury along with certain statements by the appellant. We have quoted some of the statements above.
In the case State v. Cruse, 112 Kan. 486, at page 494, 212 Pac. 81, it was said:
“Another witness testified that he and the defendant took defendant’s mother home in a car the morning after the tragedy and that the following conversation was had in defendant’s presence:
“'Q. Did you say you took Mrs. Cruse, the mother of Mr. Cruse, home that morning, did you? A. Yes, sir.
“ ‘Q. Now, was Mr. Cruse with you at that time? A. Yes, sir.
“ ‘Q. Mr. Cruse went home with his mother? A. Yes, sir.
“ ‘Q. Was there any conversation took place between any of you when you were taking them home that morning? A. Yes] sir,
“ ‘Q. What was that conversation? ... A. Mrs. Cruse says, “It scared me when George called me; I could not imagine what had happened, because you know they led such a stormy life.”
“ ‘Q. Was Mr. Cruse present? A. Mr. Cruse was in the car.’
“ [Objection — overruled. ]
“This evidence falls within the rule that statements to the prejudice of an accused, made in his presence and which he tolerates without resentment, explanation or denial, are ordinarily admissible as some evidence of his consciousness of guilt. The leading authorities on this subject are elaborately ■discussed in State v. Mortensen, 26 Utah, 312, 73 Pac. 562, and section 4 of the syllabus therein reads:
“ ‘Defendant was suspected of having killed deceased, and after deceased’s body had been dug up, and while it was lying in a patrol wagon, deceased’s father said, while defendant was within six or eight feet from him and near the vehicle, as though talking to the body, “He murdered you for a receipt that was on your body representing $3,800, and you never ran away, nor he never gave you a dollar.” Held, in a prosecution of defendant for the homicide, that such statement by the father and the fact that defendant said nothing in reply, but hung his head and looked on the ground, was admissible as an admission indicative of guilt.’
“See also, 16 C. J. 631-633; 2 Wigmore on Evidence, pp. 1253-1261.
“This evidence as well as the testimony that defendant had remained silent when reproached and chided by his wife’s relatives for mistreatment of his wife, for beating her and kicking her out of bed, was admissible under the rule announced in The State v. O’Neil, 51 Kan. 651, 83 Pac. 287:
“ ‘Ill treatment and previous assaults by husband on wife are admissible to prove motive, in cases of marital homicide.’ ”
See State v. Boswell, 119 Kan. 670, 240 Pac. 848; and also State v. Davis, 133 Kan. 571, 300 Pac. 1114. The point here involved is covered in the second paragraph of the syllabus and corresponding part of the opinion in the Davis case. And further see annotation 80 A. L. R. 1235.
Lastly, appellant objects to the testimony of Garland E. Lemley, who was connected with a private investigating company. He testified that he talked with Julia Miles on the morning of the 28th of July. He said he noticed a large bruise on her left arm, extend ing almost from the elbow to the shoulder. He stated that Julia said she received the bruise from her husband, which was contrary to the evidence she gave when she testified in defense of her husband at which time she said the police twisted her arm and made her sign the complaint in this case. As to a rebuttal witness, we believe it was permissible to admit the above statement. In Williams v. Hendrickson, 189 Kan. 673, at p. 677, 371 P. 2d 188, it is said: “It is a well-established rule in this jurisdiction that prior statements must be inconsistent with the witness’ testimony for purposes of impeachment. (Hancock v. Bevins, 135 Kan. 195, 9 P. 2d 634.)”
We have dealt with appellant’s specifications of error and find that the trial court committed no reversible error. We must hold that the judgment of conviction is affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal primarily involves certain orders of the trial court. The first, dated July 10, 1962, overruled separate motions of the two defendants to strike count two of plaintiff’s amended petition, which was an amendment thereto, and the second order, dated July 12, 1962, overruled the separate demurrers of the defendants attacking the amended petition and also count two thereof.
Plaintiff filed his petition against defendant, One-O-One Trailer Rental Company, Incorporated, and the corporation filed an answer. With permission of the trial court, plaintiff added Lee Roy Pittman as a party defendant and filed his amended petition alleging ten specific acts of negligence against the corporation and nine specific acts of negligence against defendant Pittman. The corporation filed its separate answer to the amended petition and plaintiff filed his reply thereto. Pittman also filed his answer and plaintiff thereupon moved the trial court for an order allowing him to plead the doctrine of res ipsa loquitur as a second count to his amended petition. This motion was sustained and thus we have before us an amended petition with the first count based on specific acts of negligence and the second count based on res ipsa loquitur.
The corporation filed its motion to strike count two because of improper joinder of causes of action with count one; count two was inconsistent with count one; both counts were mutually self-destructive in that count one set forth specific acts of negligence which disproved the truth of count two; count two attempted to plead under res ipsa loquitur and specific acts of negligence were alleged under count one; count two cannot stand as to this defendant, and finally, count two was surplusage. Pittman’s shorter motion to strike was substantially the same.
The trial court overruled both motions and according to the record, Pittman only was granted twenty days in which to answer. Separate notices of appeal from the trial court’s orders were filed by defendants.
The facts and circumstances gleaned from allegations of the amended petition are that on November 20, 1960, about 4:30 p. m. defendant Pittman rented a hitch and tow-bar unit from the defendant corporation for the express purpose of towing the plaintiff automobile from near Vienna, Missouri, to Kansas City, Kansas. The corporation, by and through its agent, attached the hitch to the rear bumper of Pittman s automobile. A part of the hitch consisted of two chains which, when tightly drawn together, prevented any play in the hitch while the tow-bar was attached. Pittman attached the tow-bar unit to the front bumper of the plaintiff automobile and proceeded toward Kansas City, Kansas. Plaintiff, a thirteen year old boy, was asleep in the rear seat of the plaintiff automobile. The chain holding the left upper clamp broke and snapped causing the plaintiff automobile to swerve and turn over in the ditch injuring plaintiff. The corporation’s business consisted of renting such units as the one here involved.
Since the ten grounds of negligence alleged on the part of the corporation and nine grounds of negligence on the part of Pittman are actually specific acts of negligence, we shall not set them out or discuss them herein.
The amendment to the amended petition, or count two, adopted paragraphs one to seven, inclusive, of count one, and in paragraph eight further stated:
“8. That said accident would not have occurred and said chain holding the left upper clamp would not have snapped and broken if due care had been used by the defendants in the installation, servicing, maintenance and use of said tow-bar unit, the details of which are exclusively within the knowledge of the defendants and not within the knowledge of plaintiff. Plaintiff does not know and therefore cannot allege or specify acts of negligence of which the defendant, One-O-One Trailer Rental Company, Inc., by and through its agents and employees, and the defendant, Lee Roy Pittman, had been guilty, and which are the proximate cause of the injuries to plaintiff, but that plaintiff alleges and states that the accident hereinabove described in detail would not have taken place except for some act or acts of negligence on the part of the defendants, and each of them, in the installation, servicing, maintenance and use of said tow-bar unit. At all times material herein said tow-bar unit was solely and exclusively within the possession of and under the control of the defendants, and during the time the negligent acts of defendants occurred.”
From the record it appears the parties are in substantial agreement that the question involved in this appeal is whether count two states a cause of action under the doctrine of res ipsa loquitur and whether, as such, it can be pleaded along with the first count setting out specific acts of negligence. It should be made very clear that this is a demurrer by each of the two defendants to the amended petition, and the only matters to be considered by the court at this time are those appearing on the face of such petition. In the recent case of Robinson v. Nightingale, 188 Kan. 377, 362 P. 2d 432, where multiple defendants were in successive and exclusive management and control of their respective preparation, supply and construction of a hoist to aid in unloading truck loads of wheat at the defendant grain company’s elevator, and the hoist suddenly fell crushing the cab of the truck and injuring the plaintiff therein, it was held that the petition sufficiently alleged facts and circumstances surrounding the occurrence to warrant application of the doctrine of res ipsa loquitur against the appealing defendant. The Robinson case discussed most, if not all, of the authorities cited by the parties herein and at page 380 restated the three elements necessary to be alleged to establish a prima facie case in order to warrant the application of the doctrine of res ipsa loquitur which are (1) the defendant must have management and control of the instrumentality which, at that time, or later, caused the injury; (2) the circumstances must be such that according to common knowledge and the experience of mankind, the injury would not have occurred without negligence on the part of those having management and control; and (3) plaintiff’s injuries resulted from the occurrence and he was free from fault, citing Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501. The Robinson opinion also stated the doctrine of res ipsa loquitur may, under proper circumstances, be applied to multiple defendants and that the causal relationship to the injuring instrumentality is sometimes extended back through mesne defendants to the manufacturer or original supplier.
Under the allegations of the amended petition in our case it appears the tow-bar unit was solely and exclusively within the possession of and under the control of the defendants during the time the acts of the defendants occurred. The authorities on this subject were well discussed in Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387, wherein plaintiff was called to repair a tire on defendant’s truck and defendant’s truck suddenly moved forward down an incline and pinned plaintiff between its front end and the side of plaintiff’s repair truck.
In Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, a six year old girl was seriously injured when a bottle of Pepsi-Cola exploded and fragments therefrom lacerated her nose and entered and punctured her left eyeball. The manufacturer, distributor, and local dealer were held to be properly joined as defendants in the action wherein the plaintiff relied upon the doctrine of res ipsa loquitur, and the addition of a second cause of action relying upon negligent failure of an implied warranty was held not to render the petition demurrable.
Defendants here make a point that the rule in the Nichols case should apply more particularly to food stuffs intended for human consumption. While it is true the Nichols case dealt with a beverage intended for human consumption, the injury was not the result of the consumption thereof, and we do not place such a narrow interpretation thereupon in view of the following concise language used therein which may be said to have general application in similar cases where plaintiff is injured through no fault of his own:
"From the petition it is certain plaintiff received a severe injury without fault of her own. If the proper parties are made defendants the court should not be too particular about the theory upon which she recovers. The petition should be considered as a whole. In fact, the so-called second cause of action makes all of the first cause of action, except the seventh paragraph, a part of it by reference. The seventh paragraph of the first cause of action is the one that specifically pleads the doctrine of res ipsa loquitur. The second paragraph of the second cause of action is the one that pleads a breach of implied warranty. Since the breach of an implied warranty usually results from negligence of defendants or some of them, we see no detriment resulting to defendants from the fact that plaintiff pleads negligence upon which she relies in paragraph seven of the first cause of action.” (Our emphasis.) (pp. 630-631.)
We consider our case much stronger than either the Lamb or Robinson cases, and in view of the foregoing quotation from the Nichols case, we conclude the essential elements of res ipsa loquitur were sufficiently alleged in count two and that it could be pleaded along with count one, and the trial court, therefore, did not err in its orders overruling defendants’ separate motions to strike or in overruling their separate demurrers to the amended petition.
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The opinion of the court was delivered by
Fatzer, J.:
This action was commenced on May 15, 1959, to foreclose a mechanic’s lien and to establish and foreclose an equitable mortgage. The pertinent facts are summarized.
On September 18, 1957, the plaintiff lumber company entered into a written contract with W. H. Bedore and Georgine Bedore, his wife, Raymond Bedore and W. H. Bedore, a partnership d. b. a. Bedore Brothers, building contractors, hereafter referred to as the Bedores, whereby the parties agreed that the plaintiff would purchase Lot 15, Block “C,” Meredith-Ruff Addition to the City of Plainville, for the sum of $750 and place fee title thereto in the names of W. H. Bedore and Georgine Bedore, and that the Bedores would build a new house thereon, purchasing all building materials from the plaintiff. It was agreed that the Bedores would repay the $750 oút of the first disbursal under a construction loan to be obtained on the property. The lot was purchased and the house was completed in mid-January, 1958. A similar arrangement was made between the parties with respect to Lots 12, 13, 14 and 16 in the Meredith-Ruff Addition, and before, during and after the time the house was being built on Lot 15, houses on the other lots were built or were being constructed. On September 19, 1957, the Bedores executed and delivered their real estate mortgage on Lot 15 to the Hays Building and Loan Association in the sum of $6,500. The mortgage was a construction loan and advances were to be made from time to time to pay for the materials as the building progressed. The plaintiff knew the mortgage was executed and duly recorded since it forwarded the mortgage to Stockton for recording on September 24,1957.
On January 21, 1958, the Bedores sold the completed house on Lot 15 to Curtis Armbrister and Karen Armbrister, his wife, for the sum of $8,749 under a written contract, and they took possession on January 25, 1958. Sometime after the commencement of the action, the Bedores executed and delivered to the Armbristers their general warranty deed dated March 25,1960, which was recorded on March 31,1960.
Oh January 30, 1958, the loan association effected a final settlement with the Bedores and delivered its check for $3,880.67, payable to the Bedores and the plaintiff, which represented the balance due under the loan. The Bedores endorsed the check and delivered it to the plaintiff without instructions as to the application of the proceeds on their various accounts with the plaintiff, and the plaintiff, instead of applying the full amount of $3,880.67 to the account for Lot 15, applied $594.68 to pay the account on Lot 12 and $1,951.40 to pay the account on Lot 14, and applied the balance of $1,334.59 to the account of Lot 15 leaving an unpaid balance of $3,568.70.
On May 19, 1958, the plaintiff filed notice of its mechanics lien in the office of the clerk of the district court against Lot 15 in the amount of $3,568.70 supported by its itemized account of materials sold to the Bedores for the construction of the dwelling thereon.
The case was tried to the court on the plaintiff’s amended petition to which the Bedores filed their verified answer denying generally the allegations of the amended petition, and alleged that the plaintiff did not furnish or deliver the items noted in the verified account, tickets Nos. 06563 and 08410 allegedly delivered on January 22, 1958, and on May 7, 1958, respectively, and further, that if the plaintiff sold and delivered the items in the two accounts, the same were not expended or used in the construction of the house on Lot 15.
The loan association answered the plaintiff’s amended petition denying generally its allegations and also filed its cross-petition alleging the execution of the mortgage by the Bedores and its recordation; that the mortgage was executed prior to the commencement of the construction of the house on Lot 15 and was a first and prior lien on the property. The prayer was that if the property be ordered sold, its lien be declared a first and prior lien and it have and recover the amount due on the mortgage.
The Armbristers filed an answer denying all of the allegations in plaintiff’s amended petition, and specifically denied that any materials were furnished for Lot 15 subsequent to January 15, 1959. Their cross-petition alleged they purchased the property under contract on January 21, 1958; that they were the legal owners and had been in possession of the property since that time; that they were not served with legal process for more than one year after the filing of the lien and as to them, it was barred by the statute of limitations; that the plaintiff knew of their purchase of the property on January 21, 1958; that they assumed and agreed to pay the mortgage to the loan association, and that any claim of plaintiff was inferior to their title. The prayer was that plaintiff take nothing and that their tide be quieted against plaintiffs lien.
The plaintiff filed verified replies to the answers of the Bedores, the Armbristers and the loan association, and verified answers to the cross-petitions of the Armbristers and the loan association.
At the commencement of the trial the court sustained the plaintiff’s motion for judgment on the pleadings against the Armbristers and the loan association upon the ground that the answers of those defendants were not verified and did not deny the correctness of plaintiff’s verified account as alleged in its amended petition.
The case proceeded to trial on the issues joined by the amended petition and the verified answer of the Bedores. During the trial counsel stipulated that the materials shown on the itemized statement attached to the mechanic’s lien were furnished and used in the construction of the dwelling on Lot 15, except tickets Nos. 06417, 06563 and 08410 all dated subsequent to January 14, 1958.
All of the parties were called as witnesses and testified, and at the close of all the evidence the court announced it would take the matter under advisement and requested the parties to file briefs. Thereafter, on December 24, 1961, the court filed its memorandum opinion containing findings of fact and conclusions of law. It found that the items covered by the disputed tickets were for a gallon of paint, some quarter round, aluminum threshold, a pull chain receptacle, and plywood sheathing, and made a general finding in favor of the defendants, that “no material furnished by the plaintiff was used on this house after January 15, 1958.” The court concluded as a matter of law that it should not reverse its ruling in awarding judgment on the pleadings as to the defendants loan association and the Armbristers, but that “the principal defendants, Bedores, represented all parties, and any legal relief granted to them would apply to all parties.” Further, that plaintiff’s mechanic’s hen filed on May 19, 1958, was not filed within four months after the date upon which material was last furnished and plaintiff had no lien upon Lot 15, and any right to an equitable mortgage, “was waived by plaintiff, if any ever existed, by plaintiff’s non assertion of any such right to Armbristers and the application of funds from the mortgage to other buildings.”
The plaintiff argues many legal questions all of which are hinged upon the validity of its mechanic’s lien and that under the evidence it should be presumed that materials furnished were actually used in the construction of the house on Lot 15, and cites and relies upon Rice & Floyd v. Hodge Bros., 26 Kan. 164; Surety Co. v. Lime Co., 76 Kan. 914, 92 Pac. 1111, and David v. Doughty, 96 Kan. 556, 152 Pac. 660.
It is unnecessary to discuss or distinguish those cases since under the facts and circumstances presented they are inapplicable. Nor do we propose to review at length the evidence upon which the district court found that no material furnished by the plaintiff was used in the construction of the dwelling on Lot 15 after January 15, 1958. There was evidence that Bedore started finishing the inside of the house during December of 1957; that the floors were finished after everything else was completed; that he began finishing the floors about the 4th or 5th of January and that it took about two days to varnish them; that ticket No. 06417, dated January 14, 1958, was for quarter round and plywood sheathing and he did not use any 1-inch quarter round inside the house, and there was no use for sheathing after the house was completed; that ticket No. 06563, dated January 22, 1958, was for an aluminum threshold and a pull chain receptacle; that floors are never finished without the threshold, and he could not remember putting the receptacle in after the floors were finished; that ticket No. 08410, dated May 7, 1958, was for one gallon of house paint, and that plaintiff’s manager had approached W. H. Bedore and his wife and suggested that they buy a gallon of paint in order to validate plaintiff’s lien, and if the paint was purchased, it was never used on the house. Other testimony amply supported the district court’s finding that no material furnished by the plaintiff was used on the dwelling after January 15,1958.
The plaintiff argues that it is entitled to judgment against the loan association and the Armbristers since the answers of those defendants were not verified which, in effect, left the mechanic’s lien, verified account, and contract admitted and not open to any defense pleaded in the answers. While the loan association and the Armbristers did not cross-appeal from the order of the district court sustaining the plaintiff’s motion for judgment on the pleadings, nonetheless we point out that when the answers and cross-petition of those defendants were filed, plaintiff did not challenge the sufficiency either by demurrer or motion, but pleaded over by filing a reply denying the new matter and renewing the prayer of its petition. By pleading over plaintiff waived lack of verification. (Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138,143, 109 Pac. 197; Tuggle v. Johnson, 190 Kan. 386, 375 P. 2d 622.) Although the district court, in its memorandum opinion, refused to reverse its ruling rendering judgment for the plaintiff, the effect of that ruling was abrogated by its subsequent ruling that the loan association and the Armbristers were protected by the verified answer of the Bedores. The ultimate result, therefore, was the same as though the district court had overruled the plaintiff’s motion for judgment on the pleadings. It is a well established principle, requiring the citation of no authority, that if the decision of the district court is correct, its reasons for arriving at the decision are unimportant, and we are convinced the district court entered a correct judgment denying the enforcement of the plaintiff’s mechanic’s lien and the purported equitable mortgage.
A money judgment was not sought against the defendants loan asociation and the Armbristers, and it is obvious the plaintiff could have no enforceable claim against them when it had no lien on the property. Moreover, when the Bedores executed the mortgage on Lot 15 in favor of the loan association, the mortgage warranted title; likewise, when they executed the warranty deed to the Armbristers in March of 1960, the deed warranted title, and it was incumbent upon the Bedores, in addition to being the principal defendants in the action, to come in and defend the title. (Samson v. Zimmerman, 73 Kan. 654, 85 Pac. 757; 14 Am. Jur., Covenants, Conditions and Restrictions, §65, p. 531.) Here the Bedores, being parties to the action, appeared in the trial and defended the title which they had warranted to the defendants loan association and the Armbristers. They knew all the facts with respect to the purchase and use of materials which went into the house and offered testimony as to the accuracy of the items constituting the mechanic’s lien, and the facts concerning the alleged equitable mortgage. The district court heard the testimony and the case was decided on an issue of fact against the contentions of the plaintiff.
One point deserves attention. The principal amount loaned for the construction of the dwelling on Lot 15 was $6,500. The plaintiff was paid by the loan association’s checks for the various houses built by the Bedores. Simple arithmetic shows that someone received $2,619.33 prior to the final disbursement of $3,880.67 which was made January 30, 1958. The plaintiff’s own agreement with the Bedores was that it was to recover the cost of the lot out of the first payment under the construction loan. The district court did not err in its conclusion that the plaintiff waived its right, if any ever existed, to the establishment and foreclosure of an equitable mortgage.
The record has been carefully examined and we are of the opinion that the district court did not err in rendering a personal judgment against the defendants W. H. Bedore and Georgine Bedore for the sum of $3,568.70 with interest; in adjudging that the Hays Building and Loan Association had a first and prior lien pursuant to the terms of its mortgage of record less payments made by the Armbristers, and in decreeing that the title of the defendants Armbristers be quieted as to the plaintiff.
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Caplinger, J.:
Jesus Ruiz-Reyes, Jr., appeals the district court’s denial of his objection to the use of a previous conviction to enhance the severity level of his current offense for possession of cocaine with intent to sell pursuant to K.S.A. 65-4161. He argues his previous conviction should not have been used because it did not occur until after the commission of the current offense. We agree and reverse and remand for resentencing.
Procedural and factual background
On December 5,2000, Ruiz-Reyes was arrested in Reno County for various drug crimes, including possession of cocaine with intent to sell in violation of K.S.A. 65-4161. After the State filed formal charges, the case was continued indefinitely to allow for the resolution of matters pending against Ruiz-Reyes in other counties.
On April 15, 2004, Ruiz-Reyes was convicted in Ford County of possessing methamphetamine with intent to sell in violation of K.S.A. 65-4161, based on an offense committed in 1999. The State then filed an amended complaint in the Reno County action modifying the charge of possession of cocaine with intent to sell from a severity level 3 to a severity level 2 felony based on the previous Ford County conviction and K.S.A. 65-4161(b).
After pleading guilty in Reno County to the cocaine charge and an additional charge of possession of methamphetamine pursuant to K.S.A. 65-4160, Ruiz-Reyes objected to the classification of the cocaine charge as a severity level 2 offense for sentencing purposes because at the time he committed the crime, he did not have a prior conviction under K.S.A. 65-4161(b).
The district court denied Ruiz-Reyes’ objection and imposed concurrent sentences of 56 months for the severity level 2 possession of cocaine with intent to sell conviction and 11 months for the methamphetamine conviction.
The issue presented by this appeal is whether K.S.A. 65-4161(b) permits enhancement of the severity level of a defendant’s current crime based on a conviction that did not occur until after the commission of the instant offense. Resolution of this issue requires interpretation of K.S.A. 65-6141(b). The interpretation of a statute is a question of law over which this court exercises unlimited review. See State v. Taylor, 262 Kan. 471, Syl. ¶ 4, 939 P.2d 904 (1997). The rules of statutoiy construction were recently summarized in State v. Banning, 34 Kan. App. 2d 783, 785, 125 P.3d 573 (2005), rev. denied 281 Kan. 1379 (2006):
“ ‘ “The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, tire court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” ’ [Citation omitted.]
“The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” ’ [Citation omitted.]”
K.S.A. 65-4161(b) provides: “If any person who violates this section has one prior conviction under this section . . . , then that person shall be guilty of a drug severity level 2 felony.” Ruiz-Reyes argues that if we apply the rules of statutoiy construction, as we must, the statute’s use of the present tense of the verb “to violate” requires the court to consider the existence of prior convictions at the time the instant offense occurs, rather than at the time of sentencing.
In support, Ruiz-Reyes cites State v. Kirk, No. 89,599, unpublished opinion filed December 24, 2003. There, a panel of this court considered the meaning of nearly identical language in K.S.A. 65-4160(c), which provides: “If any person who violates this section has two or more prior convictions under this section . . . , then such person shall be guilty of a drug severity level 1 felony.” The Kirk panel concluded the clear language of the statute requires that “the presence of prior convictions is to be viewed at the time of violation, rather than at the time of conviction.” Slip op. at 3.
In arguing the district court properly enhanced the severity level of Ruiz-Reyes’ current offense based upon a conviction occurring after the commission of the instant offense, the State relies upon State v. Bandy, 25 Kan. App. 2d 696, 700, 971 P.2d 749 (1998), rev. denied 266 Kan. 1100 (1999). There, this court was faced with the issue of whether a prior driving while suspended (DWS) conviction that followed the defendant’s current DWS offense could be used to enhance the severity level of his current offense under K.S.A. 1997 Supp. 8-262(a)(l). That statute provided:
“Any person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked shall be guilty of a: (A) Class B nonperson misdemeanor on the first conviction; (B) class A nonperson misdemeanor on the second conviction; and (C) severity level 9, nonperson felony on a third or subsequent conviction.”
The defendant in Bandy sought to rely upon State v. Wilson, 6 Kan. App. 2d 302, 306, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981), which held that the enhancement of a defendant’s sentence as a third-time offender under K.S.A. 1980 Supp. 21-4504(2), the Habitual Criminal Act (HCA), required “each succeeding offense [to] be committed after the conviction for the preceding offense.” Bandy, 25 Kan. App. 2d at 697-98. The Bandy court rejected this argument, opining that the enactment of the Kansas Sentencing Guidelines Act (KSGA) signaled a change in “legislative intent with regard to prior convictions.” 25 Kan. App. 2d at 699. Relying on the legislature’s definition of “prior conviction” in K.S.A. 21-4710(a), this court in Bandy concluded:
“The intent of the legislature in determining a defendant’s criminal history in the KSGA is to allow all prior convictions regardless of the timing of the previous offense(s). We extend by analogy this intention and apply it to other self-contained habitual violator statutes, such as the driving with a suspended license statute .... This provides a harmonious application of all habitual violator statutes regardless of whether an individual statute is silent as to the timing of prior offenses.” 25 Kan. App. 2d at 700.
Despite Bandy’s rather all-encompassing language, Ruiz-Reyes argues Bandy is distinguishable, and he again turns to Kirk for support. There, the court found Bandy did not support the State’s argument that the definition of “prior conviction” in K.S.A. 21-4710(a) should be applied to K.S.A. 65-4160(c). Regarding Bandy’s broad holding, the Kirk court succinctly stated:
‘While harmony in the universe may be a desirable goal, its attainment was unnecessary for the resolution of the issue presented to the Bandy court. Therefore, we view Bandy as precedent for its required finding only, i. e., all prior driving while suspended convictions are applied to enhance a current driving while suspended sentence, regardless of when the respective unlawful driving occurred.” Slip op. at 3.
Kirk further observed that applying the definition of “prior conviction” in K.S.A. 21-4710(a) to the determination of severity levels “is not logically required” because “[s]everity level enhancement is separate and distinct from criminal history classification.” Slip op. at 2.
We find Kirk persuasive for several reasons. First, the statute at issue in Kirk, K.S.A. 65-4160(c), contained essentially the same language as the statute at issue here, K.S.A. 65-4161(b). Significantly, the language of both statutes contemplates a violation committed by an individual who “has” at least one prior conviction at the time the individual “violates” the law.
Further, this interpretation of the statute complies with two fundamental rules of statutory construction: (1) we must give effect to the intent of the legislature as expressed; and (2) we must resolve any reasonable doubt about the meaning of a statute in favor of those subjected to its provisions. See State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 (2005).
Additionally, as Kirk recognized, criminal history classification and crime severity level enhancement are separate and distinct factors used in determining a defendant’s sentence. The Kansas Supreme Court discussed this distinction in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002):
“The determination of a felony sentence is based on two factors: the current crime of conviction and the offender’s criminal history. The sentence contained in the grid box at the juncture of the severity level of the crime of conviction and the offender’s criminal history category is the presumed sentence.”
Clearly, the legislature was aware of the dichotomy it created when it enacted the KSGA. For more than a decade before the KSGA was established, the HCA had been interpreted to permit enhancement of penalties only when the defendant’s prior convictions preceded the offense for which the defendant was being sentenced. See Wilson, 6 Kan. App. 2d at 306. Presumably, the legislature was aware of this interpretation when it created an inclusive definition of “prior conviction” for use in calculating criminal history, but retained more restrictive language in K.S.A. 65-4161(b) for use in determining a crime’s severity level. As Ruiz-Reyes argues, if the legislature intended the definition of “prior conviction” in K.S.A. 21-4710(a) to apply to 65-4161(b), then it could have explicitly so indicated.
The State unsuccessfully attempts to distinguish Kirk by pointing out that there the defendant’s four current convictions were entered on the same day in the same jurisdiction and could not be used to enhance the severity level of each other. However, this ignores the basis for the court’s holding in Kirk, i.e., that the defendant’s “prior” convictions did not occur until after he committed his current offense. A change in the sequential order of the defendant’s convictions would not have changed the result in Kirk.
Moreover, we are not persuaded by the State’s argument that our adoption of Kirk’s rationale will permit defendants to manipulate sentences by controlling the order in which convictions are imposed. To the contrary, pursuant to Kirk, a crime’s severity level under K.S.A. 65-4161(b) will be determined at the time it is committed.
Based upon the plain language of K.S.A. 65-4161(b), we hold that the severity level of the defendant’s instant offense may not be enhanced based upon a prior conviction that did not occur until after commission of the instant offense. Accordingly, we conclude the district court erred in enhancing for sentencing purposes the severity level of Ruiz-Reyes’ cocaine conviction based on his Ford County conviction, which occurred after the cocaine offense in this case.
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McAnany, J.:
John Uhlarik appeals the district court’s final order in this protection from stalking (PFS) action, arguing that the order was not based on substantial competent evidence. We find ample evidence to support the district court’s order and, therefore, affirm.
Gwen Wentland is a professional track and field athlete who competes in the high jump. Beginning in 1995 she was involved in a romantic relationship with Uhlarik, a professor of psychology at Kansas State University. Wentland and Uhlarik lived together for a time. Their relationship ended in August 2000.
On February 26, 2001, Wentland filed a petition for a protection from abuse (PFA) order, alleging that Uhlarik’s conduct placed her in fear of bodily injury. Following a hearing at which Uhlarik failed to appear, the district court issued a final PFA order on March 14, 2001.
Wentland returned to court in 2003 for her first PFS order against Uhlarik. On February 19, 2003, following another hearing which Uhlarik failed to attend, the court issued a final PFS order against him. The order was effective through February 19, 2004.
Wentland sought another PFS order against Uhlarik in 2004. The district court issued its second final PFS order against Uhlarik on May 24,2004, following a hearing at which his lawyer appeared, though Uhlarik did not. The order was effective through May 24, 2005.
On July 4, 2004, Wentland and Uhlarik executed a “Voluntary Extension of Orders of Protection” by which they agreed to extend the court’s May 24, 2004, final PFS order to May 24, 2006. The court later found that while this document was legally insufficient to extend the PFS order, the parties believed that it did so.
On March 3, 2006, Wentland commenced her third PFS action against Uhlarik, This is the action now before us. Wentland predicated this action on encounters in February 2006 with Uhlarik at a Dillons grocery store in Manhattan and again at Logan International Airport in Boston. (Uhlarik had filed a mirror PFS action against Wentland the day before, but the court ultimately denied him any final relief and that action is not a subject of this appeal.) Following the final hearing on Wentland’s petition, the court entered its third final PFS order in her favor. Uhlarik appeals.
Uhlarik’s challenge is to the sufficiency of the evidence. In this context, our function is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). In considering the sufficiency of the evidence we do not reweigh the evidence or pass on the credibility of the witnesses. To the contrary, we view the evidence in the light most favorable to the prevailing party. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 478, 15 P.3d 338 (2000). In considering the district court’s conclusions of law, however, our review is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).
The Protection from Stalking Act, K.S.A. 60-31a01 etseq., “shall be liberally construed to protect victims of stalking and to facilitate access to judicial protection for stalking victims.” K.S.A. 60-31a01(b). A plaintiff requesting a PFS order must prove the allegations of stalking by a preponderance of the evidence. K.S.A. 60-31a05. The district court’s ruling, and our analysis, turn upon a reading of K.S.A. 60-31a02, which provides the following definitions:
“(a) ‘Stalking’ means an intentional harassment of another person that places the other person in reasonable fear for that person’s safety.
“(b) ‘Harassment’ means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.
“(c) ‘Course of conduct’ means conduct consisting of two or more separate acts over a period of time, however short, evidencing a continuity of purpose which would cause a reasonable person to suffer substantial emotional distress. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ”
At the final hearing on her petition, Wentland described the encounter with Uhlarik at Dillons in February 2006. While Went-land was placing an order at the deli department, Uhlarik walked past her and stood behind a counter while staring at her. Wentland felt uncomfortable so she went down another aisle in the store. When she returned to the deli department to pick up her order, Uhlarik was still standing nearby and was staring at her intently. Ultimately, Wentland left the store without finishing her shopping because she felt scared.
Wentland also testified to the Boston encounter that occurred that same month. She had traveled to Boston to compete in the U.S. Championships in track and field. She thought she saw Uhlarik in the stands but she could not be sure. Following the competition Wentland checked in at the Midwest Airlines ticket counter at Logan International Airport for her return flight. While standing in line she saw Uhlarik standing in the same line, four or five people back. Uhlarik stared at her and made a facial gesture which she described as a type of smile to indicate “ I’m here.’ ” Wentland felt surprise and alarm. She testified that her heart raced and she feared for her safety. Wentland believed that Uhlarik’s presence in the airport was more than a mere coincidence.
Riley County Detective Darla King testified that Wentland had filed past criminal complaints with the Riley County Police Department (RCPD), reporting violence against her by Uhlarik. Uhlarik was arrested in 2004 and again in March 2006, following a search of his home. During the search, RCPD located nude pictures of Wentland, photographs with Wentland’s eyes blacked out, and personal information about Wentland such as her telephone numbers, license plate numbers, and address. Newspaper clippings as recent as 2004, 4 years after their relationship ended, indicated that Uhlarik had been monitoring Wentland. A search on Uhlarik’s home computer revealed that he had Googled Wentland’s name over 5,000 times. Officer King opined that the investigation indicated that Uhlarik was obsessed with Wentland.
The district court found that the incidents at Dillons and at the airport “standing alone would not in the Court’s opinion place a reasonable person in fear of their safety. However, a reasonable person has to look at the totality of the circumstances and the relationship and the history involved here, which goes back as early as at least the year 2001.” After noting the prior PFA and PFS orders entered against Uhlarik, the court concluded “under the totality of the circumstances and the prior history, and then added to the fact that it’s uncontroverted the defendant had conducted five thousand searches of the plaintiff s name, I believe would place a person in reasonable apprehension.” The court thereupon entered a final PFS order against Uhlarik.
Prior PFA and PFS Orders
Uhlarik’s first argument is that since the district court found the encounters at Dillons and at the airport, standing alone, would not place a reasonable person in fear of his or her safety, Wentland failed to prove a course of conduct consisting of at least two acts over a period of time which evidences a continuity of purpose that would cause a reasonable person to suffer substantial emotional distress.
The district court did not consider these two encounters in isolation, nor will we. We review the trial judge’s remarks in the context of all the surrounding facts. These facts include the history of Uhlarik’s repeated harassment of Wentland. As we will discuss further below, these facts establish the requisite course of conduct that would cause a reasonable person to suffer substantial emotional distress, as found by the district court. The final PFA order in 2001 was issued upon Wentland proving that Uhlarik engaged in abuse as defined by K.S.A. 60-3102. The final PFS orders issued in 2003 and 2004 followed Wentland’s proof that Uhlarik engaged in stalking as defined by K.S.A. 60-31a02. In considering the sig nificance of Uhlarik’s more recent encounters with Wentland, the district court properly took these prior events into consideration.
Uhlarik argues further that the district court should not have taken judicial notice of these prior court proceedings. We find this curious since it was Uhlarik who first brought these prior actions to the attention of the district court when he attached copies of the orders to, and referred to them in, his motion to dismiss. It was Uhlarik who injected these prior final PFA and PFS orders into the present case. All of these prior orders were issued in cases in the District Court of Riley County, the same court where the instant action was filed and heard. There is but one district court in Riley County though its judges sit in separate divisions. The district court may take judicial notice of its own records. See State v. Shaffer, 14 Kan. App. 2d 282, 283-89, 788 P.2d 1341, rev. denied 246 Kan. 770 (1990). It was proper for the court to consider its prior orders, copies of which had been filed by Uhlarik in the court file for the present case.
Uhlarik also complains that by taking judicial notice of the previous orders, the trial court denied him due process and equal protection of the law by denying him the opportunity to challenge the evidence against him. We note that, in fact, Wentland testified at the hearing that she had obtained three prior orders against Uhlarik. While Uhlarik certainly could not relitigate these prior actions, he had the opportunity to cross-examine Wentland regarding them and did in fact cross-examine her regarding the May 2004 order. Uhlarik was denied neither due process nor equal protection.
Next, Uhlarik invokes res judicata as a bar to the district court’s consideration of the prior PFA and PFS orders. Res judicata bars parties from relitigating their previously litigated claims. Magstadtova v. Magstadt, 31 Kan. App. 2d 1091, 1093, 77 P.3d 1283 (2003). There was no relitigation of the prior claims. Those claims had been reduced to judgment. The fact of the prior judgments was introduced into evidence. This evidence was relevant and properly considered by the district court. Under the PFS act, stalking requires intentional harassment; harassment requires a course of conduct; and a course of conduct requires two or more separate acts. K.S.A. 60-31a02. Wentland alleged and proved two encounters with Uhlarik that had never before been the subject of litigation: the Dillons encounter and the airport encounter. Standing alone they constitute a course of conduct under the statute. The fact of the prior judgments against Uhlarik created a factual context which was relevant to establish the substantial emotional distress that the district court found a reasonable person would experience from these recent encounters.
Uhlarik argues that by relying on these past judgments Wentland was relieved of proving the statutorily required elements of stalking based upon her most recent encounters with Uhlarik at Dillons and at the airport. This argument is without merit. Uhlarik relies upon the court’s comment that “[t]hose incidents standing alone would not in the Court’s opinion place a reasonable person in fear of their safety.” It is clear that the court concluded that had Uhlarik not harassed Wentland in the past, a reasonable person would not have felt fear for personal safety from these isolated events. But it is equally clear that the court determined that Uhlarik’s history of harassment would cause a reasonable person, viewing the Dillons and airport events in context, to experience fear for personal safety. The court did not reheve Wentland from tire burden of proving her case.
In his final argument relating to the PFA and PFS orders, Uhlarik asserts that the trial court abused its discretion when it considered these prior orders because they were inadmissible under K.S.A. 60-455. First, we note that Uhlarik failed to object when Wentland testified regarding the prior orders. The district court cannot be accused of abusing its discretion when Uhlarik failed to object and thereby give the district court an opportunity to exercise its discretion on the matter. Issues not raised before the trial court cannot be raised on appeal. Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). Uhlarik has failed to preserve this issue for appeal. K.S.A. 60-404. Further, while K.S.A. 60-455 prohibits the admission of such evidence to prove a disposition to commit other acts of abuse or stalking, such evidence may be admitted to prove some other material fact such as Uhlarik’s motive in his encounters with Wentland at Dillons and at the airport. Thus, the district court’s consideration of this evidence did not violate K.S.A. 60-455.
The Standard of Proof
Uhlarik argues that the trial court’s ruling was predicated upon a “reasonable apprehension” standard which is a lower standard than the “substantial emotional distress” showing required by K.S.A. 60-31a02(c). He bases this argument on the district court’s statement:
“[T]he Court believes under the totality of the circumstances and the prior history, and then added to the fact that it’s uncontroverted the defendant had conducted five thousand searches of the plaintiff s name, I believe would place a person in reasonable apprehension, and as such I’m going to go ahead and grant the order against stalking.” (Emphasis added.)
Uhlarik concludes from this that the district court failed to make a finding that Wentland suffered substantial emotional distress.
K.S.A. 60-252 requires the trial court in a court-tried case to make findings regarding the controlling facts and conclusions of law based on those findings. Uhlarik did not object to the trial court regarding its findings and conclusions. Thus, the trial court is presumed on appeal to have found all facts necessary to support its judgment. Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003) (quoting Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 [1998]). Judge Wilson prefaced his ruling with the statutory definition of stalking. Taken in context, it is perfectly clear what Judge Wilson expressed in his ruling. Uhlarik points to Webster’s definition of “apprehension” as “ ‘[d]istrust or fear concerning future events; foreboding; misgivings.’ ” Such an argument begs the question: reasonable apprehension of what? The obvious answer is reasonable apprehension of bodily harm, a concept in complete harmony with the statutory definition of stalking in K.S.A. 60-31a02, which requires a showing of “reasonable fear for that person’s safety,” and Wentland’s testimony of her fear and alarm. The district court applied the correct legal standard in granting relief on Wentland’s petition.
Internet Searches
With respect to the evidence that Uhlarik conducted over 5,000 internet searches of Wentland’s name, Uhlarik argues that his internet searches could not have caused Wentland to fear for her safety or to suffer severe emotional distress because Wentland was not aware of the searches until after she brought this action. Uhlarik did not object to the introduction of this evidence at the hearing. Therefore, the evidence was properly before the court.
Uhlarik cites no authority, and we find none, which limits testimony at trial to the facts as they existed at the time suit commenced. If that were the case, a plaintiff in a personal injury action would be barred from presenting evidence of ongoing injuries and damages suffered since suit was filed. This clearly is not the case.
Under K.S.A. 60-31a02, stalking requires a showing of harassment and harassment requires a showing of a course of conduct. It is the course of conduct, not any particular and isolated act of the defendant, which must cause the requisite harm. Though Wentland was not aware of the internet searches when she commenced this action, she was clearly aware of them at the time of trial. The searches themselves do not constitute stalking. They do, however, constitute evidence of an ongoing course of conduct. Furthermore, they are relevant to show Uhlarik’s intent and to negate tire likelihood that these encounters were mere coincidences. The district court did not err in considering this testimony.
Next, Uhlarik argues that because Wentland is a public person, she has waived any expectation of privacy with respect to public access to information about her on the internet. This argument is based upon the mistaken notion that the district court found that Uhlarik’s 5,000 internet searches on Wentland’s name constitute stalking. The district court made no such finding. It is apparent that the district court made note of this testimony since it tended to show Uhlarik’s ongoing infatuation with Wentland, his intent, and the probability that the Dillons and airport encounters were not a mere coincidence.
Viewing the evidence in the light most favorable to Wentland, the prevailing party, we conclude that Uhlarik’s past harassment of Wentland, his ongoing infatuation with her, and the recent encounters at Dillons and at the airport provided the district court with ample evidence to support the entiy of a final PFS order against Uhlarik.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment of the district court terminating a temporary total disability award made by the Workmen’s Compensation Commissioner, now Workmen’s Compensation Director (see Laws 1961, Chapter 243, Section 7 [effective June 30, 1961], now G. S. 1961 Supp., 74-710). The primary facts are not in dispute as there is no conflicting evidence.
The claimant, William T. Evans, Jr., was employed by the respondent, employer (Cook & Galloway Drilling Company). The respondent’s insurance carrier was the Fidelity and Casualty Company of New York.
On the night of November 5, 1959, claimant was working for respondent on an oil derrick about fifty-five feet above the derrick floor. While unlatching a joint of pipe a strong wind caught claimant, knocking him against the pipe rack and striking his back and hip.
Claimant did not return to work the following day but called a Dr. Evans who taped his back and sent him to the hospital at Great Bend to be X-rayed. Later Dr. Evans sent him to DrThurlow in Hays who examined him on one occasion. Claimant then returned to Dr. Evans who saw him every three or four days for a time. On February 22, 1960, he was given an orthopedic examination and X-rayed by Dr. Jarrott of Hutchinson. He was examined again by Dr. Jarrott on June 8, 1960.
Claimant was examined by Dr. John F. Lance, another orthopedic surgeon, on July 1, 1960. This doctor gave him a complete orthopedic examination and took X-rays of the lumbar spine.
In a general way it can be said that Claimant’s ailments were diagnosed as osteoarthritis, osteoporosis, degenerative disc disease, and a superimposed mechanical backache. The osteoarthritis and the degenerative disc disease were not related to the accident. However, the accident did cause the osteoporosis to flare up. Claimant was totally disabled by the osteoporosis but with proper medical treatment the disability might be reduced to fifteen per cent.
The Workmen’s Compensation Examiner found that the claimant sustained personal injury by accident arising out of and in the course of his employment, resulting in temporary total disability; that he was in need of treatment; and that the respondent and its insurance carrier should provide treatment for him by a competent orthopedic surgeon.
On October 28, 1960, an award was made for temporary total disability with weekly compensation for a period not to exceed 415 weeks or until the further order of the Commissioner. No appeal was taken from the award.
On December 8, 1960, the respondent and the insurance carrier filed an application with the Workmen’s Compensation Commissioner for a review and modification of the award, charging that the claimant was not co-operating in obtaining medical treatment.
On December 28, 1960, counsel for the respondent and the insurance carrrier wrote a letter to the Workmen’s Compensation Com missioner requesting a dismissal of this application stating that claimant was now co-operating in receiving treatment. Following receipt of such letter this application was dismissed on January 11, 1961.
On May 8, 1961, the respondent and the insurance carrier again filed an application for review, modification and cancellation of the award based on grounds that claimant had refused medical treatment.
The evidence on the involved application for review, modification and cancellation was by depositions of doctors Nickell and Jarrott.
Dr. Jarrott testified that he received authority from the insurance carrier to treat the claimant by letter dated November 16, 1960; that he arranged an appointment with claimant for December 5, 1960, which appointment was not kept but another appointment was made and kept December 22, 1960; that he found no particular change in claimant’s condition; that claimant advised him he was going to five in Oklahoma and he would like to be treated by Dr. U. E. Nickell of Davenport, Oklahoma. Dr. Jarrott also stated that he wrote Dr. Nickell on December 27, 1960, informing him of the nature of claimant’s ailments and outlined recommended medical treatment.
In his deposition Dr. Nickell stated that the claimant called at his office in January 1961. We quote pertinent portions of Dr. Nickell’s testimony:
“A. He just came in and told me he got hurt there in a drilling company, I think it was, as a I remember, and that they was treating him and that he wanted to come down here and wanted me to treat him; and I said, ‘All right, you have your records transferred down here and I’ll examine you and see if there is anything the matter with you,’ but I said, ‘I ain’t going to treat you on nobody’s say-so about it, just what they say.’ And he give me two bottles of medicine there, said ‘That’s what they give me,’ and said, ‘I ain’t going to take it. It ain’t doing me no good.’ I don’t know what kind of medicine he had or why the pills were given to him. He didn’t give me any history of how the injury was sustained. He said his back hurt, in the lumbar region. He said he would write these people, and they sent me these two letters here, and I have never seen him since.
“A. I haven’t seen him since that time, except he come in here in the office one day, but not for that at all; just come in the front room here and told me he’d see me later.
“A. You know, that letter from that doctor about treating him didn’t amount to anything. He didn’t have no right to authorize me to treat him. I just told Bill to write to him and let him send me the x-rays. He didn’t send the x-rays to me, but this attorney said that the insurance company would pay for it.”
Further testimony o£ Dr. Jarrott reads:
“. . . I wrote Dr. Nickell a letter, dated December 27, 1960. The next thing I have in my file, in point of time, is a letter from counsel for respondent and insurance carrier wanting to know the present status of the patient. I advised that I had not heard from Dr. Nickell. An appointment was then made for Evans to see me on May 1, 1961. He appeared for tire examination, and he obviously was not improving. He stated he made several attempts to see Dr. Nickell but had not been seen. His general physical condition was deteriorating and obviously was not getting better. A copy of that report was then sent to Dr. Nickell and the patient was requested to go back to Dr. Nickell. This was by letter dated May 1, 1961. I have had no further contact with the claimant. . . .”
. . As far as the osteoarthritis and degenerative disc disease are concerned they are not related to the accident in any sense of the word. With treatment claimant’s disability might reduce to 15 percent; it might reduce to 5 percent, resulting from the accident. With treatment for his osteoporosis his disability is going to range from 5 to 15 or 20 percent. If claimant does not get treatment for his osteoporosis his disability will remain total.”
Further proceedings before the Examiner should be noted. Claimant made the following offer through his attorney, Mr. Turner:
“Let the record show at this point that claimant again is willing to accept any and all treatment as outlined by Dr. Jarrott, that if Dr. Nickell sets up a regular schedule or series of appointments, that the claimant will keep the same and will accept whatever course of treatment is outlined by Dr. Jarrott.
“That in this connection, claimant would further prefer said course of treatment be administered by an orthopedic surgeon.”
Mr. Robbins, attorney for the insurer, then made the following statement:
“. . . we will certainly resist any change of treating physicians unless it is Dr. Jarrott right here in Hutchinson.”
Mr. Turner replied:
“In this connection, we would be willing, so long as you provide the mileage and per diem, to have the claimant treated by Dr. Jarrott of Hutchinson, Kansas.”
At the close of the hearing the Examiner made findings as follows:
Tt is Found that Dr. Nickell does not wish to provide the medical treat ment as suggested by Dr. Jarrott and that the fault in the claimant not getting the treatment from him lies as much with Dr. Nickell as it does with the claimant. It is therefore found that the existing award of October 28, 1960, should not be modified.
“It is further found that the respondent and insurance carrier should attempt to find a qualified physician within the vicinity of the claimant’s present address to give him the type of medication and treatment as recommended by Dr. Jarrott.”
An order was issued in accordance with the foregoing findings on April 30, 1962. The respondent and its insurance carrier then appealed to the district court.
The district court heard the appeal on September 10, 1962, and rendered judgment on November 8,1962.
In the judgment the court found that with treatment for osteoporosis, claimant’s disability would have been reduced to ten per cent, and
“That save for such ten percent disability, the disability that Claimant suffers is not in any way caused by his accident herein but, is the result of his refusal to submit to such reasonable and conservative medical treatment. That Claimant has in fact refused such medical treatment and that such refusal is unreasonable and is the result of a plan formulated by Claimant to remain on temporary total compensation.”
The district court further found that the temporary total award should be terminated as of April 20, 1962; that claimant should be allowed ten per cent partial disability from such date; and that the respondent and insurance carrier take credit for any overpayments made as measured by payments that are owing under the awards. The mathematical calculations were made as indicated by the findings and judgment entered accordingly. Thereupon the claimant perfected the instant appeal.
Appellant first contends that the district court erred in finding that the claimant refused to submit to reasonable medical treatment “as the result of a plan formulated by appellant to remain on temporary total disability.”
It should be noted that the > issue is not whether there was an “unreasonable” refusal. If there was a refusal to submit to medical treatment, the refusal is clearly unreasonable under the facts disclosed by the record. Appellant so agrees adding “but we submit there was no refusal at all.”
The admissions of appellant have narrowed the issues and render unnecessary a discussion of the authority of the Workmen’s Compensation Director or the courts, on appeal, to modify or cancel awards to a claimant, under the Workmen’s Compensation Act, for refusal to submit to reasonable medical treatment. (Workmen’s Compensation Law, “Manual of Procedure and Rules,” Rule 51-9-5; Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182; Gentry v. Williams Brothers, 135 Kan. 408,10 P. 2d 856; McCullough v. Southwestern Bell Telephone Co., 155 Kan. 629,127 P. 2d 467.)
The rule that a workmen’s compensation award may be modified or cancelled, for refusal to submit to reasonable medical treatment, is a forfeiture provision. Where the issue is raised, the burden of proof is upon the employer. (Wood v. Wagner Electric Corporation, [Mo. App.], 192 S. W. 2d 579; Cuchi v. George C. Prendergast & Sons, [Mo. App.], 72 S. W. 2d 136.)
“. . . the burden was on the appellants [employer and insurer] to adduce sufficient competent evidence, that is to say, evidence of probative value and quality, to authorize such limited forfeiture, (citing case.)” (Wood v. Wagner Electric Corporation, page 585, supra.)
Our attention is called to the limited responsibility of this court, in reviewing a workmen’s compensation case. We adhere to the fundamental rules announced in the recent case of Philips v. Skelly Oil Co., 189 Kan. 491, 370 P. 2d 65. The numerous citations of pertinent authorities are here omitted, but the rules are quoted as follows:
“. . . (1) it is the function of tire trial court and not that of the appellate court to pass upon the facts and this court has no jurisdiction over questions of fact on appeal under the Workmen’s Compensation Act (citing cases); (2) the question of whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and when it is determined by the district court will not be disturbed by this court where there is substantial evidence to sustain it (citing cases); (3) whether the judgment is supported by substantial competent evidence is a question of law as distinguished from a question of fact (citing cases); and (4) in reviewing the record to determine whether it contains substantial evidence to support the district court’s judgment, this court is required to review all the evidence in the light most favorable to the party prevailing below, and if there is any evidence to support the judgment it must be affirmed even though the record discloses some evidence which might warrant the district court making a contrary decision (citing cases).” (pp. 492 and 493.)
However, strict observance of the foregoing rules presents no difficulty in the reversal of the judgment of the lower court in this case. The burden of proof being on appellees, we find no evidence of record to support a finding that the appellant refused to submit to medical treatment, and of a certainty none that would support a finding that medical treatment was refused as the result of a plan to remain on temporary total compensation.
There cannot be a refusal until there is a definite request. With out again reviewing the evidence, it suffices to say that the appellant kept his definite medical appointments at all times. After appellant made contact with Dr. Nickell in Oklahoma, a definite appointment was never set up for him. Dr. Nickell questioned his authorization for a considerable time. He, at all times, showed a reluctance to treat the appellant on the diagnosis and suggested medication of Dr. Jarrott. He wanted to see the X-rays, stating: “ ‘, . . . you have your records transferred down here and I’ll examine you and see if there is anything the matter with you,’ but I said, T ain’t going to treat you on nobody’s say-so about it, just what they say.’ . . .” Dr. Nickell was never furnished with X-rays.
The only conclusion that can logically be reached is that the respondent, the insurer, Dr. Nickell, and the claimant were negligent in arranging a definite time for treatment and an agreed course of treatment.
The trial judge was evidently of the opinion that the only obligation on the part of the appellees was to authorize treatment. The obligation goes further. Before an award, under the Workmen’s Compensation Act, can be canceled for refusal to submit to medical treatment, there must be a definite arrangement for a course of treatment, which is definitely refused. In Haill v. Champion Shoe Mach. Co., 230 Mo. App. 631, 71 S. W. 2d 146, the rule is stated thus:
“It is pertinent to observe in this connection that a mere negligent failure on the part of the employee to obtain or accept medical treatment, though advised or urged to do so, does not bar a recovery of compensation under the statute. But to bar a recovery an unreasonable refusal to submit to medical treatment must be shown.” (p. 636.)
See, also, White Oak Refining Co. v. Whitehead, 149 Okla. 297, 298 Pac. 611; Tom Slick Oil Co. v. Sullivan, 167 Okla. 72, 26 P. 2d 926; Pee Wee Coal Co. v. Hensley, 196 Tenn. 498, 268 S. W. 2d 367; O’Neill v. Industrial Acc. Com., 91 Cal. App. 121, 266 Pac. 866.
After a detailed examination of the evidence before the district court at the time of its rendition of the involved judgment, and after having given careful consideration to all arguments advanced by the respective parties regarding the force and effect to be given such evidence, we are forced to conclude the record in this case discloses no competent substantial evidence to sustain a finding by the district court that the appellant refused medical treatment and that such refusal was the result of a plan formulated by him to remain on temporary total compensation.
The conclusion just announced requires that the judgment be reversed and the cause remanded with directions to proceed in accord with the views herein expressed. It also makes the consideration of other questions raised and discussed in the briefs unnecessary.
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The opinion of the court was delivered by
Price, J.:
This was an action in which plaintiff sought recovery in the amount of $7,461.34 against defendants Givens and Homer, doing business as Plaza Development Company, a partnership, for material, services and the use of construction machinery and equipment furnished by plaintiff to the alleged partnership. The petition was in the usual form and, among other things, alleged the partnership of defendants.
We are advised that defendant Givens filed no pleadings, and he is not a party to this appeal.
Defendant Homer filed an answer in the form of a general denial, and specifically denied that he and Givens were partners during the period in question or at any time subsequent thereto.
As abstracted, it appears that the answer was not verified. (See G. S. 1949, 60-729.)
Notwithstanding the unverified answer, plaintiff pleaded over by filing a reply, thus leaving in the case the issue as to the existence of the alleged partnership. (See Livingston v. Lewis, 109 Kan.
298, syl. 1,198 Pac. 952, and Tuggle v. Johnson, 190 Kan. 386, syl. 1, 375 P. 2d 622.)
A pre-trial conference was had at which ten written exhibits were offered and admitted. These exhibits will not be discussed in detail and it is sufficient to say they consisted of written contracts, agreements and letters executed and entered into by the parties in the course of their real-estate development projects, and each of which clearly indicated the partnership between Givens and Homer, as contended by plaintiff. The amount of the debt alleged by plaintiff to be due from the Plaza Development Company, and for which suit was brought, was admitted to be correct. A pre-trial order was made to the effect that whether the Plaza Development Company was a partnership between defendants Givens and Homer was a mixed question of law and fact, and, there being no dispute concerning the mentioned pre-trial exhibits, defendant Homer’s request for a trial by jury was denied.
Following a trial of the action the court rendered judgment for plaintiff against defendants Givens and Homer as partners, doing business as the Plaza Development Company, in the amount heretofore mentioned. Special findings and conclusions were made, and we quote two of them:
“10. The Court is of the opinion that in the various instances where Mr. W. O. Homer represented himself to be a partner that he was not merely holding himself out as such but was speaking the truth and was in truth and in fact at all such times an actual partner. The Court further determined that the actual contract of partnership between W. O. Homer and Tom Givens, d/b/a Plaza Development Company, may be found in the mutual acts and conduct of the parties, and the Court so finds.
“11. All of the admissions, statements, and exhibits as admitted in the pre-trial are hereby made a part of these findings and conclusions by reference.
“The Court is impelled to conclude that W. O. Homer and Tom Givens were in fact partners d/b/a Plaza Development Company, and that the merchandise, materials and equipment furnished to this partnership by plaintiff having a value of $7,461.34 is a debt of this partnership, and that judgment should be rendered herein against W. O. Homer and Tom Givens as partners, d/b/a Plaza Development Company, for this sum together with interest at six percent per annum from August 16, 1956, being the date of the last credit on this account.”
Judgment was entered accordingly, and defendant Homer has appealed.
As heretofore stated, it was admitted the amount sued for was owed by Plaza Development Company to plaintiff. The only ques tion thus remaining in the case was whether Givens and Homer were partners doing business in that name. The trial court found that they were, and in this appeal the principal question raised by Homer is whether he was entitled to a trial by a jury on the question of partnership, under G. S. 1949, 60-2903, which provides that:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.”
One of the obvious purposes of the statute is to guarantee to a litigant the right to a trial by jury when there is a dispute as to the facts concerning a claimed indebtedness. The general rule is that the issues raised by the pleadings determine the nature of the action, and where the issue is essentially one justiciable at common law a jury trial may be demanded as a matter of right. (Nusz v. Nusz, 155 Kan. 699, 127 P. 2d 441.)
Standing alone, the issues raised by the pleadings in this case fall within the classification calling for a trial by jury — if demanded. The matter, however, does not end there. At the pre-trial conference it was admitted by defendant Homer that the amount sued for was correct and was owed to plaintiff by the Plaza Development Company. This concession removed that issue from the case —leaving only the question whether Homer was a partner in the company.
Generally speaking the question as to the existence of partnership relations is a mixed question of law and of fact. What constitutes a partnership is a question of law and must be decided by the court. The existence or nonexistence of the facts necessary to bring the relation within the rule of partnership is a question of fact for the jury. On the other hand, where the facts in the case are undisputed, or are susceptible of only one inference, the question whether a partnership exists between particular persons is one of law for the court. (68 C. J. S., Partnership, §§ 24b and 59 pp. 444 and 484; 40 Am. Jur., Partnership, § 87, p. 190.)
The execution and existence of the written instruments received at the pre-trial conference were neither disputed nor denied. Several of them were executed and signed by Givens and Homer as partners, doing business as the Plaza Development Company. In fact, from the record presented, there was very little, if anything, remaining to be “tried.” The instruments were completely unambiguous and presented purely a question of law as to their construction, rather than questions of fact for a jury. In the two cases relied upon by defendant Homer — Stalker v. DeWitt, 142 Kan. 709, 51 P. 2d 1012, and Johnson v. Jones, 6 Kan. App. 755, 50 Pac. 983 — the question of the right to a trial by jury was not an issue. Under the record presented in the case before us it was not error to deny defendant’s request for a trial by jury.
We agree with the two above-quoted findings and conclusions of the trial court. It is clear tihat a correct decision was reached in this case, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
The defendant (appellant) Herthon Leopard was charged, tried and convicted in the district court of Wyandotte county of the crime of burglary in the second degree (G. S. 1949, 21-520). Defendant’s motion for a new trial was overruled, and defendant was sentenced for a term of fifteen years in the Kansas State Penitentiary under the habitual criminal act (G. S. 1949, 21-107a) and in accordance with G. S. 1949, 21-523. A duly qualified attorney was appointed prior to the trial to represent defendant, and defendant had the benefit of counsel throughout the trial, at the hearing on his motion for a new trial, and at the time sentence was pronounced July 20, 1962.
A little more than two months after the sentence was imposed, the defendant, while confined in the state penitentiary, attempted pro se to take an appeal to this court by filing with the clerk of the district court of Wyandotte county a notice of appeal. This instrument reads:
“Take notice, that the above named defendant, hereby appeals to the Supreme Court of Kansas, from the judgments and all adverse findings and rulings made in the above entitled case. . . .”
This notice of appeal was signed by the defendant, but no service of the notice of appeal was had on the county attorney and no proof of service filed with the clerk of the district court.
The defendant has filed an abstract and brief in this court, and the state has filed a counter abstract of the proceedings for the defendant, including the testimony in the case, and a brief.
The first question for this court to determine is its jurisdiction to hear the defendant’s attempted appeal. The jurisdiction of this court to entertain an appeal is conferred by statute pursuant to Art. 8, Sec. 3 of our state constitution, and when the record discloses a lack of jurisdiction, it is the duty of this court to dismiss the appeal. (State v. Shehi, 185 Kan. 551, 553, 345 P. 2d 684.)
G. S. 1949, 62-1724, provides the method for a defendant to perfect an appeal to this court. The pertinent portion of this statute provides that a defendant may appeal at any time within six months from the date of the sentence by serving notice of appeal on the county attorney of the county in which he was tried and filing the same with the clerk of the district court.
In a criminal action a defendant accomplishes nothing by filing a notice of appeal with the clerk of the trial court unless service has been made on the county attorney as attorney for the state. This court has jurisdiction to hear appeals in criminal cases only if they are taken in the manner specified by the legislature (G. S. 1949, 62-1724.) In State v. Sims, 184 Kan. 587, 337 P. 2d 704, the precise question presented by this appeal was decided when this court held:
“Supreme court has no jurisdiction to entertain an appeal by a defendant in a criminal case, unless he first complies with G. S. 1949, 62-1724, by serving within time prescribed therein notice of appeal on the county attorney of the county in which he was tried, and filing the same, showing proof of such service, with the cleric of the district court.”
(See, also, State v. Combs, 186 Kan. 247, 350 P. 2d 129; State v. Shehi, supra; State v. Hanes, 187 Kan. 382, 357 P. 2d 819.)
Since service of notice of appeal was not made on the county attorney as provided by law, this court has no jurisdiction in this action and the appeal is dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
In this case we have a widow attempting to show that the antenuptial contract, which she admits was entered into before her marriage to her late husband, did not bind her after her husband’s death and that she is entitled to claim her interest in the husband’s property under the laws of Kansas.
Mrs. Neta Clair Huckleberry and Leslie O. Gillen, both of whom had been married before, became engaged to be married in January, 1960. Some time in March of the same year Mr. Gillen took Mrs. Huckleberry to the office of his lawyer Mr. John Gerety, where Mr. Gerety read aloud to them a proposed antenuptial contract. We must assume that Gillen had talked with his bride-to-be about such a contract before this talk with Mr. Gerety.
Mr. Gerety handed to Mrs. Huckleberry a copy of the contract to take with her and urged that she obtain independent legal advice. Mr. Gerety also told the parties that each should give the other a statement of the property owned by them. The wife says this was done by Mr. Gillen sometime during the month of March in Mr. Gerety’s office.
On April 26, 1960, the parties signed a completed antenuptial contract and Mr. Gerety made certain that Mrs. Huckleberry had a complete copy of the final contract. Mr. Gillen and Mrs. Huckleberry were married on April 30, 1960. Mr. Gillen died on July 16, 1961. He left a will which he had executed March 25, 1959, more than a year before he was married.
The Gillen estate is shown by the inventory as having total assets of $152,578.82. Mrs. Gillen’s estate was of no substantial amount.
The antenuptial contract did provide that the wife might have a life estate in the homestead of the parties. The wife now says that there will be no way for her to pay taxes and repairs on the house and that she will have insufficient income to enable her to live in the home.
The executor in this case makes no secret of the fact that the contract in this case is based upon the contract approved in the case In re Estate of Neis, 170 Kan. 254, 225 P. 2d 110. True in the Neis case the wife received a legacy of $15,000 which Mrs. Gillen did not receive but there is no question that Mrs. Gillen was fully advised concerning the contract she signed and was advised concerning her prospective husband’s property. She was advised to obtain independent legal advice but chose not to do so. She had a full copy of the contract before signing it and was enough of a business woman to know what she was doing.
In a later case, In re Estate of Ward, 178 Kan. 366, 285 P. 2d 1081, the wife asserted overreaching by the seventy-two year old husband — a matter which Mrs. Gillen does not seem to assert — but we upheld the contract saying in the first syllabus of the case:
“Where it appears that an antenuptial contract was understandingly made and freely executed, and where there is an absence of anything showing fraud or deceit, the mere fact the intended husband did not disclose in detail to the intended wife the nature, extent and value of his property will not, of itself, invalidate the contract or raise a presumption of fraudulent concealment, and if from a consideration of all the facts concerning the situation of the parties, such as their respective ages, family conditions, property rights, etc., at the time the contract was made the trial court concludes the intended wife was not overreached, the contract should be sustained (following In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483).”
Other cases with similar holdings are: Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; Watson v. Watson, 104 Kan. 578,180 Pac. 242; In re Estate of Cantrell, 154 Kan. 546,119 P. 2d 483; In re Estate of Place, 166 Kan. 528, 203 P. 2d 132; and In re Estate of Schippel, 169 Kan. 151,218 P. 2d 192.
The instant case gets down to the point that although Mrs. Gillen was quite adequately advised of the provisions of the contract, she was quite effectively cut off without anything from her husband’s estate. All she received was her right in the homestead which the husband could not deny to her. (See In re Estate of Neis, supra, p. 264 et seq.)
On the other hand, it would seem hard to find a case where a woman was better advised of her rights by her prospective husband and his attorney.
Turning to In re Estate of Cantrell, supra, at page 551, we find the following:
“Using as a premise that under the instant contract Mrs. Cantrell was to receive no part of her husband’s property and therefore she received no equitable share of her husband’s estate, it is contended the evidence fails to show that those claiming under the husband sustained the burden of showing that Mrs. Cantrell was fully informed as to the nature, extent and value of the Cantrell’s estate at the time the contract was made, and hence the contract must be stricken down. The argument ignores in part that portion of the particular holding in the Watson case that the contract must be upheld unless fraud, deceit or unreasonable inadequacy appears.
“The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching. (See Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P. 2d 9, and cases cited.) Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties. (Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1.) It may here be said that there is nothing about the present contract which warrants application of tire last rule.
“In Hoard v. Jones, 119 Kan. 138, 150, 237 Pac. 888, a review of many of our decisions was made and it was said that while good faith should characterize such contracts, they are not only recognized, but are favored by the law when fairly and intelligently made and when just and equitable in their provisions, and that some force and effect must be given to contracts voluntarily executed.
“A leading case in this state is Hafer v. Hafer, supra. There a widower fifty-six years of age, with a family of seven children, and worth $14,000, made an antenuptial contract with a maiden lady twenty-six years of age who had $40 and two cows. Under the contract the intended wife was to receive a child’s share. At the husband’s death his property was worth $19,000. In that case it was contended the contract was void because it was not shown the husband had made disclosure of his financial condition. After discussing the good faith of the contract, the situation attending its execution, etc., and calling attention to the fact there was no claim the husband had misrepresented to or concealed from his intended wife his financial condition and that she had never expressed complaint or dissatisfaction, it was said:
“ ‘The mere fact that he may not have disclosed his assets and liabilities in detail to her, will not, in the absence of anything showing fraud or deceit, invalidate the contract, nor will it raise a presumption of fraudulent concealment; and especially is this so where the terms and provisions of the contract are so manifestly fair and reasonable as in this case.’ (1. c. 462.)
“If the statement from the Watson case heretofore quoted is to be interpreted as appellant argues, and because no provision is made for the prospective wife, there is such presumption of fraud the entire burden of establishing the contract is on those claiming under the husband, the interpretation is too broad, for other circumstances must also be considered. Unreasonable inadequacy of a provision for the intended wife, or disproportion of the share she will receive, cannot be concluded from the contract alone. What is inadequate or disproportionate can only be determined from a consideration of all the circumstances. Not only is the amount of the husband’s property a factor— consideration should be given to the situation of the parties, their respective ages, as compared to each other, their respective property, their family ties and connections, and the whole circumstances leading up to the execution of the contract and their marriage, the question in the end being whether, in view of all the facts, the intended wife was overreached. The cases cited above and those mentioned in them make that clear. And we think that consideration may also be given to the actions and conduct of the parties following the marriage as tending to show the agreement was fairly and understandingly made.”
We can but feel that the wife in the case at bar had an opportunity to understand and was capable of understanding the contract to a greater degree than the wife in the Cantrell case. Here whatever Mrs. Gillen did not understand would seem to be largely her own fault. As said in the above quotation, antenuptial contracts are favored if it appears they have been understandingly made. It would be difficult to say that in this case Mrs. Gillen did not understand what the contract amounted to at the time she signed it.
Since that was true, and since she was urged to obtain independent legal advice and did not do so, it would seem that the trial court should be affirmed. T.t is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
Defendant, Clarence S. Cox, has appealed from his conviction of the offense of larceny of an automobile, which occurred on October 21,1961.
Upon being apprehended in the state of Texas, with the car in his possession, he was returned to Linn county. Local counsel was appointed to represent him. The district court’s attention was called to the fact that a contention was being made by defendant to the effect that due to his mental condition he was unable to comprehend his position and to aid in his defense. Accordingly, under the provisions of G. S. 1949, 62-1531, a commission of doctors was appointed to conduct an examination of him. As a result of the commission’s examination and report, defendant was adjudged to be unable to stand trial, and, pursuant to the provisions of the mentioned statute, was committed to the Larned State Hospital on January 8, 1962, for evaluation and treatment. On February 22, 1962, the superintendent of that institution advised the court that, after intensive efforts to help defendant, it was felt that he had recovered to the point where he was able to understand his position and to be of assistance in his defense, and it was recommended that defendant be returned to the court for trial. Accordingly, he was returned to Linn county, and on March 30,1962, was placed on trial.
Highly summarized, the evidence showed the following:
Defendant was 39 years old and a resident of Linn county. On the day in question he had been hanging around the office of an automobile agency adjacent to a used car lot. He was acquainted with the persons in charge and appeared to them to be “normal.” Early that evening he took the car in question and drove to his home and picked up his suitcase. He drove to a town in Missouri and stopped to buy gasoline. He apprised the filling station attendant that he was indebted to the station in the sum of two dollars for gasoline previously purchased. He gave the attendant a check to cover his purchase and the old bill. There was some evidence to the effect that on the day in question defendant had been drinking. In any event, he next showed up in the state of Arkansas — still driving the car. He realized the car had no license tag and so placed on it a tag which had been issued to him and which he was carrying in his suitcase. He then proceeded into the state of Texas, and when he noticed that he was being followed by a patrol car he decided he was “going back home.” He subsequently was returned to Linn county.
At no time, either before or during his trial, did defendant deny taking the automobile — in fact, he admitted it. His entire defense appears to be that at the time of the commission of the offense he was insane — and therefore not guilty by reason of insanity. Some evidence was introduced to the effect that on various occasions defendant had been “emotionally disturbed.” There also was evidence to the effect that on the date of the theft he appeared to be “normal.”
Throughout the trial defendant was represented by capable court-appointed counsel. After hearing all of the evidence the jury found him guilty as charged.
In his appeal, pro se, defendant’s contentions appear to be that the court lacked jurisdiction to try him for the reason that he had been adjudged to be insane, and that his motion for a new trial was erroneously overruled because the evidence amply sustained his contention that he was insane at the time of the commission of the offense.
Neither of these contentions is sustained by the record.
As to the first proposition, it is clear that the court followed the provisions of G. S. 1949, 62-1531, with respect to placing defendant on trial. After undergoing treatment at the Lamed State Hospital he was, upon the findings and recommendation of the superintendent of that institution, returned to Linn county as being able to stand trial. For a discussion of matters pertaining to tbe question see State v. Severns, 184 Kan. 213, 336 P. 2d 447.
As to the matter of his sanity at the time of the commission of the offense, the rule is that the question is one for determination by the jury trying the case (State v. Hickock & Smith, 188 Kan. 473, 481, 363 P. 2d 541). See also State v. Penry, 189 Kan. 243, 368 P. 2d 60. The instructions are not abstracted and we therefore must assume that the jury was fully and properly instructed on all matters in issue, including the defense of insanity at the time of the commission of the offense (G. S. 1949, 62-1532). In fact, the record affirmatively shows that defendant’s counsel agreed that the instructions were proper and made no objection thereto. By its verdict of guilty it is evident the jury placed no credence in defendant’s contention that he was insane when the offense was committed.
We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the judgment of the trial court denying benefits to plaintiff for the period from October 30, 1960, to February 4, 1961, under the employment security law. (G. S. 1949, 44-701, et seq.; as amended in G. S. 1961 Supp., and particularly 44-709 lhL)
The first matter to be considered relates to plaintiff’s right to proceed by reason of his failure to exhaust his remedies before the board of review of the employment security division of the state labor department. However, we are of the opinion that question is not controlling in the present appeal and we shall, therefore, pass on to the merits of other questions raised.
Plaintiff, who had farmed for a number of years, was employed by the Beech Aircraft Corporation in Wichita for approximately nineteen months during 1959 and 1960 but on August 26, 1960, his employment was terminated. He thereafter registered for unemployment compensation and reported as required by the employment security law. He was unsuccessful in his applications for similar employment at aircraft factories in Wichita. He did not restrict his availability for work to any particular hours or location. After he had disposed of approximately 165 head of beef cattle, which he had pastured on approximately 960 acres of land he owned, he appeared before the examiner on or about November 14, 1960, claiming unemployment benefits.
On November 30, 1960, defendant’s examiner held plaintiff was ineligible for benefits; that although plaintiff had disposed of his cattle he had indicated he expected to replace them in the spring. The examiner concluded that even though plaintiff would accept employment, he was self-employed and not unemployed. Plaintiff thereafter appealed to defendant’s referee and on February 7, 1961, the examiner’s determination was affirmed by the referee. On November 7,1961, the employment security board of review upheld the opinion of the referee that plaintiff was not unemployed for the period claimed. On November 9, 1961, plaintiff timely filed a petition for judicial review in the district court. On March 2, 1962, the trial court entered it journal entry of judgment as follows:
“1. That the question before the defendant Board of Review was whether or not claimant (plaintiff herein) was unemployed or self-employed.
“3. That the findings of the Board of Review if supported by any evidence, are conclusive on the Court; that the Court must accept the factual questions as found by the Board of Review and cannot look behind the Board’s decision as to the facts, the credibility of witnesses, or the weight of the evidence; the court cannot substitute its judgment for the Board’s upon those factors.
“4. That there is evidence to support the findings of the Board of Review.
“It is, therefore, considered, ordered, adjudged and decreed that the decision of the Board of Review of the Employment Security Division of the Labor Department of the State of Kansas be, and the same hereby, is affirmed.”
Plaintiff’s motion for new trial was in due time overruled and this appeal followed.
Counsel for plaintiff frankly admits the employment security agencies of the various states have not solved this problem uni formly and submits authorities from other jurisdictions touching upon similar situations. However, we are not inclined to ignore our own general rules of law applicable herein which were so ably pronounced in Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856, where a retired employee sixty-five years of age, who was drawing social security benefits, made claim for unemployment compensation but was held to be ineligible for benefits by both the examiner and the referee, which decision was affirmed by the board of review. In a subsequent appeal to the district court, that court made findings and entered judgment in favor of claimant for part of the time claimed from August 9, 1959, through October 10, 1959. In reversing the judgment of the trial court, this court held:
“G. S. 1959 Supp. 44-709 (h), dealing with a court review of a decision of the Employment Security Board of Review, provides that in any judicial proceeding thereunder findings of the board as to the facts, if supported by evidence and absent fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” (Syl. ¶ 3.)
We think the evidence herein is ample to prove that plaintiff was conducting and was primarily interested in his farming operations, and we are therefore unable to say there is no substantial competent evidence to support the findings and decision of the review board and the trial court that plaintiff was self-employed and not unemployed.
Judgment affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action brought against the drivers of two automobiles whose alleged concurrent negligence caused injury to a third.
The general facts, which are not in serious dispute, may be summarized.
The collision occurred at approximately 3:30 P. M., October 29, 1960, on Highway K68 at the Bull Creek Bridge north and west of Paola, Kansas. Highway K68, designated as black top surface, is twenty-two feet in width. Bull Creek Bridge is fifteen feet, four inches in width, one hundred feet long and is posted as a one-lane bridge. There were rails protecting the approach which narrowed from the width of the highway to the width of the bridge. The highway was wet as the result of a recent rain.
The defendant, Frank C. James, was driving in a westerly direction and entered the bridge from the east without slackening his speed. He attempted to slow down but missed his foot brake. The defendant, Albert W. Phillips, was driving in an easterly direction and approached the bridge from the west. The plaintiff, Delton E. Kettler, was driving some distance behind the Phillips automobile. Phillips applied his brakes and approached or entered the approach to the bridge at a very slow speed. As James approached Phillips’ automobile, he swerved his automobile to the right striking a guard rail. This caused his automobile to skid to the left and collide with the Phillips automobile. This occurred about twenty-six feet from the west end of the bridge. At this point James lost control of his automobile which traveled some two hundred feet down the road where it collided with the automobile being driven by Kettler. Kettler had pulled onto the right-hand shoulder of the highway and had come to a stop.
Following a trial of the issues the jury returned a verdict in favor of the plaintiff and against the defendant James in the amount of Twenty-Three Thousand, Two Hundred and Fifty Dollars. It also returned a verdict in favor of the defendant Phillips for his costs.
, The defendant James filed motions for judgment notwithstanding the verdict, to set aside findings of the jury, and for a new trial. The motions were overruled and James has appealed specifying numerous trial errors.
Appellant first claims error because of the trial court’s refusal to permit witnesss Pivonca, a state trooper, to give his opinion as to whether the point of impact between the automobiles of James and Phillips occurred within the one-lane area.
The objection is without merit. The witness testified as to the width of the bridge; that the point of impact of the Phillips and James automobiles was twenty-six feet west of the west end of the bridge; that the roadway at the point of impact was eighteen feet wide, and that there was nothing to indicate that the Phillips automobile had crossed the center line of the road.
Any opinion of the witness as to whether Phillips’ automobile had entered the one-lane area could be nothing more than an opinion dealing with a question which was for the jury’s determination — was Phillips negligent in entering the approach to the one-lane bridge?
The appellant complains of the refusal of the trial court to give requested instructions. One request was as follows:
“You are instructed that for traffic control purposes, the term ‘bridge’ includes not only the structure spanning a river, creek or ravine, but also includes approaches by which access to the bridge is obtained. Such approaches being as much a part of the appendages to the bridge as the bridge itself.”
Appellant cites authorities defining the term “bridge” as including the approaches. There may be situations in which the approaches should be considered as a part of the bridge. Liability for improper construction, maintenance or repair would present fair examples. However, a wide approach is not necessarily part of a narrow one-lane bridge when considering whether the driver of an automobile negligently entered a one-lane area.
One of the questions for the jury’s consideration was whether appellee Phillips entered or approached too close to the one-lane area. Any instruction that included all of the approach as part of the narrow bridge would have confused the jury on the issue.
An instruction, although correct, should not be given on issues not involved in the lawsuit. (Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235.)
Other instructions requested by the appellant were sufficiently covered by the instructions given. A court should not single out a particular theory or circumstance and give it undue emphasis, even though the requested instruction correctly states the law. Requested instructions are properly refused where the substance is contained in the instructions given. Kurdziel v. Van Es, 180 Kan. 627, 306 P. 2d 159; Collingwood v. Kansas Turnpike Authority. 181 Kan. 43, 310 P. 2d 211, on rehearing 181 Kan. 838, 317 P. 2d 400; Board of Park Commissioners v. Fitch, 184 Kan. 508, 337 P. 2d 1034; City of Wichita v. Depee, 185 Kan. 22, 340 P. 2d 924; Millers’ Nat. Ins. Co., Chicago, Ill., v. Wichita Flour M. Co., 257 F. 2d 93; Williams v. Hendrickson, 189 Kan. 673, 371 P. 2d 188; Goldman v. Bennett, 189 Kan. 681, 371 P. 2d 108.
The appellant contends that the jury’s answer to special questions acquitted him of all negligence charged in the petition.
The petition contained allegations of failure to exercise due care, failure to have automobile under control, and failure to slow down. The jury in answering the question as of what the negligence consisted, stated:
“Negligent carelessness. Failing to drive at a speed safely required for protection of interest of other persons which may cause injury.”
We can find very little distinction between the phrase “failure to slow down” and “failure to drive at a speed safely [safety] requires.” The rule of consistency, in the negligence charged in the petition and the negligence found by the jury, does not require that the same adjectives, adverbs, or phrases be used. The rule is satisfied if the language used is reasonably synonymous.
“. . . [A] jury of laymen is not required to answer special questions in the precise language used by a lawyer in drafting a pleading. . . .”
(Spencer v. Eby Construction Co., 186 Kan. 345, 350, 350 P. 2d 18. See, also, Moorhouse v. Robbins, 145 Kan. 157, 64 P. 2d 5, and Jacobs v. Hobson, 148 Kan. 107, 79 P. 2d 861.)
The appellant claims error because of misconduct of the jury. It appears that one of the jurors referred to a dictionary while at home overnight during the jury’s deliberations. He ‘looked up” several definitions, including the word negligence, and made notes. He read the notes to the other jurors after they had reached a verdict but before they retired from the jury room. He did not know whether the foreman used his notes in writing the answers to special questions. He followed the court’s instructions as to the definition of the word “negligence.”
The record does not establish with any definiteness that the dictionary definition was used in arriving at a verdict. The most that can be said is that the dictionary definition might have influenced the jury. This is not sufficient to satisfy the rule that a judgment will not be reversed unless it appears that substantial rights of the complaining party have been prejudiced.
The juror used “Webster’s Dictionary,” “a regular school dictionary.” The definition which the juror copied is not disclosed by the record. However, the definition of the word negligence is found in Webster’s New Twentieth Century Dictionary Unabridged contains nothing which would be inconsistent with the definition as set forth in the court’s instructions.
The question is governed by the decision of this Court in the case of Pulkrabek v. Lampe, 179 Kan. 204, 293 P. 2d 998. The court stated in the opinion:
“Once the true rule for determining whether the trial court properly concluded the misconduct complained of did not require the granting of appellant’s motion for a new trial it becomes obvious the sole question remaining is whether the record as presented affirmatively establishes that her substantial rights were prejudiced by the jury’s having procured the dictionary and read the definition of the word ‘proximate’ appearing therein. In approaching a decision on this question it must be kept in mind it is conceded that neither the court, the appellees nor the appellant had anything to do with the jury’s action; that no one contends such action was influenced by bad faith or a desire on the part of the jury to work injustice as between the parties; and that the court, without objection by either party, had previously instructed the jury that ‘Proximate cause is that cause which in a natural and continuous sequence, unbroken by any new independent cause, produces the result complained of, and without which the result and injury would not have occurred.’
“Upon careful analysis of the heretofore quoted dictionary definition of the word ‘proximate’ and the trial court’s instruction regarding ‘proximate cause’ we find nothing in the term ‘proximate,’ as defined, which can be regarded as inconsistent with the concept of ‘proximate cause’ as set forth in the instructions. It follows we would not be warranted in holding that in and of itself the mere fact the jury read such definition is sufficient to make it affirmatively appear the substantial rights of the appellant were prejudiced by that action.
“We believe there is another sound reason for reaching the conclusion just announced. From the record presented it appears that the trial court, which we pause to note was in much better position to pass on the situation than this court, was convinced that the misconduct of the jury was not such that prejudice therefrom resulted against the appellant. In that situation the general rule, with respect to the disturbance of a ruling such as is here involved, is well established. See 39 Am. Jur., New Trial, 87 § 73, which reads:
“ ‘The refusal or denial of a motion for a new trial for alleged misconduct on the part of the jury is, as a general rule, a matter within the discretion of the judge presiding at the trial; and unless it appears that this discretion has been abused, that there has been palpable error, or that the judge has refused to review and consider the evidence by which the consideration of the motion should have been guided or controlled, his refusal to grant a new trial will not be disturbed. . . .’” (pp. 208, 209, 210.)
The appellant contends that the verdict in the amount of twenty-three thousand two hundred and fifty dollars is excessive. Appellee Kettler was a man thirty years of age. There was medical testimony to the effect that his injuries, diagnosed as lumbo-sacral sprain, a possibility of disc pathology of the lumbo-sacral disc and trumatic neurosis, were the result of the accident. He was carrying on rather large farm operations but is now unable to do heavy work. He can work only three or four hours per day. He has' greatly curtailed his operations.
The verdict would not appear to be excessive under the facts disclosed by the record.
In Neely v. St. Francis Hospital & School of Nursing, 188 Kan. 546,363 P. 2d 438 it is stated;
“• . . This court fully and clearly set out the manner in which the question of excessiveness of a verdict should be considered in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, where it was stated:
“ ‘In the nature of things, it is impossible to formulate a hard and fast rule on the question of the amount of damages to be allowed in a personal injury action for the simple reason that determination of the matter necessarily depends upon the facts and circumstances of each particular case.
“ ‘Generally speaking, it may be said that no verdict is right which more than compensates, and none is right which fails to compensate. Pain and suffering have no known dimensions, mathematical or financial, and there is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of exact proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries sustained, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.’ (Syl. ¶¶ 2, 3.)
“On the record before us we cannot say the amount of the verdict is such as to shock the conscience of the court and we therefore hold the verdict was not excessive.
The appellant’s most serious complaint is lodged against a written instruction given by the court during the jury’s deliberation and in the absence of counsel. The jury began its second day of deliberation at 9:00 o’clock A. M. At 10:00 o’clock it sent a note to the court asking:
“Can we hold Mr. Phillips partily but less responsible than Mr. James."
The court wrote on the note,
“No, 1-11-62 10:02 a. m.
Marion Beatty”
and returned it to the jury.
The appellant contends that the instruction was not only erroneous but that it was improperly given without requiring the jury to return to the court room and receive the proper instruction in the presence of counsel.
The appellants specific complaint is that the instruction caused the jury to render a verdict in favor of his codefendant Phillips. The matter is not properly before this court for consideration.
The only manner in which the release of Phillips could affect the appellant would be in his right to contribution after judgment was rendered. The liability of the appellant to appellee Kettler would not be affected by a verdict for or against Phillips.
The appellee Kettler made no objection to the verdict rendered in favor of appellee Phillips and took no appeal from the verdict or judgment in his favor. The appellant in the court below made no objection to the verdict in favor of Phillips. Appellant’s specifications of error make no complaint of the verdict and judgment in favor of Phillips. The verdict and judgment in favor of Phillips has become final in the absence of an appeal therefrom. Appellant’s objection to an instruction favoring his codefendant did not lessen his liability to appellee Kettler.
If appellant desired a new trial in order that his codefendant Phillips be kept in the case for the purpose of contribution after judgment, he should have objected to and perfected an appeal from the verdict and judgment in favor of his codefendant. The granting of a new trial at this stage of the proceedings would not accomplish the appellant’s purpose.
Pennsylvania is one of the few states in which a defendant is permitted to challenge the judicial release of a codefendant. Schwartz v. Jaffe, 324 Pa. 324,188 Atl. 295.) However, it is required that timely objections be made to the verdict in favor of the codefendant. In East Board Top Transit Co. v. Flood, 326 Pa. 353, 192 Atl. 401, the court stated:
“The trouble with the position in which appellant finds itself is that, neither at nor after the trial, did it avail itself of its right to insist upon a verdict fixing the status of the individual defendant [codefendant]; it has therefore only itself to blame for the situation of which it now complains. The rendering of a verdict is subject to the same rules in regard to objections, exceptions and waivers as apply to all other parts of the trial. . . . Since appellant remained silent, and without complaint allowed the’ jury to be discharged, it would manifestly be unfair to plantiff to grant a new trial after a recovery of a verdict against appellant on the merits of the case. . . .’’ (p. 357.)
It should be understood that in disposing of the above question the court is not passing on the right of a defendant to object to a co-defendant being released from liability by erroneous rulings of the court. Neither is the court passing on the propriety of the instruction in question or the manner in which it was given.
A careful examination of the record discloses no reason why a new trial should be granted.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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Ter Curiam:
This action was brought challenging the validity of existing apportionment acts relating to the state Senate (G. S. 1949, 4-102) and to the seats in multi-district counties of the House of Representatives (G. S. 1961 Supp., 4-103), in light of the 1961 census.
Over fifteen years have passed since the legislature has reapportioned the seats of the state Senate, but all the seats of the House of Representatives were reapportioned in 1961. Since there will not be a primary or general election of members of the legislature until 1964, and since the 1962 census has been certified as the official state census upon which an apportionment of seats of the legislature in question could be based, and since the facts pre sented to this court are available to the members of the regular 1963 Session of the Legislature which is presently convened, and since the duty to reapportion is legislative in nature and is committed by our constitution to the legislature, we find that no declaration should now be made with respect to the invalidity of the existing apportionment statutes of the state Senate and to the seats in multi-district counties of the House of Representatives, and we withhold decision on the merits of all issues presented in order to afford the 1963 legislature full opportunity to heed the constitutional mandate to reapportion in accordance with Art. 10, §§ 1 and 2.
If there is to be a judicial disruption of the present legislative apportionment or of the methods or machinery for electing members of the legislature it should not take place unless and until it can be shown that the 1963 legislature has failed to perform its constitutional duty to reapportion.
Jurisdiction of this appeal is retained until further order of the court. | [
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The opinion of the court was delivered by
Schboeder, J-:
This is an appeal in a criminal case from a conviction and sentence of robbery in the first degree and felonious assault.
The controlling question is whether the admission of evidence concerning other offenses, in the nature of confessions and convictions, prevented the appellant from having a fair and impartial trial.
The evidence disclosed that at approximately 9:15 p. m. on the evening of October 24, 1961, Sharon Burns, age 15, was walking on the north side of Douglas Avenue in Wichita, Kansas, approaching the intersection of Water Street from the east, when a man who gave his name as Larry Richards or Richardson drove his automobile alongside of her at the curb and asked her if she wanted a ride. She did not answer and continued to walk in a westerly direction. She crossed the intersection of Water Street to the bus stop where she wanted to catch the 9:32 bus to take her home from a Junior Achievement meeting which she attended. The man asked her again if she wanted a ride and she refused. After repeated efforts to get her into the car, he stopped the vehicle and approached her on the sidewalk. She backed away from him and told him to go on. She refused to give him her name and was about to cry when she saw an object in his hand which she described as being white and shaped like a bottle- She started screaming, saying “don’t, don’t,” but he struck her and she fell to her knees and dropped her purse. She testified:
“I sort of crawled on my knees and I got up and started running. And I looked back and I saw him. He started for his car and then he saw my purse there and he went back and got it. And then he got in the car. And I was running west on Douglas; I was running, and he came up, he got in the car and then he came up beside me and asked me if I was sure I didn’t want to get in.”
Two boys in another automobile then came to her assistance and called the police.
Sharon was subsequently taken to the hospital where four stitches were taken in her scalp. While at the hospital she identified the appellant’s picture from a group presented to her. Later that evening she identified the appellant in a line-up at the Wichita police department. Prior to the appellant’s appearance in the lineup she identified his voice from outside the room where she was waiting.
The information charged the appellant with robbery in the first degree in one count, and felonious assault in another count. He was tried before a jury and found guilty on both counts of the information as charged.
During the voir dire examination of the jurors, the attorney for the state made reference to the fact that the appellant had been convicted of other crimes. Objection was made to these references and the appellant unsuccessfully moved the court for a mistrial. No record was taken of the voir dire examination, and in view of our decision herein no further consideration will be given to this point relied upon by appellant for reversal.
Counsel for the state in his opening statement informed the jury the appellant had committed offenses other than the ones for which he was charged in the case at issue. Such reference was properly challenged and is also presented as a ground for reversal on appeal.
During the state’s case in chief O. A. Rallinger, deputy county attorney, was permitted to testify over objections of the appellant. Rallinger testified that he was employed in the county attorney’s office of Sedgwick County on the 3rd day of February, 1958, and knew the appellant in this action on that occasion as Larry Jack Stephenson; that he was present in the Court of Common Pleas when the appellant was before the court, and had a recollection of the occurrences that took place at that time; that the appellant pleaded guilty to petty larceny in a case on which he had been working for approximately three to four weeks. He was permitted to testify to matters within his knowledge which occurred over a period of approximately thirty minutes just prior to the appellant entering the foregoing plea to petty larceny. He said the original act involved the taking of a purse from a lady in Wichita; that the original charge was a felony involving an incident where the appellant met a woman that he did not know, and he took the purse from the woman after having talked to her just a very short time; that the appellant’s attorney at that time was willing to plead the appellant guilty to a charge of petty larceny because the amount of money in the purse which was taken was not sufficient to make it grand larceny under the grand larceny section; and that a plea to petty larceny was accepted because the complaining witness did not want to testify.
Floyd L. Williamson, employed by the Wichita police department, was permitted to testify over the appellant’s objection concerning conversations with the appellant in regard to robberies. He testified:
“Q. And what was that conversation?
“A. This was part of a crime that he had committed that he wanted to tell me about.
“Q. Now, can you recall what he told you about any robberies?
“A. Well, it was a purse-snatching. The area where it was committed in is a matter of record. I don’t have that all in my mind since 1958.
“Q. Did you make a report on what he had told you?
“A. Yes, I did.
“Q. Would you like to look at the report to refresh your recollection?
“A. I would. This case that was talked about at this time was a purse-snatching from a woman in an alley in the 700 block on North Market. It happened at 8:45 in the evening on December the 20th of 1957.
“Q, Just relate to us what your conversation with the defendant Larry Jack Stephenson was.
[Objection overruled.]
“A. He stated that he had been roaming up and down the alleys actually looking for someone to roll, is what he had stated, and that he had seen this woman walking down the street. He ran up and grabbed her purse, ran away with it. She only had approximately $50 in cash in the purse, and he stated that the purse should have been found as he had thrown it away a few feet from where he had taken it.
“Q. Did you have any conversation with him in regard to any other robberies?
“A. He stated that he had committed approximately three.
“Q. Did he tell you anything about these roll j’obs?
“A. The only one that I recall was the one involving a colored man, and this was supposedly on 21st Street. However, I found no record of that particular . . .
“Q. Did he tell you what he did?
“A. Yes, he stated this colored man was in a drunken condition, that he slugged him and took his money.
“Q. Did he tell you where this took place?
“A. Where? On 21st Street.
“Q. Did he tell you about any other robberies in any part of the city?
“A. Well, other than the other two, I can’t recall the other two, sir.
“Q. Did he tell you where they took place?
“A. Possibly at that time, but I don’t remember it.
“Q. Did you discuss with this defendant at that time or any other time the commission of any other crimes?
Mr. Arnold: Obj’ection. Any other crimes have nothing to do with this case.
“The Court: I will sustain it.
“Q. Did you discuss with him, or did he tell you about any other thefts that he had committed?
“A. Yes, he did.
“Q. And can you tell us what that was?
“A. There was a large number of auto accessory thefts.
“Mr. Arnold: Now, objected to as a conclusion.
“The Court: He may state what he said.
“Q. Do you recall how many he told you about?
“A. I believe all told there were 74 cases.
“Q. These all involved thefts?
“A. Yes.
“Q. Did he tell you what he took or what happened, or what he did with the property he took?
“A. Well, some of it had been stashed, some of it had been used on cars, and some of it had been sold. Some of it we recovered and some of it we didn’t.
“Q. You mean you recovered after he told you about it?
“A. Yes.
“Q. He told you where the property was?
“A. Yes, he took me to it.
“Q'. And you went out and recovered it?
“A. Yes.
“Q. You said there were how many?
“A. I believe it was 74.”
On cross examination Mr. Arnold testified that the appellant was never prosecuted on the seventy-four auto accessory thefts. He also testified the appellant’s police record was “Very minute” — . he believed two offenses.
The state introduced in evidence a file, case no. A-80148, entitled State of Kansas v. Larry Jack Stephenson, in the district court of Sedgwick County, Kansas, the journal entry of which indicates that the appellant on the 19th day of January, 1960, pleaded guilty to the offense of grand larceny and was sentenced accordingly. This was admitted over objection.
The defendant’s evidence consisted of the testimony of his grandmother, Mrs. Anna Ross, with whom the appellant had lived since birth. On cross examination Mrs. Ross was asked whether the appellant was in the Reformatory for a year prior to October, 1961. Over objection the court required her to answer, “If she knows.”
The appellant did not take the witness stand and never testified.
The principal contention of the appellant is that the introduction into evidence of confessions and convictions of other crimes committed by the appellant denied him a fair and impartial trial. This point is well taken.
The basic rules governing situations of this type were stated in State v. Myrick, 181 Kan. 1056, 317 P. 2d 485, as follows:
“The well-recognized general rule prevailing in this and other jurisdictions is that evidence is inadmissible to prove that the accused has been convicted of another crime independent of, and unrelated to, the one on trial; it is not competent to prove one crime by proving another. [Citing cases.] All evidence, to be admissible, must be relevant, and the general rule is based upon the principle that evidence of an unrelated prior conviction is irrelevant to prove the offense charged, and has a tendency to prejudice the minds of the jury against the accused and to predispose them to a belief in his guilt. Further, that evidence of a prior conviction, when offered in the state’s case in chief, violates the rule of policy which forbids the state initially to attack the character of the accused, and that which prohibits proof of bad character by particular acts (1 Wharton’s Criminal Evidence, 12th ed. § 232, p. 492). The rule against the admissibility of such evidence should be strictly enforced. (State v. Frizzell [132 Kan. 261, 295 Pac. 658], supra, Syl. ¶ 1.)
“To this general rule there are several distinct exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime (1 Underhill’s Criminal Evidence, 5th ed. § 206, p. 464; 1 Wharton’s Criminal Evidence, 12th ed. § 233, p. 498; 22 C. J. S. Criminal Law, § 683, p. 1089). One is that proof of an independent crime is admissible in the discretion of the court, and may be received in the state’s case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, to prove malice and to rebut special defenses. [Citing cases.] If the evidence is competent, material and relevant to the issues on trial, it is not rendered inadmissible because it may show that the defendant is guilty of another crime, or has been previously convicted. Such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge on trial (1 Wharton’s Criminal Evidence, 12th ed. § 233, p. 498). While prejudice of other crime or prior conviction is not removed where such evidence is found to be relevant under the exception to the general rule, courts have declared its relevancy outweighs the prejudice, and it is, therefore, proper for the jury’s consideration under appropriate instructions.” (pp. 1058, 1059.)
A previous landmark case on this subject is State v. Frizzell, 132 Kan. 261, 295 Pac. 658, where the court said the exceptions are founded upon as much wisdom and justice as the rule itself, and the rule should be strictly enforced and should not be departed from except under conditions which clearly justify such departure.
In the case at bar the county attorney prior to trial was served notice that the appellant intended to enter a plea of alibi at the trial of the case. It was therefore apparent the principal issue of fact in the case would be the matter of the identity of the person committing the offenses. Evidence of other similar offenses was made more urgently necessary in order to rebut the defense of alibi. (State v. Frizzell, supra.)
Conviction is not a prerequisite to the admission of other similar offenses in evidence, if the requirements for its admission are otherwise fulfilled. Evidence merely showing the commission of other similar offenses seems to be sufficient. This is particularly true in cases involving sexual offenses. (State v. Stitz, 111 Kan. 275, 206 Pac. 910; and State v. Whiting, 173 Kan. 711, 252 P. 2d 884.) Evidence of other similar transactions where the accused was charged with embezzlement was held proper for the purpose of showing intent in State v. Robinson, 125 Kan. 365, 263 Pac. 1081. Another case in point is State v. Harper, 137 Kan. 695, 22 P. 2d 454.
The appellant in the instant case was charged with offenses committed against the person of another — robbery and assault. Under the circumstances presented by the facts in this case, evidence of other similar offenses would be admissible to prove identity of the person committing the offense, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, and to rebut the special defense. Such similar offenses would include “purse snatching” and “roll jobs” previously committed by the appellant. Remoteness in time affects the weight to be given such evidence, rather than its admissibility. (State v. Fannan, 167 Kan. 723, 727, 207 P. 2d 1176.)
On another point the appellant contends the state has not made out a prima facie case. He argues the most the state’s evidence proved in this case was simple assault because the assailant had left Sharon without picking up the purse, and then returned to pick it up, thus showing no intent to rob at the time the act was committed. This was a question for the jury to determine, and certainly evidence of other similar offenses committed by the appellant would assist the jury in determining the question of intent. (See, State v. Fannan, supra.)
The appellant makes ho objection to the instructions given by the court and we must assume, insofar as the record discloses, the jury was properly instructed concerning the limited purpose for which evidence of other similar offenses was admissible.
The record, however, presents a more serious question — that relating to admissions or confessions made by the appellant as to other offenses.
In State v. Myrick, supra, it was said:
“. . . However, we find the general rule to be that a statement in the nature of an admission or confession, to be admissible, must relate to the offense in question. . . .” (p. 1060.)
While the point was not directly before the court in State v. Winchester, 166 Kan. 512, 203 P. 2d 229, the court had this to say:
“It is not clear as to just why the state offered or the court admitted in evidence before the jury the foregoing colloquy largely between the chief of police and the county attorney! Certainly this so-called ‘statement’ is not in the nature of a ‘confession’ by the defendant of the offense for which he was being investigated, and nowhere in the record is it shown that that por tion relating to prior offenses by the defendant was offered for the purpose of showing his alleged tendencies to commit the crime in question, even assuming that under the state of the testimony such evidence was admissible! The state argues that the admission of this statement in evidence was not error for the reason that since the defendant was present the conversation between the chief of police and the county attorney was not hearsay — that the defendant had the opportunity to deny the conversation was had — and since he has not done so, he is not in a position to complain.
“We cannot agree with this contention and hold that the admission of such evidence was clearly erroneous and highly prejudicial to the rights of the defendant. If the state desired to use the testimony of the chief of police, he should have been called as a witness. Furthermore, evidence of other offenses by the defendant in the state’s case in chief may only be offered under certain circumstances and when surrounded by certain legal safeguards — not here present and which need not here be discussed.” (pp. 515, 516.)
We hold upon the facts here presented where one is charged with a criminal offense, a statement in the nature of an admission or confession, to be admissible in evidence, must relate to the offense or offenses for which the accused is on trial. Here the testimony of admissions and confessions made by the appellant related to independent offenses. These admissions and confessions were made long prior to the commission of the offenses for which the appellant was on trial. Furthermore, the seventy-four auto accessory thefts to which fleeting reference was made by the police officer are not sufficiently similar to the offenses for which the appellant was on trial to be admissible under any of the exceptions to the rule. (See, State v. Aldrich, 174 Kan. 335, 255 P. 2d 1027; and State v. Fannan, supra.)
We are not confronted with circumstances where the statement of the defendant included a reference to prior offenses, as well as to the offense charged. In that situation where there can be no separation of the relevant from the irrelevant, it has been held the jury may consider the entire statement under proper instructions. (State v. Cowen, 56 Kan. 470, 43 Pac. 687; and see, State v. Winchester, supra; and State v. Myrick, supra.)
Under the foregoing rules it follows that the appellant in the instant case has been denied a fair and impartial trial by the erroneous admission of evidence of other offenses.
A fortiori, reference to other offenses committed by the accused, if not admissible in evidence, would be improper in the opening statement. However, if evidence of similar offenses is admissible, it would be proper to make reference to such evidence in the open ing statement. (See, State v. Frizzell, supra; and State v. Robinson, supra.)
In view of the foregoing other points raised by the appellant become immaterial.
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The opinion of the court was delivered by
Fatzer, J.:
In this workmans compensation case the examiner made an award of compensation to the claimant, which was approved by the director of workmen’s compensation. Upon appeal to the district court, findings of fact were made and the court entered its conclusion of law that the accident did not arise out of and in the course of claimant’s employment with Centex Construction Company, Inc., and denied an award of compensation. The claimant has appealed.
The usual preliminary features of a compensation case such as employment, being under the act, notice of the alleged accident, demand for compensation, and amount of wages, are not controverted. No point is urged as to the fact of claimant’s accidental injury which occurred on August 17, 1960, or about his actual disability. The serious question presented is whether the findings of fact made by the district court were supported by substantial evidence and support the conclusion of law that the accident did not arise out of and in the course of claimant’s employment with the respondent.
The findings of the district court are quoted and summarized: The claimant was employed by respondent as a cement mason foreman at respondent’s job site on the Capehart Housing Project, approximately seven miles south of Topeka, and one-half to one mile west of U. S. Highway 75. On August 16, 1960, claimant suffered an eye injury while working for respondent and after reporting to work on the morning of August 17, he asked for and received permission to visit a doctor about the eye injury. Claimant left the job site sometime after 10:30 and approximately noon, driving his own pickup truck, and proceeded to Highway 75, thence north to Topeka where he visited the doctor. Upon leaving the doctor’s office, instead of turning south on Highway 75 to return by the route he had come to Topeka, claimant proceeded west on Tenth Street to Fairlawn Road, where his son operates a service station. Fairlawn Road is approximately three miles west of Highway 75. Claimant stopped at the service station to have his son call claimant’s wife to report the results of the visit to the doctor. While at the service station, claimant had his truck greased, and ate his lunch which he carried with him. When the truck was greased, claimant left the service station and drove south on Fairlawn Road to Twenty-first Street, turned west on Twenty-first Street and stopped at the Silver Spur Tavern where he purchased a bottle of pop. Leaving the Silver Spur, claimant proceeded on west on Twenty-first Street to Wanamaker Road, which is one mile west of Fairlawn . Road, turned south on Wanamaker Road to the Dover Road, turned east and drove to the Burlingame Road where he turned south. About one-fourth of a mile south of the intersection of the Burlingame Road and the Dover Road, claimant drove into a cloud of dust and collided with a road sweeper, receiving a serious injury to his knee and other injuries. It is for these injuries that claimant now seeks compensation. The location where the accident occurred was approximately one mile west and one-half mile north of the respondent’s job site, and the time was approximately 1:00 p. m.
The claimant was paid one-half hour overtime per day by respondent for the use of his truck, but this was no longer in effect at the time of the accident, although claimant was allowed to use company gasoline to drive his truck around the job site and to and from his home.
In concluding that the accidental injury which the claimant sustained did not arise out of and in the course of his employment with the respondent, the court made the following findings upon which it denied compensation:
No. 1. “. . . that the automobile accident in which the claimant received his injury was not caused by the negligence of the employer. . . .”
No. 2. “. . . that although the claimant had been permitted to go to the doctor’s office the same was not a part of his employment. . . .’’
No. 3. “. . . that the claimant went to the doctor’s office on his own decision over his lunch hour. . . .”
No. 4. “. . . that the claimant had further abandoned his trip to the doctor’s office and had deviated from said trip, and had, for his own convenience, gone to his son’s service station, where he ate his lunch and had travelled a considerable distance from Topeka, Kansas, before commencing to return to his place and employment and had not, when said accident occurred, returned to his place of employment. . . .”
In discussing the various contentions of the parties and in determining whether there was substantial evidence to support the district court’s finding of fact and its conclusions of law, it is necessary to make a somewhat detailed analysis and narration of the evidence.
On June 23, 1960, the claimant suffered an injury to an eye which required medical treatment. The respondent furnished medical treatment and sent claimant to the doctor on company time and paid for the gasoline to be used in his pickup truck as it was under the employer’s direction that claimant keep his gasoline tank filled with company gasoline. It was respondent’s policy to direct injured employees to report to a doctor in Topeka on company time and on company pay. The claimant reported several times to the doctor for treatment of the eye, and payment of the doctor’s charges was made by the employer or its insurance carrier.
The claimant continued doing the heavy work of a cement mason even though he was foreman, and on August 16, 1960, as he came out of a building then under construction he had a sharp pain in the eye previously injured, either from something striking the eye or by some unknown cause. His eye hurt severely but he went home the night of August 16, and reported back to work at 8:00 a. m. on the morning of August 17. After reporting to work claimant spoke to Charles Mankin, his superintendent, concerning his eye injury and he was directed to go to the office of the company and get a ticket and report to Topeka to see Doctor Bridwell for treatment. He testified that he did not go to the office and get a ticket immediately, “inasmuch as we know that the doctors don’t get to their offices before 10:00 or 11:00 o’clock, you can’t get in to see one.” There was a conflict in the testimony as to the exact time the claimant left the construction site, but the evidence showed that he went to the company office sometime beween 10:00 and 11:30 a. m. and secured the ticket authorizing him to visit the doctor.
Forbes Air Force Base lies immediately east of Highway 75 for more than the entire distance of Capehart Housing Project, and a large warehouse area lies immediately west of Highway 75 and between the base and Capehart. The evidence showed that there were three roads used by employees of respondent traveling from and to the housing project. Two roads connected with Highway 75 to the east and one road connected with a county road immediately to the west. Of the roads connecting with Highway 75, one was referred to as the “north” road and the other as the “south” road. The field office manager and the office manager of respondent testified for appellees, and both testified that at the time in question the Air Force had signs and postings around the project and along the “south” road directing employees and personnel of respondent to enter the project from the west. The office manager testified that the Air Force wanted “to eliminate, as much as possible, trailers and trucks, and the heavy traffic through” the entrances from Highway 75. He further testified that “the west (road) was the proper route for him (claimant) to enter the project; that it is the route upon which he was hurt.”
Testifying as to the route he took to Topeka and the bad road going to Highway 75, the claimant stated:
“I left the area where I was working and went down to the main office and got a slip to go to the doctor, and I tried to go out north, that road was blocked toward 75, so I turned around and went back by the office and out the other (south) road which they were working on and it was pretty near impossible to get through.”
He further testified that he ended up on Highway 75 and drove to Topeka in his own pickup truck using company gasoline and was on company time and when he was still under contract with the company for the use of his truck.
Mankin testified by deposition for the respondent that he knew about the claimant’s eye injury and sent him to the doctor for treatment; that he was paid for the day although he worked only part of the day; that he went to the doctor on company time; that he (Mankin) knew the claimant was using company gasoline and that claimant went to the doctor in his own truck with Mankin’s permission, and that the reason for permitting claimant to use company gasoline in his truck was that,
“He run back and forth. He was all over the project looldng after the work. I felt he was entitled to the gas since he was running all over the project taking care of the work, as much territory as we had to cover. I could not see that he had to furnish his gasoline because it was a good size project, and he run back and forth with the truck.”
Mankin further testified that the claimant was also authorized to use company oil in his truck, however, the claimant testified he did not use it because, “it wasn’t my brand of oil.”
After being treated by the doctor, due to the heavy traffic on Highway 75 and the bad road that he traveled going to Topeka, claimant took an alternate route back to the work area. He drove west on Tenth Street and stopped at his son’s service station at Tenth and Fairlawn where he had his truck greased, and during that period of time which was his regular lunch period, he ate his lunch. He then proceeded south on Fairlawn, west on Twenty-first Street, and stopped at the Silver Spur Tavern for a bottle of pop. He continued driving west to Wanamaker Road, followed Wanamaker Road to the Dover Road, turned east and drove to the Rurlingame Road, and was on the normal route back to the project when he suffered an accident and was severely injured. He was taken to the hospital by ambulance. The claimant made the following answers to questions asked with respect to his general route going to the project every day:
“Q. What route do you generally take going to and from the base, Centex? A. From town, I generally hit out Tenth Street to Wanamaker Road and over and in. Q. Why do you take that route? A. Well, you have so much traffic on 75 that at times you can spend an hour and a half going out on traffic. I have spent as much as two hours 25 minutes going out on 75. Q. This is during the noon hour going back? A. It was. Q. So what route did you choose to take? A. I went out Tenth to Fairlawn Road. . . . Q. All right. Now, you stopped and got your pop and you were back in your truck and you are headed back towards Centex on the normal route? A. That is right.”
When inquiry was made as to why he did not go back the short route, the claimant made the following answers:
“Q. Was there anything to have kept you from turning to the left or south and going out Highway 75 to the Centex job? A. Yes, Q. What? A. Traffic for one thing and the bad road at the other end. Q. I mean, you came in that route? A. That is right. Q. And you could, of course, have gone back that route. A. Yes, I suppose a fellow could have. Q. All right. A. I can make ten minutes more time than going out 75.”
There was evidence that the lunch period was from 12:00 to 12:30, and claimant testified that his accident occurred at 1:00 o’clock. However, the construction engineer on the housing project testified that he was returning from lunch and arrived at the scene of the accident very shortly after it occurred; that claimant was still in the truck, and it was approximately ten minutes before 1:00, and that the company took claimant’s truck to the housing project.
We first refer to what we have designated as finding No. 2, that although the claimant had been permitted to go to the doctor’s office the same was not a part of his employment. Under the facts and circumstances presented, the finding is erroneous as a matter of law.
Under our workmen’s compensation act (G. S. 1961 Supp., 44-510) one of the primary duties of an employer to an injured workman is to furnish him such medical, surgical and hospital treatment as may be reasonably necessary to cure and reheve the workman from the effects of the injury and restore his health, usefulness and earning capacity as soon as possible. The liability of an employer to an employee arises out of a contract between them and the terms of the act are embodied in the contract. (Fougnie v. Wilbert & Sckreeb Coal Co., 130 Kan. 410, 286 Pac. 396; Leslie v. Reynolds, 179 Kan. 422, 295 P. 2d 1076.) Section 44-518 provides that an employee must submit to medical treatment, or lose his benefits during the period that he refuses to submit to non-dangerous medical treatment.
The evidence is clear that the claimant suffered accidental injury to his eye on August 16, 1960, in the course of his employment. The respondent was obligated to furnish medical treatment, and that could only be procured at the doctors office in Topeka. Tire directions of Mankin were sufficiently comprehensive to embrace all the treatment necessary to heal the eye. It would be folly to say that the claimant’s trip going to and from the doctor’s office did not “arise out of’ the nature, conditions, obligations, or incidents of his employment. (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197.) In Larson’s Workmen’s Compensation Law, Vol. 1, p. 186, it is said:
“It should not, therefore, be necessarily concluded that anything happening to an injured workman in the course of a visit to the doctor is compensable. To get this result, there should be either a showing that the trip was in the course of employment by usual tests, or that the nature of the primary injury contributed to the subsequent injury in some way. . . .”
See, also, Fitzgibbons v. Clarke, 205 Minn. 235, 285 N. W. 528; Governair Corporation v. District Court (Okla.), (1956), 293 P. 2d 918; John v. Fairmont Creamery Co., 268 App. Div., 840, 50 N. Y. S. 2d 253. As previously indicated, the claimant was paid during the trip and both the trip and the treatment were authorized by the respondent. There can be no question but that securing medical treatment in Topeka was in the course of claimant’s employment and we have no hesitancy in holding that the district court erred in finding that the trip to the doctor’s office was not a part of claimant’s employment.
A complete review of the record reveals no evidence to support finding No. 3, that the claimant went to the doctor’s office on his own decision over his lunch hour. The claimant and the respondent are in accord that claimant was directed to go see the doctor in Topeka, and that it was respondent’s policy to send all injured employees to the doctor for medical treatment. Although the evidence was conflicting as to the exact time of claimant’s departure from the work area, all of the evidence was that he started to the doctor’s office between 10:00 and 11:30 a. m. on August 17. While the evidence does not show the time the claimant arrived at the doctor’s office, how long he may have had to wait, or how long the treatment took, it is clear that after being treated by the doctor, he drove to his son’s service station, ate his lunch, and after the lunch period had passed, he left the station and followed his normal route back to the work area. There being no substantial evidence to support finding No. 3, it follows that the conclusion of law based thereon was erroneous as a matter of law.
We shall combine what we have noted findings Nos. 1 and 4, since they are related with respect to application of G. S. 1949, 44-508 (k), which reads:
“The words ‘arising out of and in the course of employment’ as used in this act shall not he construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” (Emphasis supplied.)
At the outset, the claimant concedes there was no'negligence on the part of the respondent with respect to the accident in' which he was injured, but he contends that the statute has no ápplication to the case at bar, and that the district court’s finding that because there was no negligence the claimant’s accident did not 'arise out of and in the course of employment, is erroneous as a matter of law. In making the contention, the claimant asserts that there is no substantial evidence upon which the district court could find that he had abandoned his trip to the doctor’s office and deviated therefrom so that at the time the accident occurred he was outside the scope of his employment and was returning “to assume the duties of his employment.”
When the claimant was directed to secure medical treatment and went to the company office to get a ticket for that purpose it was understood he would drive his pickup truck, but no directions were given as to the route he should take in going to and returning therefrom. On the contrary, the evidence permits no other reasonable inference than that the employment and the authorization given claimant permitted him to travel whatever route he might select that was reasonable and practical and would not materially delay his return; that he could use his discretion in that respect, including consideration of traffic, number of stop lights, condition of the road, and incidental advantages as to such routes. In Hilliker v. North American Van Lines, Inc., 207 N. Y. S. 2d 753, it was held that where the claimant was not directed to follow any prescribed route, he had the discretion to select “any
reasonable” route while his vehicle was moving in the direction of the ultimate destination of the trip. See, also, Armstrong v. Aero Mayflower Transit Co., 221 N. Y. S. 2d 225, and 99 C. J. S., Workmen’s Compensation, § 222, p. 747.
There is nothing to show that the claimant was not free to choose the most practical route to return to the work area. Since he received no directions as to what route to travel, he disobeyed none in selecting the route that the only and undisputed evidence disclosed to be not only the “normal route” but the “fastest route” from Topeka to the project. In Woods v. Jacob Dold Packing Co., 141 Kan. 363,41P. 2d 748, it was said:
“. . . Woods was privileged to choose his own route in going from Amarillo to Dalhart, and he was none the less about his master’s business when he was killed, although he had chosen to go to Dalhart by the longest route so as to call on his son and possibly stay over night with him. If Woods had no other motive for choosing the longest route, it was quite reasonable that he should have selected it in view of the fact that the shorter routes were undergoing repairs and improvements. . . .” (1. c. 364, 365.)
In Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P. 2d 841, it was contended that the employee had deviated from his trip and was not acting within the scope of his employment when killed. In denying the contention, it was said:
“. . . We think the evidence reasonably tends to show he was acting within the scope of his employment. The mere fact he chose to travel paved highways and on that route possibly pick up a greatly needed change of clothing at his home in Great Bend, although the chosen route necessitated driving somewhat farther, did not alone constitute an abandonment of his employment. (Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748.)” (1. c. 123.)
Likewise, in Bell v. Allison Drilling Co., 175 Kan. 441, 264 P. 2d 1069, it was contended the employee had deviated from his trip and that his injury did not arise out of and in the course of his employment. In the opinion it was said:
“. . . Bell’s normal route to his work where the well was to be drilled was not through Newton but took him west of there perhaps twenty miles. His employer Allison expected him to come to work on the next day with his crew. . . .” (1. c. 445.)
Moreover, the fact that claimant stopped at his son’s service station to have his truck greased and to eat his lunch during the regular lunch period is no indication that he turned aside from the business of his trip to engage in some purpose of his own and thus sever the relation essential to his protection under the Workmen’s
Compensation Act. He had the right, as incident to his employment, to eat his lunch during the lunch period wherever he might be on the trip (Pinkston v. Rice Motor Co., supra) and to have the truck greased while he was stopped for that purpose since he was using it daily for the benefit of the respondent.
The appellees urge that the claimant is barred from recovery, and they cite and rely heavily upon Repstine v. Hudson Oil Co., 155 Kan. 486,126 P. 2d 225; Brandon v. Lozier-Broderick & Gordon, 160 Kan. 506, 163 P. 2d 384; Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P. 2d 839; Pearson v. Electric Service Co., 166 Kan. 300, 201 P. 2d 643; Murray v. Ludowici-Celadon Co., 181 Kan. 556, 313 P. 2d 728, and Madison v. Key Work Clothes, 182 Kan. 186, 318 P. 2d 991, and cases cited. The decisions are not helpful to the appellees.
In Bell v. Allison Drilling Co., supra, the Repstine case and the Abbott case were cited and relied upon to deny compensation, and, speaking for the court, Mr. Chief Justice Harvey, said:
“. . . We have carefully read the statute and the decisions cited and conclude that the statute and opinions are not applicable to the facts found by the court here. . . .” (1. c. 445.)
In Blair v. Shaw, 171 Kan. 524, 233 P. 2d 731, three employees were killed in an automobile accident while returning home from another city where they had gone to take examinations for mechanics given by the Chevrolet Division of General Motors. It was held that the examinations and trip there involved were incidental and actually a part of their employment and was contemplated by the employment itself. The Repstine case, the Abbott case, and the Pearson case were cited and relied upon to deny compensation and they were held to be inapplicable as throwing “little light on the question.” As indicated in both the Bell and the Blair cases, the instant case is more nearly controlled by Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820; Stapleton v. State Highway Comm.., 147 Kan. 419, 76 P. 2d 843; Mitchell v. Mitchell Drilling Co., supra; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89, and Woods v. Jacob Dold Packing Co., supra, and the cases cited in the opinions of those cases. Likewise, Murray v. Ludowici-Celadon Co., supra, is not helpful. There it was held that the claimant was injured in a public alley and had left the duties of his employment for the day by checking out for the day and by leaving the premises of the employment.
As previously indicated, under the attending circumstances, securing medical treatment in Topeka was in the course of the claimant’s employment. There is nothing in our workmen’s compensation act which demands that the injured workman take the shortest and best route to and from the doctor’s office, but, as we have seen, the route selected must be reasonable and practical and one which will not materially delay his return to work. (Schneider’s Workmen’s Compensation Text, Cum. Supp. Ill, § 1680, p. 267.) It is too narrow a construction of the act to say that when the claimant passed Highway 75 and proceeded west on Tenth Street he was no longer engaged in the trip for medical attention. He drove west and south on the normal route of travel at all times and was on the “proper route for him to enter the project.”
In making the trip to the doctor’s office, the hazards and risks of highway travel were incidents of his employment. Moreover, the words “causal connection” certainly do not mean that the accident must result directly and immediately from the performance of work for which the workman was employed. Such a narrowed interpretation would mean that whenever a workman was not directly engaged in the actual work to be done he would be without protection of the Act. (Hilyard v. Lohmann-Johnson Drilling Co., supra, p. 182.)
All the evidence was that the claimant was on his normal route at the time of his injury and there was no evidence to support the district court’s findings which we have designated Nos. 1 and 4. That being the case, Sec. 44-508 (k) has no application, and the district court’s conclusion of law that claimant’s injury did not arise out of and in the course of his employment with respondent was erroneous.
The judgment is reversed with directions to reinstate the award of compensation as approved by the director of workmen’s compensation.
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Larson, J.:
In this appeal, we consider numerous rulings involving the administration of the estate of Donald E. Pritchard.
The administrator of the estate, Ronald Schulteis, and his attorney, Thomas Neff, appeal the district court’s decision affirming the magistrate judge’s ruling granting a money judgment and attorney fees against them to the surviving wife, Margaret Pritchard, based on the administrator’s and attorney’s failure in to provide notice to her of her right to claim property as her homestead before it was sold.
The numerous issues on appeal require that we set forth the proceedings and testimony in considerable detail.
FACTUAL AND PROCEDURAL BACKGROUND
Donald died intestate on September 17, 2001, survived by Margaret, his wife of almost 20 years and four adult children from a previous marriage. At the time of his death, Donald owned a house in McLouth, Kansas (“the McLouth property”) titled in his name only. Donald and Margaret had moved earlier that month from the McLouth property to a bed and breakfast owned by Margaret’s daughter in Meriden, Kansas. Five days prior to Donald’s death, he and Margaret had executed a listing agreement with a realtor for the sale of the McLouth property.
Ronald Schulteis, a licensed certified public accountant and the husband of one of Donald’s children, had assisted Donald during his fifetime and was requested by the heirs to file a petition for issuance of letters of administration. Both Schulteis’ petition and Margaret’s entry of appearance and waiver of notice of the hearing on the petition, filed 2 weeks after Donald’s death, identified Margaret’s address as the bed and breakfast. The district court appointed Schulteis administrator of Donald’s estate. Schulteis filed an inventory and valuation of Donald’s estate, which consisted of the McLouth property and tangible personal property located therein.
Subsequently, on October 25, 2001, Schulteis filed a petition for sale of the McLouth property. The petition specifically alleged the McLouth property was not a homestead and, further, that sale of the property was necessary in order to pay Donald’s debts and funeral and estate administration expenses. Margaret again entered an appearance and waived notice of the hearing on the petition for sale. The document indicated her “address and residence” was in Meriden, not McLouth. Finding the allegations of the petition to be true, the district court issued an order on October 26, 2001, for sale of the McLouth property at private sale. See K.S.A. 59-2401(a)(6) (permitting appeal of an order of sale within 30 days of entry of the order).
The McLouth property sold in March 2002, prompting Schulteis to petition the district court for confirmation of the sale on April 22, 2002. Schulteis sent Margaret a copy of the petition and notice of the scheduled hearing thereon which was set for May 14, 2002. The district court held a hearing on Schulteis’ petition, at which only Schulteis and his attorney, Neff, appeared. Finding that all interested parties received notice of the hearing, tire court issued an order on May 14, 2002, confirming the sale. Again, no appeal from this order was taken. See K.S.A. 59-2401(a)(6) (permitting appeal of an order confirming sale within 30 days of entry of the order).
Five months later on October 4, 2002, Margaret filed a petition, claiming spousal survivor benefits pursuant to K.S.A. 59-403, K.S.A. 59-505, and K.S.A. 59-6a207 and seeking an order prohibiting the payment of any funds from the estate. In her petition, Margaret challenged payments made by Schulteis from the estate and alleged she was entitled to one-half of the real property and one-half of the proceeds from the sale of the real property. Further, Margaret claimed neither Schulteis nor Neff had informed her of her statutory rights and, therefore, she had been unaware of her rights under Kansas law. Margaret’s petition referenced a proposed family settlement agreement and objected to the administrator’s and his attorney’s fees provided for therein. Margaret subsequently amended her petition to claim she was entitled to all of the real property and all of the proceeds therefrom. Neither the original nor amended petition sought a personal judgment against Schulteis and/or Neff.
Schulteis filed written defenses to Margaret’s amended petition, specifically denying her claim to the real property or its proceeds. Additionally, Schulteis claimed all the heirs to Donald’s estate agreed to disposition of the assets in accordance with a family set tlement agreement that provided for the sale of the real property, payment of Donald’s and Margaret’s debts, and distribution of the balance equally to the heirs. Finally, Schulteis claimed Margaret was not only aware of Schulteis’ payment of her and Donald’s debts but actually directed the payment of such in accordance with the family settlement agreement.
The parties tried the matter before a district magistrate judge. At dre conclusion of testimony, Margaret submitted a trial brief in which she claimed Schulteis converted funds from the estate and requested that the magistrate find Schulteis hable for double the value of his allegedly unauthorized distribution. See K.S.A. 59-1704 (prescribing liability for conversion). She made no mention of any claim for damages against Neff. Subsequently, Margaret submitted proposed findings of fact and conclusions of law, claiming Schulteis and Neff should be held jointly and severally hable in damages for the difference between the sale price of the McLouth property ($68,000) and the amount remaining in the estate ($37,551.80), as well as for her attorney fees due to their failure to inform her of her statutory homestead rights.
The magistrate found Donald and Margaret had determined prior to Donald’s death to sell the McLouth property and had signed a listing agreement for purposes of selling the house. The magistrate ruled that the property nonetheless qualified as a homestead for purposes of K.S.A. 59-401 and was, therefore, exempt from distribution. In doing so, the magistrate reasoned that Donald and Margaret occupied the homestead but were receiving health care assistance in Margaret’s daughter’s house at the time of Donald’s death. The magistrate ruled that Schulteis perpetrated a fraud against Margaret by failing to inform her of her statutory homestead rights and, further, that Neff failed to perform his duty as an officer of the court to advise Margaret of her rights, thereby reinforcing the fraud committed against her. Accordingly, the magistrate entered judgment against Schulteis and Neff, jointly and severally, for the amount of $68,000, less the funds remaining in the estate plus attorney fees of $3,400. The magistrate also revoked Schulteis’ authority as administrator and ordered that neither he nor Neff receive any fees for their services concerning the estate.
Schulteis and Neff appealed the magistrate’s decision to the district court. See K.S.A. 59-2408 (allowing appeal from magistrate’s decision to be taken to district court; district court determines issues de novo). Although three of Donald’s children also appealed the decision, they are not parties to the present appeal. Neff moved for an order in limine prohibiting Margaret from asserting any claims against him and from proffering any evidence of his alleged liability. Alternatively, Neff sought dismissal of all claims purportedly raised against him by Margaret. To the extent any such claims could not be dismissed outright, Neff requested the court enter summary judgment in his favor. The district court denied Neffs motion in its entirety.
During the bench trial before the district court judge, Schulteis testified he was not familiar with the Probate Code and although he was aware of the existence of spousal exemptions in estate tax law, he was not an expert in estate taxes. Schulteis conceded he never informed Margaret of such exemptions or that she might have a spousal interest in the McLouth property. Schulteis testified he did not recognize that Margaret had a spousal interest in the McLouth property at the time of Donald’s death because Donald was the sole owner of the property. Further, Schulteis testified he never directed Neff to investigate if spousal exemptions might apply to Margaret or to discuss such exemptions with Margaret. Conversely, Schulteis testified Neff never informed him of the need to investigate Margaret’s spousal exemptions.
Schulteis testified he lmew Donald and Margaret had moved out of the McLouth property and into her daughter’s bed and breakfast for medical purposes before Donald’s death. Schulteis testified furnishings remained in the McLouth property but that Margaret told family members they were moving from the McLouth property and selling the house. Schulteis testified that he understood Donald and Margaret’s move to the bed and breakfast to be permanent, with Donald having indicated that he intended to live at the bed and breakfast “until his final days.” Schulteis acknowledged that Margaret moved back to the McLouth property at some point after Donald’s death, but Schulteis did not know when this happened. Schulteis testified Margaret remained in the McLouth property until the new buyers took possession and that Margaret took the furnishings when she moved out.
Regarding the sale of the McLouth property, Schulteis testified a “for sale” sign remained in the yard from the time he obtained a court order to sell the property in October 2001 until the property sold the following March. Schulteis testified Margaret never mentioned any objection to the property being sold and, in fact, Margaret told him several times, both before and after Donald’s death, that she wanted the property sold. Schulteis indicated he first learned of Margaret’s objection to the sale upon receiving notification from her attorney in October 2002.
Schulteis testified that after the sale of the McLouth property, Margaret presented him with some bills she wanted paid. Schulteis said he paid bills at the express direction of Margaret and the rest of the family; some of these bills pertained to Margaret’s personal debts. Additionally, Schulteis testified the family agreed that after bills were paid, any remaining money in the estate would be divided into fifths and disbursed accordingly. Schulteis admitted the family settlement agreement was never signed. Schulteis testified Margaret received Donald’s pension and life insurance proceeds, both of which passed to her outside of the probate estate.
Neff testified he represented Schulteis in his capacity as administrator but did not represent the beneficiaries of the estate, including Margaret. Neff conceded he never informed Margaret of her spousal rights or any spousal exemptions that may apply and, in fact, did not meet Margaret in person until May 14, 2002. Neff testified their first encounter occurred in the hallway outside the courtroom before the hearing on Schulteis’ motion for confirmation of the sale of the McLouth property. Neff said he asked Margaret if she had any objection to the sale of the property, to which she said no. Neff testified Margaret then asked why a certain bill had not yet been paid. Neff contended this was the only conversation he ever had with Margaret.
Neff denied having an obligation to inform Margaret of her spousal rights, explaining that he represented only the administrator of the estate. Neff claimed a conflict of interest would have been created had he informed Margaret of those rights because he would have been advising one beneficiaiy to the detriment of the others. In addressing Schulteis’ obligations as administrator, Neff testified it was not the administrator’s duty to inform Margaret of her spousal rights due to the adverse interests of the beneficiaries, and, moreover, the beneficiaries had separately entered into an agreement, albeit an unsigned one, pertaining to the disposition of the estate.
Neff testified he sent notices and other pleadings to Margaret at the address of the bed and breakfast, not the McLouth property. Neff testified the waivers entered by Margaret never identified the McLouth property as her address and he had no knowledge of Margaret returning to the McLouth property following Donald’s death.
With regard to Margaret’s representation, Neff testified James F. Swoyer, Jr., entered an appearance on behalf of Margaret the day after the hearing on Schulteis’ petition for confirmation of the sale of the McLouth property. Neff testified that in the short time following the confirmation of the sale, Margaret’s counsel never indicated that Margaret objected to the sale or otherwise wished to assert a claim against the proceeds of the sale; rather, counsel sent Neff a letter authorizing the payment of various debts.
Donald’s son, James Douglas (Doug), testified Donald and Margaret’s move to the bed and breakfast was not simply related to Donald’s convalescence but had been planned since before Donald learned he had cancer. Doug testified Donald had indicated as early as May 2001 that he wanted to sell the McLouth property and pay off bills and that the move to the bed and breakfast was intended to be permanent. Further, Doug testified Margaret expressed her intention following Donald’s death not to return to the McLouth property but to live at the bed and breakfast permanently.
Margaret testified and explained that Donald wanted to sell the McLouth property upon learning he was sick and she went along with his wishes. Margaret acknowledged the property was listed for sale both prior to and after Donald’s death. With regard to the bed and breakfast, Margaret testified she and Donald were there for only a few days before he died and that she returned to living at the McLouth property the day after Donald’s death. Margaret said she never used the bed and breakfast as her mailing address.
Margaret testified no one informed her of her spousal rights following Donald’s death and, further, she expressed her desire to stay on the McLouth property on one occasion to two of the children but was told she could not stay. Although she acknowledged having signed an entiy of appearance and waiver of notice on the petition for sale of the McLouth property, Margaret denied understanding what the document meant. Margaret conceded she did not consider Neff to be her attorney but, rather, the attorney for Donald’s estate. Margaret testified she hired a lawyer, Swoyer, after talking with Neff at the courthouse, but she did not learn of her homestead rights until she met with her subsequent counsel, Thomas Rost.
Swoyer testified and confirmed he was Margaret’s counsel from May 15, 2002, until she retained Rost. Swoyer testified he could not recall whether he informed Margaret of her spousal rights pertaining to the McLouth property or of her right to appeal from the district court’s order confirming the sale of the property. He said Margaret had not expressed dissatisfaction with the sale but they had discussed bills that were being paid or should be paid.
The district court found no family settlement agreement controlled the administration of the estate and Margaret never knowingly and voluntarily relinquished her statutory homestead rights or spousal allowances. Further, the court found Margaret did not abandon such rights and allowances by listing the McLouth property for sale and temporarily residing elsewhere to accommodate Donald’s declining health, as she did return to the McLouth property following Donald’s death. With regard to the magistrate’s award of attorney fees, the district court first made the following findings:
“3. The Court further finds that regarding the claim for attorneys fees by Margaret Pritchard, there is no on-point authority for the allowance of attorney fees for litigation of spousal allowance and homestead rights. The Court further finds that said demand should be asserted against the estate itself and that any claim for reimbursement therefore should be undertaken against the prior administrator, Ronald Schulteis and/or his attorney, Thomas Neff, pursuant to an independ ent action on behalf of the estate against those parties individually by the special administrator of the estate.
“4. The Court further finds no abuse of discretion regarding tire assessment of fees by the Probate Court against the administrator and attorney and further finds that allowance was supported by substantial competent evidence.”
Finally, the district court relieved Schulteis of his duties as administrator and appointed a special administrator, David J. Farris, who is a party to this appeal.
Schulteis filed a motion to alter or amend judgment seeking clarification of the district court’s findings with respect to tire assessment of fees. The district court held a hearing on Schulteis’ motion on February 28, 2005. During the arguments, the district judge said, “Well, I think — I don’t [know] how they can take judgment against them [Schulteis and Neff] without a separate collateral proceeding. I think you’ve got to pursue that, Mr. Farris. That’s my position.” After this statement, Farris read from the magistrate’s ruling; a discussion followed, with the court questioning authority for die judgment. The judge ultimately held: “I’m going to find that the entire judgment is affirmed by this Court and entered as a judgment.” The request for further fees before the district court by attorney Rost was denied. The district court confirmed that he was adopting the findings of fact and memorandum of the magistrate in its entirety.
From all of these findings and rulings, Schulteis and Neff have timely appealed.
ISSUES TO BE RESOLVED
We have fully considered the issues raised and the arguments made by Schulteis and Neff. We have also fully considered all of the arguments made on behalf of Margaret and by Farris as the special administrator.
We will not, however, address these arguments in the order raised by either Schulteis or Neff, as we deem the following questions or issues to be controlling in resolving this appeal.
1. Did jurisdiction or factual or legal basis exist under which a personal money judgment could legally be granted against Neff?
ANSWER: No.
2. Did Schulteis or Neff have the duty to inform Margaret of her possible homestead rights in the McLouth real property and other statutory rights?
ANSWER: No.
3. Does the unappealed confirmation of sale of real property order malee the question of whether Margaret had homestead rights in the McLouth real property moot?
ANSWER: Yes.
4. Is Margaret estopped from contesting the payments made by Schulteis for her personal and other obligations that she asked him to pay?
ANSWER: Yes.
5. Did the district court err in assessing attorney fees for Margaret’s counsel against Schulteis and Neff?
ANSWER: Yes.
6. Does the failure of Schulteis and Neff to brief or raise as an issue on appeal the district court’s order removing Schulteis as administrator and denying Schulteis and Neff compensation for their services result in these issues being abandoned?
ANSWER: Yes.
In addition to addressing the above issues, we will also suggest what issues remain to be resolved based on the pleadings currently in the record.
ARGUMENTS AND AUTHORITIES
Did jurisdiction or factual or legal basis exist under which a personal money judgment could legally be granted against Neff?
The entiy of a judgment against Neff, a nonparty, raises the question of whether personal jurisdiction existed upon which a judgment could be granted against him. In Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1996), our court said:
“ “Whether the district court has jurisdiction is a question of law over which this court has unlimited review.’ [Citations omitted.]
“For a court to act upon a claim for relief, the court must have both subject matter and personal jurisdiction over the parties. State ex rel. Secretary of SRS v. Stephens, 13 Kan. App. 2d 715, 716, 782 P.2d 68 (1989).
“ ‘Subject matter jurisdiction is the power of the court to hear and decide a particular type of action.’ State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985). Subject matter jurisdiction is the power to decide and not the exercise of that power. Behee v. Beem, 156 Kan. 115, 117-18, 131 P.2d 675 (1942).
“Personal jurisdiction is defined as the ‘[pjower which a court has over the defendant’s person and which is required before a court can enter a personal or in personam judgment.’ Black’s Law Dictionary 854 (6th ed. 1990).”
To the extent that we are required to look to the provisions of the Kansas Probate Code, K.S.A. 59-101 et seq., the scope and range of permissible orders in probate proceedings involves issues of law over which an appellate court has unlimited review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
It is first clear factually that Neff was never named as a parly to this probate proceeding. No one ever attempted to join him as a party. It was only after the magistrate issued a personal judgment against Neff that any pleadings were filed on his behalf. In those pleadings he denied the right of the court to issue any judgment against him and at all times he has asserted nonparty status.
The claims that were asserted against Neff by Margaret essentially are that he committed legal malpractice and fraud by silence. These are clearly tort claims that could only have been asserted by a proceeding under chapter 60 of the Kansas Statutes Annotated.
Carrington further teaches us that “[jjurisdiction over a person can be acquired only by issuance and service of process in the method prescribed by statute or by voluntary appearance.” 22 Kan. App. 2d 815, Syl. ¶ 3. Neff was never served. He made no voluntary appearance and has resisted jurisdiction over his person at every material step of these proceedings.
It is crystal clear that the district court below did not have personal jurisdiction over Neff. While this alone is sufficient to require any judgment against Neff to be reversed, it is also clear that no subject matter jurisdiction existed in this case as well.
The provisions for the administration of estates of decedents are found in chapter 59 of the Kansas Statutes Annotated. K.S.A. 59-101 states: “This act is named and may be cited as the Kansas probate code.”
K.S.A. 59-103 identifies the authorized purposes of the Probate Code. K.S.A. 59-103(a)(3) states the courtis authorized “[t]o direct and control the official acts of executors and administrators . . .” but in the nine subsections of 103, there is no provision and no language giving any indication that a court acting in the administration of an estate has any authority or jurisdiction to enter a judgment for what is clearly a tort claim against an attorney for an executor or administrator.
It is thus clear that subject matter jurisdiction does not exist to support the judgment rendered against Neff.
The lack of either personal jurisdiction or subject matter jurisdiction is sufficient by itself to require reversal of the judgment against Neff and in our case, both are absent. The judgment against Neff is reversed.
There may be other defenses to such a judgment which have been argued by Neff but any discussion of them would be dicta and is not necessaiy to our holding.
Did Schulteis or Neff have the duty to inform Margaret of her possible homestead rights in the McLouth real property and other statutory rights?
Schulteis, in his brief, argues the district court erred in rendering a judgment against him on the theory of fraud by silence. He presents three arguments. First, he claims there is no duty, statutory or otherwise, requiring him as administrator to notify Margaret of her spousal rights. We will fully discuss this question as it is determinative of this issue.
However, we also note that Schulteis makes a jurisdiction argument that even if the duty to advise existed, that duty would require a tort action under chapter 60 of the Kansas Statutes Annotated and may not be litigated in a chapter 59 proceeding. Schulteis’ third argument is that the district court erred in limiting the issues and evidence at trial only to whether a family settlement existed and whether Margaret abandoned or otherwise waived her homestead rights but then rendered a tort judgment against him on Margaret’s claim for fraud by silence.
In contrast, Margaret maintains Schulteis had a fiduciary responsibility under the Probate Code to inform her of her statutory rights and the district court properly found Schulteis perpetrated a fraud by remaining silent when he had a duty to speak.
While Schulteis’ second and third arguments both have merit, this appeal must first be resolved by considering the question of whether a duty existed on Schulteis’ part which he violated by his failure to advise Margaret of all of her spousal rights.
The existence of a duty is a question of law upon which our review is unlimited. Colombel v. Milan, 24 Kan. App. 2d 728, 730, 952 P.2d 941 (1998). In resolving this issue, we will also consider numerous statutory provisions the interpretation of which are questions of law over which we have unlimited review. See Foster, 281 Kan. at 374.
Insofar as a claim of fraud by silence is made, Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 260, 978 P.2d 922 (1999), instructs us as follows:
“In all averments of fraud, the circumstances constituting fraud shall be stated with particularity. K.S.A. 60-209(b). To establish fraud by silence, the plaintiff must show by clear and convincing evidence the following elements: (1) that defendant had knowledge of material facts which plaintiff did not have and which plaintiff could not have discovered by the exercise of reasonable diligence; (2) that defendant was under an obligation to communicate the material facts to the plaintiff; (3) that defendant intentionally failed to communicate to plaintiff the material facts; (4) that plaintiff justifiably relied on defendant to communicate the material facts to plaintiff; and (5) that plaintiff sustained damages as a result of defendant’s failure to communicate the material facts to plaintiff. OMI Holdings, Inc. v. Howell, 260 Kan. 305, Syl. ¶ 6, 918 P.2d 1274 (1996).”
The magistrate’s decision which was ultimately adopted by the district court assumed Schulteis and Neff had a duty to inform Margaret of her homestead and other spousal rights. Then, both courts held the duty was violated and found Schulteis and Neff personally liable to Margaret for the difference between the sale price of the McLouth property and the remaining cash assets in the estate.
We first consider whether the duty assigned to Schulteis and Neff by the courts below legally exists. As will be demonstrated, while a statutory duty now exists based on the 2006 amendment to K.S.A. 59-2233 effective July 1, 2006, there was no duty on Schulteis’ part prior to that date to inform or give notice to Margaret of her homestead and/or spousal rights.
A review of Margaret’s amended petition shows she claims to be entitled to spousal benefits pursuant to K.S.A. 59-403, 59-505, and 59-6a207. K.S.A. 59-403 pertains to both testate and intestate estates and provides a surviving spouse an allowance of certain types of personal property as well as an allowance of not more than $35,000 in money or other real or personal property; this property is not hable for the payment of decedent’s debts or other demands against die estate.
K.S.A. 59-505 entitles a surviving spouse to
“one-half of all real estate of which the decedent at any time during the marriage was seized or possessed and to the disposition whereof the survivor shall not have consented in writing, or by a will, or by an election as provided by law to take under a will, except such real estate as has been sold on execution or judicial sale, or taken by other legal proceeding.”
The final provision relied upon by Margaret, K.S.A. 59-6a207, includes in the augmented estate a surviving spouse’s property (with the exception of the homestead, homestead allowance, family allowance, and social security payments) and nonprobate transfers to others.
Margaret’s amended petition did not claim that she was entitled to the homestead or a homestead allowance under K.S.A. 59-6a215, which reads:
“A surviving spouse is entitled to the homestead, or in lieu thereof the surviving spouse may elect to receive a homestead allowance of $35,000. The homestead or homestead allowance is exempt from and has priority over all demands against the estate. The homestead or homestead allowance is in addition to any share passing to the surviving spouse by way of elective share.”
Similarly, Margaret’s amended petition makes no claim for an elective share under K.S.A. 59-6a201 et seq., which is clearly applicable. Our Supreme Court, speaking through Justice Lockett in In re Estate of Antonopoulos, 268 Kan. 178, 180-84, 993 P.2d 637 (1999), set forth a 5-page analysis that justifies the holding in Syl. ¶ 3: “A surviving spouse’s elective share rights provided in K.S.A. 59-6a201 et seq. apply to testate and intestate estates.”
In analyzing the duty question, we look to the notification that is statutorily required. We agree with Schulteis’ argument that at the time in issue in this case there was no statutory provision in K.S.A. 59-401, 59-403, 59-6a207, or anywhere else in chapter 59 of the Kansas Statutes Annotated requiring administrators to advise a surviving spouse of her homestead rights or the right to surviving spouse allowances.
Changes occurred in the Probate Code when the elective share statutes, K.S.A. 59-6a201 et seq., were adopted effective January 1, 1995. See L. 1994, ch. 132, §§ 1-17. See Kansas Estate Administration, § 2.1-2.17, p. 2A1-2A8 (6th ed. rev. 1997). Section 20 of ch. 132, in 1994, confusingly amended K.S.A. 59-2233, but this problem was quickly remedied when L. 1996, ch. 53, sec. 7, further amended K.S.A. 59-2233 as follows:
"Except where the court has prviously determined the validity ang binding consent to a will, when a will is admitted to probateUpon the appointment and qualification of any administrator or executor, the filing of a petition for an order refusing to grant letters of administration or the filing of an affidavit pursuant to KS.A. S9-618a, and amendments thereto, the court shall forthwith transmit to-the surviving spouse a certified copy-thcrcof cause a copy of the will, if any, together with a notice statement to be mailed to the surviving spouse stating: ‘Under K.S.A. 59-6a201 through 59-6a217, and amendments thereto, you may have valuable rights-to take a share of conveyances a right to take a share of property owned by the decedent at death, in whole or in part, and of transfers of property made by by law, such consent shah controlrothcrwise'such spouse shall-bc deemed to have an-instrument in writing-to takeby the laws-of intestate-succession. If such spouse • Such notice shall be mailed within 10 days of the qualification of the administrator or executor, the filing of a petition for an order refusing to grant letters of administration or the filing of an affidavit pursuant to K.S.A. S9-618a, and amendments thereto. Proof shall be by affidavit filed with the court.”
This provision clearly states that it is the court’s obligation and not that of an administrator or executor to give the surviving spouse the required notification.
We know of no Kansas case on point that holds there is an obligation on an administrator prior to July 1, 2006, to advise a surviving spouse of his or her rights. Estate proceedings are clearly adversarial, and due process notice is required or may be waived. In this case, Margaret was advised by her daughter and stepson to seek legal counsel and had retained Mr. Swoyer at a time when the sale of the McLouth property could have been challenged and homestead rights claimed therein.
Interestingly, the 2006 Kansas Legislature further amended K.S.A. 59-2233 so that, effective July 1, 2006, it now reads:
“(a) Upon the appointment and qualification of any administrator or executor, the fifing of a petition for an order refusing to grant letters of administration or the fifing of an affidavit pursuant to K.S.A. 59-618a, and amendments thereto, the court administrator, executor, petitioner or affiant shall forthwith cause mail a copy of the will, if any, together with a notice statement to be mailed to the surviving spouse stating: ‘Under K.S.A. 59-6a201 through 59-6a217, and amendments thereto, you may have a right to take a share of property owned by the decedent at death, in whole or in part, and of transfers of property made by the decedent prior to death.’ Such notice shall be mailed within 10 days of the qualification of the administrator or executor, the fifing of a petition for an order refusing to grant letters of administration or the fifing of an affidavit pursuant to K.S.A. 59-618a, and amendments thereto. Proof shall be by affidavit filed with the court.
(b) The mailing requirement of subsection (a) may be waived if
(1) The surviving spouse is the petitioner or affiant; and
(2) a statement that the surviving spouse is aware that under KS.A. S9-6a201 through S9-6a217, and amendments thereto, the surviving spouse may have a right to take a share of property owned by the decedent at death, in whole or in part, and of transfers of property made by the decedent prior to death is:
(A) Included in the petition for letters of administration, the petition for probate of a will, the petition for an order refusing to grant letters of administration or the affidavit pursuant to KS.A. 59-618a, and amendments thereto; or
(B) included in an affidavit filed in the matter within 10 days after issuance of letters of administration, issuance of letters of testamentary, issuance of an order refusing to grant letters of administration or the filing of an affidavit pursuant to KS.A S9-618a, and amendments thereto.” K.S.A. 2006 Supp. 59-2233.
Our canon of statutory construction that “ ‘ “[w]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment,” ’ ” Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88-89, 106 P.3d 492 (2005), is applicable. See State v. Gordon, 275 Kan. 393, 405, 66 P.3d 903 (2003).
It is thus clear there was no statutory obligation or duty on Schulteis or Neff to give notice to Margaret of her statutory rights prior to July 1, 2006, and the district court’s holding is reversed.
The obligations, rights, and duties relating to the administration of estates are contained within the Probate Code, and there is no common-law obligation on administrators which Schulteis or Neff has been shown to have violated. An administrator’s ultimate obligation is to act in the best interests of the estate. See In re Estate of Stahl, 226 Kan. 48, 53, 596 P.2d 121 (1979). We know of no cited case that provides that an administrator or his attorney has any specific obligation to any one particular heir other than to act in the best interests of the estate.
Schulteis does make valid arguments than in the absence of a duty, chapter 60 jurisdiction does not exist here. Therefore, as we held with regard to Neff, there is no subject matter jurisdiction here as well. Any other arguments of Schulteis are cumulative and need not be reached or discussed.
For all of the reasons set forth above, the judgment granted in favor of Margaret and against Schulteis and Neff is reversed.
Does the unappealed confirmation of sale of real property order make the question of whether Margaret had homestead rights in the McLouth real property moot?
Schulteis argues there is no basis for a homestead rights argument by Margaret because the McLouth real property was sold and the sale confirmed without objection or appeal on her part.
Margaret and Farris contend Margaret was not barred from making an untimely election of homestead rights due to the fraud committed by Schulteis and Neff. For all of the reasons set forth in the previous issue, it is clear the elements of fraud by silence do not exist. Our case is totally different factually from In re Estate of Hessenflow, 21 Kan. App. 2d 761, 776, 909 P.2d 662 (1995), rev. denied 259 Kan. 928 (1996), upon which Margaret and Farris rely.
The finality of probate orders and appeals therefrom or the lack of appeals are questions of statutory interpretation which, as we have previously stated, are issues subject to our unlimited review. See Foster, 281 Kan. at 374.
The facts in this case clearly show that a sale of the McLouth real property was made and a “Report and Petition for Confirmation of Sale of Real Estate at Private Sale” was filed on April 22, 2002. The report and petition was set for hearing on May 14, 2002, at 1 p.m., and notice of the time and place of hearing was ordered to be given pursuant to K.S.A. 59-2208. An affidavit of mailing of the notice of hearing to all heirs is recorded on May 14, 2002, and the “Order Confirming Sale of Real Estate at Private Sale” was entered and recorded on May 14, 2002.
K.S.A. 59-2401, in applicable part, states:
“(a) An appeal may be taken within 30 days from the date of entry of any of the following orders, judgments, decrees, and decisions:
(6) An order authorizing, refusing to authorize, confirming or refusing to confirm the sale, lease or mortgage of real estate.
“(c) Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.”
K.S.A. 59-2401 and K.S.A. 60-2103a were considered and construed in In re Estate of Winslow, 21 Kan. App. 2d 691, Syl. ¶ 2, 906 P.2d 182 (1995), and it was held that “[a]n appeal pursuant to K.S.A. 59-2401 from an order entered by a district magistrate judge in a probate matter may be taken within 30 days.”
In construing the provisions of K.S.A. 59-2401, our Kansas courts have held that the time for appeals from judgment and orders in probate cases commences from the date the order is signed by the judge and filed with the clerk of the court. In re Estate of Burns, 227 Kan. 573, 574-75, 608 P.2d 942 (1980). In our case, the order confirming the sale of the McLouth real property was signed and filed on May 14, 2002. It is also our rule that if an appeal is not taken, the result is that the finding and decree of the court becomes final and binding on everyone. See Eaton v. Doe, 172 Kan. 643, 657, 243 P.2d 236 (1952).
There was no timely appeal filed from the order confirming the sale of the McLouth real property. Margaret would have been required to file an appeal within 30 days subsequent to May 14,2002, and she did not do so. Because of this the sale of the McLouth real property is final, and there was no available homestead upon which a claim of homestead rights could have been made at the time Margaret filed her petition to claim spousal survivor benefits on October 4, 2002. This makes the question of whether Margaret had homestead rights a moot issue.
As was stated in Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912 P.2d 716 (1996):
“The general rule is that an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.”
Further, Margaret had retained legal counsel who could have timely appealed from the order confirming the sale and claimed homestead rights. Margaret did not do so. The question of whether she had homestead rights can have no effect on the issues in this case.
In K.S.A. 59-2213, there is a provision relating to probate judgments which states: “The court shall have control of its orders, judgments, and decrees for 30 days after the date of rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by subsection (b) of K.S.A. 60-260 of the code of civil procedure.” At no point in the proceedings in this case has Margaret ever raised the issue of K.S.A. 60-260(b) or attempted to set aside or modify die order confirming the real estate sale which is clearly final.
With the sale being final, the existence or lack of existence of homestead rights is a moot question which we will not answer.
Is Margaret estopped from contesting the payments made by Schulteis for her personal and other obligations that she asked him to pay?
The application of the doctrine of equitable estoppel is a discretionary matter which we review on abuse of discretion standard. Shaffer v. City of Topeka, 30 Kan. App. 2d 1232, 1236, 57 P.3d 35 (2002).
As was said in Schraft v. Leis, 236 Kan. 28, 36, 686 P.2d 865 (1984), “[e]stoppel involves an assertion of rights inconsistent with past conduct, silence by those who ought to speak, or situations where it would be unconscionable to permit persons to maintain a position inconsistent with one in which they have already acquiesced. [Citation omitted.]”
Schulteis argued it was unreasonable for the district court to refuse to consider that Margaret requested that certain bills be paid, personally benefitted from the bills being paid, and then objected to their payment. We have previously set forth reasons why no judgment can be lawfully rendered against either Neff or Schulteis but we answer this issue solely to aid the court below in the closure of this estate.
The record reflects that Margaret requested and instructed Schulteis to pay the Providian credit bill, her personal car loan, the funeral bill for which she was personally obligated, an amount for a recliner, and an amount to Kathy Bouska. The accounting reflects these items were paid by Schulteis, and it is unconscionable to permit Margaret to now claim they should not have been paid when they were paid at Margaret’s request.
Schulteis did err in making such payments without a family settlement agreement being signed by all interested parties, but if any argument against his actions exist, they would inure to the other heirs and not Margaret.
There were other claims against the estate paid as part of the sale of the property, but as we have previously held that transaction is final and unappealed from and any arguments relating thereto have been extinguished.
In summaiy, we hold that Margaret is estopped from contending the administrator improperly paid indebtedness for which she was personally obligated or the payment of which she personally requested.
Did the district court err in assessing attorney fees for Margaret’s counsel against Schulteis and Neff?
For the reasons previously stated, judgments may not be granted against Neff or Schulteis. They further argue herein that the district court lacked authority to grant Margaret’s counsel attorney fees for his representation.
Whether the district court had authority to impose attorney fees is a question of law allowing this court unlimited review. Rensenhouse v. Bauer, 33 Kan. App. 2d 148, 150, 98 P.3d 668 (2004). A district court cannot grant attorney fees absent statutory authority or an agreement by the parties. 33 Kan. App. 2d at 150. Nor does a trial court have authority to impose attorney fees under its equitable powers absent statutory authority. United States Fidelity & Guaranty Co. v. Marsh, 21 Kan. App. 2d 885, 905-06, 908 P.2d 1329 (1995).
The district court in its September 21, 2004, memorandum decision found in response to Margaret’s claim for attorney fees that “there is no on-point authority for the allowance of attorney fees for litigation of spousal allowance and homestead rights.” The trial court further held:
“The Court further finds that said demand should be asserted against the estate itself and that any claim for reimbursement therefore should be undertaken against the prior administrator, Ronald Schulteis and/or his attorney, Thomas Neff, pursuant to an independent action on behalf of the estate against those parties individually by the special administrator of the estate.”
The trial court then confusingly and conflictingly went on to hold: “The Court finds no abuse of discretion regarding the assessment of fees by the Probate Court against the administrator and attorney and further finds that allowance was supported by substantial competent evidence.”
When later confronted by timely motions to alter and amend, the trial court considered its previous order and stated:
“The Court’s intention in paragraphs three (3) and four (4) of the Memorandum Decision [the language quoted above] was an affirmation of the Memorandum Decision of the Honorable Dennis L. Reiling, District Magistrate Judge, of August 1, 2003, entering Judgment for the surviving spouse, Margaret Pritchard, against the Administrator, Ronald Schulteis and his attorney Thomas G. Neff, in the amount of Sixty Eight Thousand Dollars ($68,000.00), joint and several, less the funds remaining in the estate, plus attorney fees of Three Thousand Four Hundred Dollars ($3,400.00), for Margaret Pritchard’s attorney, Thomas Odell Rost. Further that any and all expenses paid by the Administrator shall be treated as damages in favor of the surviving spouse, included in the $68,000.00 judgment, and not as an offset against the Judgment.”
In this case, it is clear there was no agreement between Schulteis, Neff, and Margaret or her counsel for payment of her attorney fees.
The only statutory references to attorney fees in the Probate Code are not applicable to our situation. K.S.A. 59-104(d) allows assessment of fees as additional court costs where an attorney is appointed by the court. K.S.A. 59-1504 allows attorney fees to an “heir at law or beneficiary under a will who . . . successfully prosecutes or defends any other action for the benefit of the ultimate recipients of the estate” but only where (1) the party is successful in his or her action, (2) the action ultimately benefits the recipients of the estate, and (3) the court exercises its discretion to allow fees. See In re Estate of Mildrexter, 25 Kan. App. 2d 834, 838, 971 P.2d 758 (1999). K.S.A. 59-1717 allows compensation to fiduciaries including his or her attorney fees which clearly does not apply to Margaret’s counsel. Finally, K.S.A. 59-2214 relates to taxation of “costs” by the court and “costs” relate to the expenses of administering tihe estate but ordinarily means the fees and charges for the court filing fees, fees for service of process, and the like. See In re Estate of Gardiner, 29 Kan. App. 2d 158, 161-62, 23 P.3d 902 (2001).
There is no statutory or contractual basis for allowing the $3,400 fee to Margaret’s attorney and such award is reversed.
Does the failure of Schulteis and Neff to brief or raise as an issue on appeal the district court’s order removing Schulteis as administrator and denying Schulteis and Naff compensation and expenses for their services result in these issues being abandoned?
Schulteis has not raised as issues in this appeal questions relating to his being removed as administrator. And, the denial of compensation and expenses to Neff and Schnlteis has not been raised or argued on appeal in the brief of either Neff or Schulteis. Under our long-time rule “[a]n issue not briefed by the appellant is deemed waived or abandoned.” McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005). Thus, such portions of the courts’ below rulings are affirmed.
What issues remain to be resolved on remand?
Based solely on the pleadings currently on file, this matter is returned to the district magistrate judge to determine Margaret’s rights under K.S.A. 59-403. Once such rights are determined, the special administrator should proceed as law requires to file a petition for final settlement to conclude administration of the estate.
Based on all the statements and holdings herein, Margaret’s motion for assessment of appellate costs and attorney fees on appeal pursuant to Supreme Court Rule 7.07 (2006 Kan. Ct. R. Annot. 57) is denied.
Affirmed in part, reversed in part, and remanded for further action in accordance with the opinion of this court. | [
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Pierron, J.:
John Beck appeals his conviction for operating a vehicle with no proof of liability insurance in violation of K.S.A. 40-3104, a Class B nonperson misdemeanor, and the fine of $300. Beck argues there was insufficient evidence to support his conviction. We affirm.
On August 21, 2005, Beck was stopped for driving 49 mph in a 35 mph speed zone in Norton, Kansas. Beck resides in Holdrege, Nebraska. He was driving a 1993 Jeep. Officer David Schoenberger testified that Beck had a Nebraska driver s license but he was unable to produce proof of motor vehicle liability insurance. Beck initially told Officer Schoenberger that he owned the Jeep. Officer Schoenberger ran a check on die vehicle tags and discovered the tags were registered to another vehicle and that the Jeep was owned by someone else.
Perhaps seeing the need for a tactical maneuver, Beck changed his story. Officer Schoenberger testified Beck then indicated the Jeep belonged to his business partner. His business partner had allegedly borrowed Beck’s Ford F-150 and Beck was driving the Jeep so he could return his son to Norton from Holdrege. Beck indicated his business partner had recently purchased the Jeep but had not yet received the title. Officer Schoenberger ticketed Beck for speeding and for failure to produce liability insurance. He testified that he did not issue a citation for improper registration be cause he believed Beck’s story that Beck was unaware of the Jeep’s improper registration. Officer Schoenberger told Beck to fix the improper registration in short order.
Beck did not challenge the speeding ticket, but he contested the charge of no proof of liability insurance under K.S.A. 40-3104. The district court magistrate judge found Beck guilty on both counts. Beck appealed his conviction to district court, and the court conducted a full trial on the matter. At trial, Beck introduced a copy of the insurance documents from Progressive Halcyon Insurance Company (Progressive Insurance) that provided insurance coverage on the two vehicles he owned, a 2000 Pontiac Grand Prix and a 1988 Ford F-150. Beck testified that on the day in question, he believed the Jeep was properly tagged and insured. Officer Schoenberger testified at trial that within the week before trial, he had rechecked the title on the Jeep and the title had not changed within the last 3 years. Further, the Jeep had never been titled in the name of Beck’s business partner.
Beck presented evidence of his insurance coverage. Beck’s Progressive Insurance policy provided coverage for any nonowned vehicle driven by the policy owner as long as the policy owner had permission, implied or express, from the actual owner of the vehicle. Beck testified he had never spoken with the person who owned the Jeep. Based on the insurance policy provisions, the trial court found Beck never had express or implied permission from the owner to operate the vehicle and his insurance policy did not apply. Consequently, the court found Beck guilty for failing to produce proof of liability insurance under K.S.A. 40-3104 and fined Beck $300.
Beck appeals.
Beck challenges the sufficiency of the evidence supporting his conviction.
“ ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, die appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005).
Beck argues K.S.A. 40-3104 sets out a specific intent requirement for nonowners of vehicles to be convicted of driving without liability insurance — a specific intent of knowingly driving an uninsured vehicle. K.S.A. 40-3104(c). Beck argues the undisputed evidence in this case was that he was driving a vehicle that he did not own, he had permission from his business partner to drive the vehicle, he had two properly insured vehicles, and he believed the vehicle he was driving was properly tagged and insured.
The relevant portions of K.S.A. 40-3104 provide that every owner shall provide motor vehicle liability insurance coverage for every motor vehicle they own and the statute sets forth the following violations regarding motor vehicle liability insurance:
“(b) An owner of an uninsured motor vehicle shall not permit the operation thereof upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.
“(c) No person shall knowingly drive an uninsured motor vehicle upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.
“(d) Any person operating a motor vehicle upon a highway or upon property open to use by the public shall display, upon demand, evidence of financial security to a law enforcement officer. The law enforcement officer shall issue a citation to any person who fails to display evidence of financial security upon such demand. The law enforcement officer shall attach a copy of the insurance verification form prescribed by the secretary of revenue to the copy of the citation forwarded to the court.”
The court in State v. Long, 274 Kan. 1095, 58 P.3d 706 (2002), addressed how the provisions of K.S.A. 40-3104(b), (c), and (d), provide three separate violations of the Kansas Automobile Injury Reparations Act. A defendant can be charged with any one of the three violations. Beck argues that he was charged under K.S.A. 40-3104(c), and thus had to “knowingly drive an uninsured motor vehicle.” Neither the facts nor the charging document charged Beck under K.S.A. 40-3104(c). The charging document/citation charged Beckwith “NO PROOF” and the statute cited was K.S.A. 40-3104. See K.S.A. 40-3104(d); Long, 274 Kan. at 1101 (“Neither the parties nor the court seemed to acknowledge that K.S.A. 40-3104[d], the subject of the questions reserved, provided for a separate offense of failing to display upon demand evidence of finan cial security.”). The facts in this case only support a charge under K.S.A. 40-3104(d) that Beck failed to provide proof of insurance upon request by Officer Schoenberger and that the officer issued “a citation to any person who fails to display evidence of financial security upon such demand.”
There is sufficient evidence to support Beck’s conviction pursuant to K.S.A. 40-3104(d). Beck failed to provide the officer with proof of insurance at the time of the stop. At trial, Beck failed to provide any evidence of insurance directly insuring the Jeep. The only possible insurance coverage for the Jeep was collaterally through Beck’s insurance policies on his two other vehicles. The trial court correctly found that Beck’s insurance policies through Progressive Insurance specifically excluded coverage when Beck was driving vehicles he did not own, unless he had express or implied permission of the “owner” to operate the vehicle. Beck presented no testimony or evidence from the “owner” of the Jeep to establish the permission requirements of the Progressive Insurance policies, and in fact Beck testified that he never talked with the owner or even knew the owner’s name.
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The opinion of the court was delivered by
Schroeder, J.:
This action arises out of the annexation of territory from the Labette County Community High School District (appellant) by the City of Parsons. The annexed territory at the time of its annexation was subject to its pro rata share of bonds in the sum of $1,400,000 authorized by an election of the residents of the district as it existed previous to the annexation ordinances passed by the City of Parsons. These bonds were issued and outstanding obligations of the Labette County Community High School District as it existed when the property was taken from this district by annexation.
This action is brought by the Community High School District against the Board of Education of the City of Parsons (appellee) seeking to recover the pro rata amount of the bonds and interest as they may become due, which were valid obligations upon the annexed property taken into the City of Parsons.
The action in this case is purely statutory (G. S. 1961 Supp., 72-5316e) and at the time this action was filed, and at all times material herein, no provision was made for appeal to the Supreme Court. (Common School Dis’t No. 86 v. Olathe City School Dis’t No. 16, 186 Kan. 512, 351 P. 2d 193, and authorities cited therein.) This was recognized in the former appeal in this case (Community High School v. Board of Education, 188 Kan. 300, 362 P. 2d 58), where resort may be made to the facts alleged in the petition.
The appellee challenges the appellant’s right of appeal to the Supreme Court. The appellant, on the other hand, is not unmindful of the previous decisions of this court in regard to the right of appeal, but attempts to circumvent the statute by asking this court to again exercise its power of mandamus, as it did in the former appeal of this case. There the appeal was from an order of the trial court sustaining a demurrer to the petition, which in effect entirely ignored the statute. This court was so shocked that the proceeding in the former appeal was treated as one in mandamus.
It is the contention of the appellant that the subsequent happenings in this case — the refusal and failure of the trial court to give the commissioners who were laymen written instructions, and the approval of the majority report of the commissioners without amending the conclusions of law contained therein, thus ignoring its requests — show “a complete lack of consideration of the intent of the statute, and such an arbitrary and unwarranted conclusion of the two commissioners” that the Supreme Court is justified in using its extraordinary powers and treating the appeal as an action in mandamus.
This point is not well taken.
In the former appeal the trial court was ordered to appoint commissioners and proceed pursuant to the applicable statute. When the case went back, commissioners were appointed, their report was filed and approved and judgment rendered. Under these circumstances, the situation here presented is entirely different than it was in the former appeal, and the decision is final.
G. S. 1961 Supp., 72-5316e, reads in part as follows:
“. . . The report and determination of tire commissioners, if approved by the court or if corrected and approved by the court, shall be final. . . (Emphasis added.)
In the 1963 session of the legislature 72-5316e, supra, was amended (House Bill No. 379) to authorize appeal in actions of this type to the Supreme Court.
The appellant also urges that in a procedural matter of this type we should recognize the amendment and give it retroactive application to authorize the appeal in the instant case.
It is a general rule that a statute will only be given retroactive effect when such intention is clearly expressed. (First Nat’l Bank v. Gray, 151 Kan. 558, 99 P. 2d 771; Bulger v. West, 155 Kan. 426, 125 P. 2d 404; and Eaton v. Doe, 172 Kan. 643, 654, 243 P. 2d 236.)
In the case at bar House Bill No. 379 makes no mention what soever that it applies to pending appeals, or that it has a retroactive effect, and it would be improper for this court to so construe the act.
In conclusion we refrain from expressing any opinion concerning the decision of the trial court on the merits of the action, but are constrained to hold that the appeal must be and hereby is dismissed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an order of the trial court overruling plaintiff’s motion to revise and vacate a judgment in a divorce action wherein plaintiff, Goldie Ward, sued Leonard Ward for divorce, which was granted by default decree.
The parties had entered into a property settlement agreement on March 21, 1962. The agreement, highly summarized, disclosed the parties owned certain property, including real estate in Barton county, Kansas, which had a fair and reasonable value of $108,000, and each of the parties was entitled to one half of such value; Leonard was to receive all of the real estate and Goldie was to give him a quitclaim deed thereto; at the time of the granting of the divorce Leonard was to pay Goldie $14,000, leaving a balance of $40,000 of which $4,000 was to be paid to her on April 1, 1963, and a like sum was to be paid on the first day of April of each successive year thereafter until ten payments, including interest, had been made; payment of interest on the unpaid balance was provided for, but we are not presently concerned therewith; the obligation constituted a lien upon the real property but gave leave to Leonard, without consent of Goldie, to encumber it to the extent of $20,000 and give a first mortgage as security therefor, which would be superior to Goldie’s lien; Leonard was to pay Goldie $1,000 alimony; the family car and two motor boats were to be the property of Leonard upon his payment of $1,000 to Goldie and likewise, approximately eighteen guns and a pickup truck were to be the property of Leonard upon his payment to her of $227.00; United States Savings Bonds totaling $21,924.46 were divided equally; insurance policies were to be turned over to the children who were named beneficiaries therein, and policies existing upon either Goldie or Leonard were to be retained by each party as his or her sole ownership; a $5,000 loan to a daughter and son-in-law was to be paid one half to each of the parties, and Leonard and Goldie were to notify the daughter and son-in-law thereof. Other property of no consequence to this action was also divided.
On March 22, 1962, the trial court granted Goldie a divorce, approved and adopted the property settlement, and allowed her judgment of $2,500 for attorney fees.
It should be noted that on the following day, March 23, 1962, in an instrument denominated “Ratification and Consent,” Goldie agreed that payments to be made under the property settlement and judgment of the court could be made by depositing them to her account in the American State Bank of Great Bend, Kansas. The same words used in the above title were also used in the body thereof, and the parties operated under the terms of this ratification.
In another instrument denominated “Receipt,” dated March 24, 1962, Goldie acknowledged transfer to her of all the bonds owned by the parties with the provision that Leonard’s half would be applied upon his obligation to her. She also acknowledged receipt of a check in the amount of $6,990.52, payment of $2,500 attorney fees, and delivery of other property included in the agreement.
On or about May 29,1962, Goldie, through subsequently employed counsel, filed a motion to revise and vacate the foregoing judgment based principally on two grounds: First, accident and surprise, which did not give her a reasonable opportunity to present her evidence in the original divorce proceeding and be heard on the merits of the case; and second, the agreement was executed by plaintiff under duress, coercion, undue influence of the defendant and was inequitable, inadequate, unfair, improvident, ill-founded, and against public policy. Much evidence was introduced in support of the motion and the trial court stated it was of the opinion the matter should be disposed of before the end of the term of court in which the default decree of divorce had been entered. After introduction of evidence and argument of counsel, the court granted an immediate hearing so Goldie would not be cut off by a ruling made after the expiration of the term.
The first ground of the motion was shown to be without merit and we need not discuss it herein.
Goldie introduced as evidence the testimony of Richard Hanson, a professional appraiser, who showed he was qualified both by education and experience. He testified the replacement approach showed the valuation of the real property involved to be $161,000, the market approach valuation was $190,000, and if the property were valued on an income basis, it would be $195,000.
Speaking informally, and to explain its judgment, the trial court stated the record showed that at the time of the execution of the property settlement undisputed circumstances were in existence. A prefabricated motel immediately across the street from the Ward Motel owned by the parties had failed in business and was being sold at public auction, and about a block from the Ward Motel a new ultra-modern 100 unit motel was about to be constructed. The court stated that both parties in the original divorce proceeding were represented by able and experienced counsel and Goldie’s counsel had drawn the property settlement. Many consultations had taken place between Goldie and her counsel and then, as instructed, her counsel had met with Leonard and his counsel. At the time of the agreement an appraisal had been made by a Mr. Johnson showing the value of the real estate to be $129,000, but in view of the surrounding facts and circumstances and a desire on the part of Goldie to terminate the marriage relationship, the agreement stipulated that $108,000 was the fair and reasonable value, and each of the parties should be entitled to the equivalent of fifty per cent thereof.
The trial court remembered the interrogation it had made of Goldie in the original divorce proceeding with respect to the agreement, and the court stated that Goldie,
“. . . wanted this man tied down so that he couldn’t back down, that she didn’t want him making other commitments that would come in ahead of this.”
The court also recalled Goldie’s competency at the time of the divorce proceeding and thought she understood and was familiar with the basis of the property settlement. It did not think she was “wanting” in her mental capabilities. The court frankly stated it did not believe the testimony of the professional appraiser, Richard Hanson, above set out, and found that $108,000 was a reasonable figure since it was based on Mr. Johnson s appraisal of $129,000 and the testimony of Goldie’s counsel in regard to existing undisputed circumstances.
Goldie complained of the amount of alimony but the court found she had considered that matter before she signed the agreement and while it was not a consequential amount, she had apparently taken into consideration the fact this was not to be a contested case and she had not filed a bill of particulars with the court, as requested by defendant, as well as the further fact that in view of the property settlement, a division of the property would not be made by the court. Goldie had the independent advice of her daughter, and of her own attorney, and the court had complete confidence in her attorney in all legal matters including divorce matters. It believed the testimony of her counsel.
The Rial court made a specific finding in favor of defendant on all matters not already determined. It directed that the costs of the hearing on the motion were to be withheld from the next payment made to Goldie by the clerk of the court if she had not previously paid such costs. This appeal followed.
Goldie relies on Crosby v. Crosby, 188 Kan. 274, 362 P. 2d 3, but examination thereof clearly indicates that case could have no applicatton here. It would be impossible even to draw a reasonable comparison between the two cases — not to mention attempting to show the Crosby case is decisive of anything we presently have before us.
Other contentions are raised by Goldie but the record simply does not support them. One primary reason for this is that the authorities she cites are those where the husband took over the property settlement and he and his attorney, individually or collecttvely, drew the agreement. By conttast, in our case Goldie’s counsel drew the agreement and he was well acquainted with the terms thereof as well as with the condittons and circumstances surrounding it. Likewise the trial judge, by interrogation of Goldie before granting her a default divorce, had assured himself the Ransactions surrounding the agreement were equitable, just, and proper.
We conclude Goldie has failed in her duty to show the trial court erred in a manner prejudicially affecting her substantial rights in its judgment approving and adopting the property settlement or when it refused to revise and vacate such judgment. One of our many applicable cases is Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102, where it was stated:
“The rule in this jurisdiction has always been that a division of property made by the trial court in a divorce action will not be disturbed on appellate review unless it is clearly made to appear the trial court’s action in making that division amounted to an abuse of discretion.” (p. 253.)
See, also, Reedy v. Reedy, 175 Kan. 438, 440, 264 P. 2d 913; Bunch v. Bunch, 185 Kan. 543,545,345 P. 2d 624.
Goldie has also failed to show by the record before us that the trial court in any way abused its discretion which point is also controlled by the above authorities. We are of the opinion the trial court, in both the original divorce proceeding and in the hearing on the motion, was painstakingly careful in its efforts to assure Goldie a just and equitable property settlement under the existing circumstances. We believe the judgment rendered is just and equitable and it will not be disturbed.
Judgment affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of the levy of an inheritance tax in the estate of Ñola H. Rarton, deceased.
Because of our disposition of the appeal, only a brief recital of the background of the matter is required.
On May 18, 1956, Ñola H. Barton entered into a written contract with Dale Wells and Marguerite Wells whereby she sold to the Wells ninety shares of bank stock. By the terms of the contract the Wells were to pay her the sum of $160 per month during her lifetime. She was seventy-four years of age at the time. The stock was to be held in escrow by a Kansas City, Missouri, bank. Mrs. Barton died thirty-nine months later. During that period the Wells had made each monthly payment as per the contract, and, following her death, the stock, in accordance with the provisions of the contract, was turned over to them.
Mrs. Barton died testate. Her will made no mention of the bank stock or of the contract previously executed by her for its sale to the Wells. In the settlement of her estate the inheritance tax division of the state department of revenue determined that the transfer of the shares of stock under the mentioned contract was intended to take effect in possession after the death of Mrs. Barton, and, pursuant to the provisions of G. S. 1959 Supp. 79-1501, and G. S. 1949, 79-1504, assessed an inheritance tax against the Wells on the transaction in question.
Upon an appeal by the executors of Mrs. Bartons estate the board of tax appeals sustained that finding and order. The executors then appealed to the district court.
The district court, after a full hearing, reversed the decision of the board of tax appeals and in so doing made findings of fact and conclusions of law. The journal entry of judgment recites that on March 15,1962—
“Thebefobe, judgment is hereby rendered against the Director of Revenue, appellee herein. Director is adjudged to pay the costs.”
The journal entry of judgment further recites that on May 16, 1962, the motion for new trial filed by the director of revenue came on for hearing and—
“The court having considered said Motion for new trial and being fully advised in the premises finds that same should be overruled.
“Thebefobe, It Is by the Court Considered and Ordered, that Motion for new trial filed by the Director of Revenue, appellee herein, be and the same is hereby overruled.”
From the foregoing it will be seen that the court rendered judgment on March 15, 1962, and that on May 16, 1962, it overruled the motion for a new trial.
On July 12, 1962, the director of revenue filed a notice of appeal to this court stating that he
“. . . does and has appealed from the judgment, order and decision rendered and made in the above entitled action on the 16th day of May, 1962, where it was by the Court considered, ordered, adjudged, and decreed that the Order of the Board of Tax Appeals sustaining the assessment of inheritance tax against the appellant, J. D. Pace and Dale Wells, also known as Dale R. Wells, executors of the estate of Ñola H. Barton, deceased, and Dale R. Wells, also known as Dale Wells and Marguerite Wells, as individuals, in the amount of $1,046.34, should be reversed and that judgment in said amount plus cost entered against the Director of Revenue.”
The executors and the Wells filed a motion to dismiss the appeal. The motion was denied with leave to renew at the hearing of the appeal on its merits. The motion to dismiss has been renewed.
Upon consideration of the record — pertinent portions of which are set out above — we are of the opinion that this appeal must be dismissed.
The judgment in this case was rendered on March 15, 1962. The only order made on May 16, 1962, was the order overruling the motion for a new trial. Notice of appeal was not filed until July 12, 1962. While the notice of appeal mentions the date “16th day of May, 1962,” above, it nevertheless limits the appeal to the judgment which reversed the order of the board of tax appeals. The notice of appeal does not mention the order overruling the motion for a new trial and no appeal was taken from that order. In other words, the appeal — notice of which was not filed until July 12, 1962 — is from only the judgment which was rendered on March 15, 1962. G. S. 1949, 60-3309, provides that an appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken. The notice of appeal here was filed long after the expiration of two months from the date of the judgment in question — and therefore was out of time. Citation of authority — other than the statute— is unnecessary.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the judgment of the trial court and from orders refusing to appoint a trustee in decedent’s estate, allowing a partial executrix fee, and overruling a motion for new trial.
Decedent died on March 2, 1956. His last will and testament, executed on September 26, 1952, included the following provisions:
A city property was devised to his widow, Ruth, for life, and then his three children; Julia Dorothy Taylor, Alice C. Hadwiger, and John F. Eckel, in fee simple as tenants in common. All personal property was given to his wife and in addition, the will provided:
“Fourth: I give and bequeath to my wife $1,809-00 per annum, to be paid to her each year in equal monthly installments, for her sole use and benefit during her natural fife; said bequest and payments to be in lieu of the rights of homestead and widow’s allowance, as is provided by the statutes of the State of Kansas, and to be paid by my executrix, or her successor, out of the residue of my estate.” (Our emphasis.)
At his wife’s death he bequeathed all of his estate to the above-named children, share and share alike. He appointed Julia Dorothy Taylor his sole executrix to serve without bond.
On October 26, 1957, Alice, one of decedent’s daughters, filed a petition in the probate court wherein she alleged that a trust was created by the above-quoted paragraph four of decedents will to be carried out by the executrix, or her successor, who Alice claimed should be a trustee since the decedent specifically failed to name a person as trustee to succeed the executrix. We pause to mention here that later in the petition Alice stated that on April 3, 1956, Julia Taylor qualified as executrix without bond, that all claims had been barred and all debts had been paid except the costs of administration, and nothing remained for Julia to do as executrix.
In her petition Alice further alleged that Julia Taylor was the wife of James L. Taylor, who at the time of decedent’s death was a partner of decedent in the Douglass Grain Company under a written partnership agreement dated August 4,1948, for the purpose of conducting a grain elevator business; that James had been operating the partnership as a surviving partner under bond since April 3, 1956, and continued so to operate; that for more than one year after decedent’s death James had not collected the partnership assets, had not placed the proceeds therefrom as they were collected in a separate account, had refused to disclose to and had concealed from the heirs such collected assets and had not properly compelled debtors to pay obligations owing the partnership until some had been barred by the statutes of limitation, and he had been and was failing to perform his duties; that some of the claims owing to the partnership were owed by businesses James had conducted, or in which he had an interest, which constituted speculations out of the assets of the Douglass Grain Company to the detriment of the trust and the heirs of decedent.
In her answer Julia alleged and stated that decedent’s interest in the Douglass Grain Company had been sold to James, as a surviving partner, and that the allegations of the petition raised no issue on the appointment of a trustee in decedent’s estate; that all interested parties had entered into the contract, and the sale of the assets of the Douglass Grain Company was advantageous to the estate and to all parties concerned; that she had complied with the orders of the court and the provisions of law governing administration of estates; she stated she had paid to Ruth, decedent’s widow all sums provided for in paragraph four of the will; that no provision was made for the appointment of a trustee and no necessity existed for such an appointment. The answer contained a general denial to the allegations of the petition.
Julia further stated throughout the process of the sale of decedent’s partnership interest in the Douglass Grain Company to her husband, James L. Taylor, that Robert L. Hadwiger, the present attorney for Alice, acted as attorney for decedent’s estate as well as for Julia, and Julia was advised by him and relied thereupon in all matters pertaining to such sale.
Alice thereafter filed a reply, but the only portion we think is germane to this appeal was a general denial. The probate court entered judgment and denied the petition for appointment of a trustee. Alice thereafter appealed to the district court where a trial was had. The record of testimony before us covers transac tions which took place principally during the time when present counsel for Alice was representing decedent’s estate and Julia, as executrix, but such evidence is of little or no benefit to this court on appellate review. At the conclusion of the trial, the court entered its judgment wherein it denied the appointment of a trustee, found generally in favor of decedent’s estate and Julia, as executrix, and also found generally for allowance to Julia of a partial fee as executrix and set the amount in the sum of $3,000. A motion for new trial filed by Alice was overruled.
Another appeal concerning the partnership in the Douglass Grain Company was determined by this court in In re Estate of Eckel, 191 Kan. 11, 379 P. 2d 346, but we need not narrate herein the merits of that appeal.
Alice, appellant here, has the burden of showing her substantial rights have been prejudicially affected by the judgment of the court below so far .as her rights as an heir of decedent are concerned. No objection is to be found in the pleadings, the evidence, the findings of the trial court, or anywhere else in the record, that Ruth, decedent’s widow, is complaining in regard to the $1,800 annual payment to her. This is not an action to remove an executrix or an administrator but merely to appoint a trustee. The record clearly discloses the administration of the estate had continued in a harmonious fashion for more than a year after decedent’s death and no question was raised until after decedent’s interest in the assets of the partnership enterprise was sold. The sale agreement was entered into and executed by decedent’s two daughters, Julia and Alice. It is admitted an actual trust was not created by paragraph four of decedent’s will and that the only basis for Alice’s contention such a trust was created is the use of the word “successor.” We do not put such a strict construction on the word “successor” for the reason that an executor is sometimes succeeded by an administrator. The trial court held generally in favor of Julia and since in our opinion the record more than amply supports that finding, we are compelled to affirm the trial court’s judgment on that point.
In regard to the allowance of the partial fee to the executrix, the trial court heard the evidence, saw the witnesses, and again found generally in favor of Julia. It appears to us that Alice has totally faffed to show any abuse of discretion on the part of the trial court nor has any other reason for reversal of that court been shown on this feature of the case. (2 West’s Kansas Digest, Appeal & Error, 1962 Cum. P. P. § 989, pp. 62-64; 1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, 1962 Cum. Supp., § 507, pp. 51, 52.)
Judgment affirmed.
Schroeder, J., concurs in the result. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for a mandatory injunction filed by W. Edgar Moore, plaintiff (appellant), a landowner, against the State Highway Commission seeking to enjoin the commission from prohibiting him direct access to federal Interstate Highway 35 (previously relocated US-50) until such time as access rights of the landowner were acquired by the commission. The plaintiff landowner will hereinafter be referred to as plaintiff, and the defendant State Highway Commission as commission. The pertinent facts leading up to the present action follow.
Prior to 1949 the highway in question was designated as a controlled access highway to be built on a new location under joint agreement between the Federal Bureau of Public Roads and the Kansas State Highway Commission. In 1949 the commission, in a condemnation proceeding, took 9.1 acres off the west side of plaintiff’s land, upon which no highway previously existed, for the relocation and construction of U. S. Highway 50, now Interstate Highway 35, as a controlled access highway, and all access to the new highway was restricted. Such land was taken in the condemnation proceedings to construct a four-lane, super highway with additional service road. No separation of the plaintiff’s property was effected by the taking, nor were any existing entrances to or exits from his property or any routes on and over existing township or county roads impaired.
The original condemnation petition stated the landowner could have direct access to the mainly traveled portion of the highway with the reservation the landowner would be required to use the outer highway service road when the same was installed by the commission. The petition further provided no additional entrances or access facilities from property of abutting property owners to the mainly traveled portion of such interstate highway could be constructed without written permission of the commission, and that the commission reserved the right to require all abutting owners to use the outer access highway or service road as a means of reaching the mainly traveled portion of the interstate highway at points to be designated by the commission.
Appraisers were appointed in the condemnation proceedings, and as provided by law, notice was given to the landowners that the land condemned was for the purpose of constructing an inter state highway as a controlled access highway. Award was made to plaintiff by the appraisers, from which award plaintiff appealed to the district court where the case was tried and judgment entered on the verdict for the plaintiff from which no appeal was taken. The commission paid the amount of the judgment into court and the plaintiff received the amount paid on the judgment for his damages sustained.
In December 1957 this action was filed by the plaintiff against the commission for a mandatory injunction as hereinabove related. This present action reached this court on issues regarding the pleadings in Moore v. State Highway Commission, 188 Kan. 388, 362 P. 2d 646, which gives a portion of the history of this action. Issues were subsequently joined and the case proceeded to trial to the court. The petition for a mandatory injunction involved herein is based on the theory the plaintiff landowner had a common law right of direct access to the newly constructed highway where no highway previously existed at a point where plaintiff’s land abutted the highway.
Shortly after the original condemnation in 1949 the commission constructed a two-lane, one-ribbon, concrete highway which became new US-50, now Interstate Highway 35. This ribbon was completed in 1952 and officially opened in April 1953. No service road had yet been constructed. Following the construction of this ribbon, plaintiff occasionally ran his tractor and combine on and off the highway from his property and occasionally drove his automobile directly onto the highway, but for the most part he used the previously existing original access to the outer highways which was not impaired by the construction of the new road. In 1957 the commission began construction of the second ribbon alongside and immediately west of the existing ribbon, and in May 1957, after a frontage road was constructed on the land already acquired by the commission in the condemnation proceedings, direct access was cut off and plaintiff was relegated to the use of the service road in obtaining access to the newly constructed Interstate 35.
The court, after reviewing the pleadings and evidence, concluded as a matter of law that there was only one taking of land and it included enough land for the highway and service road eventually constructed; that the commission, under the provisions of G. S. 1949, ch. 68, art. 4, had the power and authority to condemn land and build a new highway where no highway previously existed, and to limit, control or prohibit access thereto; that no abutter’s rights attached under such circumstances; and that no taking of access was necessary by condemnation. The trial court denied plaintiff’s request for a mandatory injunction and entered judgment in favor of the commission for costs. From this order and judgment plaintiff appeals.
It is conceded the plaintiff had no right of access to the new highway prior to its construction because no highway, conventional or otherwise, previously existed. G. S. 1949, ch. 68, art. 4, gave the highway commission broad authority to condemn land, construct highways and to cooperate with the federal-aid program in building highways. Therefore, the highway commission did have authority to construct a controlled access highway where no highway previously existed.
The over-all determinative question presented on this appeal was laid to rest in Riddle v. State Highway Commission, 184 Kan. 603, 339 P. 2d 301. In that case a new nonaccess highway was constructed through Riddle’s farm where no highway previously existed and where the conventional highway used by Riddle was not destroyed. It is conceded by all that since statehood this court has consistently held that an abutting property owner has special private rights in existing highways, the most important of which is the right of access to and from the highway, which may not be taken from him by the public without just compensation. (Riddle v. State Highway Commission, supra.) However, such right is subject to reasonable regulation of the commission with respect to egress and ingress. (Simmons v. State Highway Commission, 178 Kan. 26, 283 P. 2d 392; Riddle v. State Highway Commission, supra.) We stated in the Riddle case at page 610 that where a new controlled access highway is established by the commission through property where no highway previously existed, there is no taking of a right of access since such right of access never in fact existed. See Schnider v. State of California, 38 C 2d 439, 241 P. 2d 1, 43 A. L. R. 2d 1068; State ex rel. State Highway Comm. v. Clevenger, 365 Mo. 970, 291 S. W. 2d 57; State Highway Com. v. Burk et al., 200 Or. 211, 265 P. 2d 783; Carazalla v. State, 269 Wis. 593, 608a, 70 N. W. 2d 208; State v. Calkins, 50 Wn. 2d 716, 719, 314 P. 2d 449. See, also, articles entitled: The Limited Access Highway, 27 Wash. L. Rev. 111; 13 Mo. L. Rev. 29; Freeways, 3 Stanford L. Rev. 298; Institute on Eminent Domain, Southwestern Legal Foundation, Dallas, Texas (1962) p. 46.
Again in the Riddle case we stated:
“The legislature has plenary power over highways and it is well settled that their use may be limited, controlled and regulated in the exercise of the police power whenever necessary to promote the safety and general welfare of the people (citing cases). Thus, the regulation of traffic under the police power includes such things as prohibiting left turns, prescribing one-way traffic, prohibiting access or crossovers between separated traffic lanes, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain highways (case cited).” (p. 611.)
The commission exercised the police power under the statute (G. S. 1949, ch. 68, art. 4) when it determined the highway in question should be relocated and established as a controlled access facility, limiting abutters access thereto, and notice of such fact was set forth in detail in the petition for condemnation for the information of the landowners and the appraisers in assessing the damages to the property.
Further on page 611 in the Riddle case we stated:
“The authorities universally hold there are two methods by which an abutter’s right of access may be curtailed or prohibited- — the police power and the power of eminent domain (citing cases). Under the power of eminent domain the sovereign may take or damage private property for a public purpose upon payment of just compensation (citing cases). On the other hand, the police power is the power which the state inherently has to restrict the use of property without paying compensation by valid regulations intending to promote public health, safety, morals and general welfare (citing cases).”
It seems well settled that where a new highway is established by the commission as a controlled access facility through land where no highway previously existed, and the right of access is restricted by exercise of the police power, the abutting landowner is not entitled to compensation for the restriction of that right nor is he entitled to enjoin the commission from restricting his access thereto. In the instant case the plaintiff had been deprived of nothing which he ever enjoyed or to which he had a title or right except the 9.1 acres of farm land, and for that he was properly compensated in the original condemnation action. Plaintiff now and at all times has the same right of egress and ingress to his property as he had prior to the condemnation proceedings, and, in addition thereto, he has been given limited access to a super highway. It follows that the judgment of the trial court denying plaintiffs application for a mandatory injunction is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action based upon a claim against an estate wherein it is alleged the decedent prior to his death orally agreed to will a section of real property to his two grandsons (third party beneficiary claimants) as part of the consideration for a property settlement involving a divorce of the decedent’s son. Pursuant to the provisions of G. S. 1949, 59-2402a, as amended, and 59-2402b, the matter was transferred from the probate court to the district court where, after hearing, the claim was allowed. Appeal has been duly perfected from the judgment and various rulings and orders of the trial court.
The underlying question is whether, under the facts and circumstances here presented, the oral promise is enforceable as a matter of law.
Evidence as to whether the oral promise was actually made by the decedent was in sharp conflict. It may be said the basic findings of fact made by the trial court are supported, in substance, by the evidence, assuming the evidence under challenge on appeal was admissible. We shall, therefore, not burden our reports with a detailed account of the evidence, but present the facts by quoting the findings made by the trial court as set forth in its journal entry of judgment:
“Findings of Fact.
“1. The decedent, U. S. Goff, died testate in Graham County, Kansas, on the 15th day of December, 1958, a resident of Graham County, Kansas. Mary C, Goff and David U. Goff were duly appointed, qualified, and are now acting as executors of said estate. The petitioners, Steve Clayton Goff and Perry Lenn Goff, are minors. They filed their joint claim against the estate by their mother and natural guardian, Evelyn (Goff) Brock. No legal guardian has been appointed for said minors. Their claim was properly and timely filed in the Probate Court of Graham County, Kansas, and transferred upon proper petition, notice, and order to the District Court for trial as provided by G. S. 1959, 59-2402a and 59-2402b.
“2. The decedent, U. S. Goff, was survived by the following heirs-at-law:
Mary C. Goff, his widow;
David U. Goff, a son;
Beth Collins, a daughter;
Miron D. Goff, a son;
Perry G. Goff, a son;
and the petitioners, Steve Clayton Goff and Perry Lenn Goff, are the children of Perry C. Goff and grandsons of the decedent.
“3. The decedent’s last will and testament was admitted to probate in the Probate Court of Graham County, Kansas, on July 27, 1959. It was dated and executed on May 24, 1958. The terms of said will bequeathed and devised all personal property and one half interest in all real estate owned by him at his death to Mary C. Goff, his widow. The other one half interest in the real estate was devised to Mary C. Goff for her life, and on her death the remainder in fee to David U. Goff, a son. No specific real estate was described by the testator in his will.
“4. The decedent held legal title to 2720 acres of land in Graham County, Kansas, at the time of his death, and included therein was 640 acres of land referred to in the evidence as the ‘Park’s Place,’ and specifically described as follows: [Description omitted] all lying and situated in Graham County, Kansas, and subject to mineral reservations of record.
“5. Perry C. Goff and Evelyn (Goff) Brock were first married in 1950. One son, Steve Clayton Goff, was bom August 26, 1952, and the other son, Perry Lenn Goff, was bom December 1, 1954. The parents were divorced in February, 1956. They remarried on December 2, 1956. They were again divorced in May 1959 by decree of a Florida court. Evelyn (Goff) Brock was granted the care, custody and control of the minor children, and they have continued to live with their mother in Florida.
“6. During the marriage Perry C. Goff acquired the 640 acres of land known as the ‘Park’s Place’ from his father and mother, U. S. and Mary C. Goff. The deed of conveyance was introduced in evidence as ‘Petitioners’ Exhibit 1.’ The deed was acknowledged January 24, 1957, and recorded February 21, 1957. This deed was on a standard general warranty deed form, and the only reservation therein related to an interest in oil, gas and other minerals reserved to U. S. Goff and Mary C. Goff jointly and to terminate on the death of the survivor. The warranty clause contained no mention of prior grants or reservations. No condition subsequent was contained in the deed.
“7. Perry C. Goff and Evelyn (Goff) Brock and their two children continued to live on the farm in the house with U. S. and Mary C. Goff after Perry C. Goff acquired the ‘Park’s Place.’ In the late summer and fall of 1957 Perry C. Goff and Evelyn (Goff) Brock began having marital difficulties. While living with U. S. and Mary C. Goff, Perry C. Goff engaged in farming operations with his father on the Goff farms. A crop of milo had been planted and was growing on the farm. Fall wheat had been planted, and Perry C. Goff had some interest in the milo, wheat and livestock on the farm. He also was the owner of a car and a welding truck outfit.
“8. Evelyn (Goff) Brock consulted an attorney, Mr. Kenneth Clark, of Hill City, Kansas, about tire domestic difficulties with her husband. These consultations covered a period from the middle of August to the 1st of November, 1957. During this time not only Evelyn (Goff) Brock, but also Perry C. Goff, U. S. Goff and Mary C. Goff talked with Mr. Clark in an attempt to work out the marital difficulties. During the latter part of October it became ap parent to Evelyn that no reconcilation could be made between her and her husband, and she directed her attorney, Kenneth Clark, to prepare divorce papers to be filed in court against Perry C. Goff in which she would seek a divorce, alimony, property settlement, and support and custody of the minor children.
“9. A petition was prepared by Mr. Clark together with other papers to restrain Perry C. Goff from disposing of his personal property. Af that time Perry C. Goff held legal title to the 640 acres of land known as the ‘Park’s Place.’ The land was subject to two mortgages. One mortgage was held by the Federal Land Bank of Wichita, Kansas, to secure a note signed by U. S. Goff, Mary C. Goff, Perry C. Goff and Evelyn Goff, in the sum of $7,100.00. The other mortgage was held by U. S. Goff and Mary C. Goff, jointly, to secure a note signed by Perry C. and Evelyn Goff, in the sum of $18,900.00. Certified copies of these mortgages and the $18,900.00 note was introduced in evidence and appear in the record as Petitioners’ Exhibits 2, 5, and 6, respectively.
“10. On the 30th day of October, 1957, Perry C. Goff, Evelyn (Goff) Brock, and U. S. Goff went to the office of Clark, Chipman & Clark, attorneys, in Hill City, Kansas, to attempt to work out a settlement of property rights, alimony, custody and support of the minor children between Perry C. Goff and Evelyn Goff. At that time in the presence of Kenneth Clark, Evelyn Goff, and Perry C. Goff, he (U. S. Goff) expressed an interest in the welfare of the minor children of the marriage. He stated that he would will the 640 acres of land known as the ‘Park’s Place’ on his death to his grandchildren, Steve Clayton Goff and Perry Lena Goff, provided Evelyn would join with her husband in deeding the land to U. S. Goff, and provided further that she would release all claim which she might have in the grouping crop of milo and wheat and all farming operations of U. S. and Perry C. Goff. As a part of this offer U. S. Goff agreed to release Evelyn from any liability on the note and mortgage he held against the land, and to save her harmless against the Federal Land Bank note and mortgage.
“11. After discussing the offer among themselves at the Goff farm, Perry C. Goff, Evelyn (Goff) Brock and U. S. Goff returned to the offices of Clark, Chipman & Clark, at Hill City, Kansas on November 2, 1957. There in the presence of Marion W. Chipman, Perry C. Goff, Evelyn (Goff) Brock, and Mr. and Mrs. S. A. Crosby, who are the parents of Evelyn, U. S. Goff renewed his previous offer and the same was accepted by Evelyn. On that date Perry C. Goff and Evelyn Goff, his wife, executed and delivered to U. S. Goff a deed to the ‘Park’s Place.’ This deed appears in the evidence as ‘Petitioners’ Exhibit 3.’ At that time Evelyn Goff executed and delivered to ü. S. Goff a written release covering all crops and farming operations on the Goff farm. This release appears in the evidence as ‘Petitioners’ Exhibit 4.’ U. S. Goff then arranged for an advance to Perry C. Goff of $1,000.00 which was paid to Evelyn, and a further advance of $125.00 which was paid to her attorneys.
“12. U. S. Goff orally agreed at this time to will the ‘Park’s Place’ to his grandchildren, Steve Clayton Goff and Perry Lenn Goff, on his death. This oral agreement was a major consideration and inducement to Evelyn Goff and caused her to deed the ‘Park’s Place’ to U. S. Goff and to release all claim to the crops and farming operations of U. S. Goff and Perry C. Goff*
“13. U. S. Goff did not devise the land known as the ‘Park’s Place’ to Steve Clayton Goff and Perry Lenn Goff. He failed to carry out the terms of the oral agreement made by him on November 2, 1957, for the benefit of these grandchildren. The oral agreement was clear and convincingly proven. It was fully and completely performed by Evelyn (Goff) Brock when she joined in the execution of the deed to this land and executed the release in writing of all claim to crops and farm operations of U. S, Goff and Perry C. Goff on November 2, 1957. All that remains to complete the agreement is to transfer title to this land specifically described in finding (4) herein to these two grandchildren.
“14. The oral agreement set up and alleged by defendants in their amended answer to live in the ‘Park’s Place’ or deed it back to U. S. Goff, was neither discussed nor considered by the parties on November 2, 1957, when the deed to U. S. Goff (Petitioners’ Exhibit 3) was executed and delivered.” (Emphasis added.)
The written documents evidencing the foregoing property settlement were as follows:
(1) Petitioners’ Exhibit 3 — a deed to Park’s Place from Perry C. Goff and Evelyn Goff, his wife, to U. S. Goff. The deed did not name Mary C. Goff as a grantee, although she was obligated on the Federal Land Rank note and mortgage and an equal owner with U. S. Goff of the additional mortgage for $18,900. The consideration recited in the deed was the sum of $1,000, receipt of which was acknowledged. The deed was subject to the 1957 taxes and mortgages of record, and subject to outstanding minerals of record, and also subject to oil and gas leases of record.
(2) Petitioners’ Exhibit 4 — a release as follows:
"Release and Agreement.
“The undersigned Evelyn Goff, wife of Perry C. Goff, does hereby assign any and all interest that she may have either individually, or as the wife of Perry C. Goff, in any of the growing crops or farming operations of Perry C. Goff and U. S. Goff.
“She further agrees that she will not again claim any interest in any of said farming operations and that U. S. Goff is the sole owner. The consideration for this being that U. S. Goff has advanced to Perry C. Goff the sum of $1000.00 paid to her and $125.00 to her attorneys Clark, Chipman and Clark. In addition to that consideration U. S. Goff releases the said Evelyn Goff and Perry C. Goff of all their obligations on a note and mortgage dated December 6, 1956, and the same is hereby cancelled. U. S. Goff assumes and agrees to pay the Federal Land Bank mortgage in the sum of Approximately $7100.00. Dated and signed this 2nd day oí November, 1957.
Evelyn Goff”
(3) Petitioners’ Exhibit 6 — the original note from Perry C. Goff and Evelyn Goff to U. S. Goff and Mary C. Goff in the sum $18,900. Written across the face of this note is: “Paid Nov. 2nd, 1957,” under which appears the signature of U. S. Goff.
(4) Defendants’ Exhibit A — a canceled check in the sum of $1,000 to Evelyn Goff signed by Casey Jones (attorney for U. S. Goff) showing that it was in payment “For all of her interest in all their (Perry & Evelyn) Property except house which belongs to Evelyn and all Goff & Goff farming operations.”
(5) Defendants’ Exhibit R — a canceled check in the sum of $125 to Clark, Chipman & Clark signed by Casey Jones showing that it was in payment for “Goff & Goff.”
It is clear from the record, and the parties agree, that the $1,000 recited as consideration in the deed (petitioners’ Exhibit 3) and the $1,000 recited in the release (petitioners’ Exhibit 4) is the same $1,000, and defendant’s Exhibit A evidences its payment.
After making the findings of fact, heretofore quoted, the trial court made written conclusions as follows:
“Conclusions of Law.
“1. This agreement of November 2, 1957, was fair, just and equitable in its terms and was fairly and reasonably entered into by the parties to provide for the minor children of Perry C. Goff and Evelyn Goff as a part of a final settlement of property rights of the parties in contemplation of a divorce between Perry C. Goff and Evelyn Goff. U. S. Goff held a present interest in matters in controversy. The agreement is valid and binding upon the parties to this action.
“2. The oral agreement was based upon a valid consideration furnished by the mother when she released all rights and claims she held to the land, crops and farming operations. The petitioners, her children, became third party beneficiaries to this agreement.
“3. The oral agreement to devise this property to the petitioners does not vary, nor change the terms of written instruments, such as the deed from Perry C. and Evelyn Goff to U. S. Goff, or the release and assignment of interest in growing crops and farming operations from Evelyn Goff to U. S. and Perry C. Goff. The written instruments referred to transferred all rights purported to be covered thereby, and thereafter Evelyn Goff held no further rights in either the land or in the crops and fanning operations. The petitioners were not parties to the deed nor to the release and make no claim to tire property by reason of said instruments. Even though the petitioners are minors and must prosecute this action by their mother and natural guardian, this does not change the fact that the minors are the real parties in interest. Evelyn (Goff) Brock is not claiming any interest in this land.
“4. The agreement by U. S. Goff to devise the land to Steve Clayton Goff and Perry Lenn Goff was a major consideration and inducement to obtain the deed to the land and to obtain a release of valuable rights in which Evelyn (Goff) Brock at that time had a legal claim of interest. The petitioners became third party beneficiaries of this agreement, and no assent to the contract or knowledge on their part of its existence is necessary to give them a right of action on it.
“5. The agreement was fully performed by Evelyn Goff by the execution and delivery to U. S. Goff of the deed to the land, and by the execution and delivery of the release of all claim to crops and farming operations in which both Perry C. Goff and U. S. Goff held an interest. The Statute of Frauds, G. S. 1949, 33-106 is not a bar to the enforcement thereof.
“6. The decedent, U. S. Goff, failed to carry out the terms of the agreement to will the land to his two grandchildren, the petitioners. The terms of this oral agreement should be specifically enforced against the Estate of U. S. Goff, deceased, by the decree and order of the court.
“7. The petitioners are entitled to judgment on their claim for specific performance of the oral agreement against the Estate of U. S. Goff, deceased; and they should have set over to them in equal undivided shares all right, title and interest held by the decedent, U. S. Goff, at the date of his death in the following described real estate in Graham County, Kansas, to-wit: [Description of Park’s Place omitted]
“8. The evidence introduced by defendants attempting to establish the alleged oral agreement to live in the ‘Park’s Place’ is not convincing to this Court. No such agreement was made.
“9. The petitioners, Steve Clayton Goff and Perry Lenn Goff, are adjudged to be the owners of said land, and all rents, profits and income from the same which have accrued since the decedent’s death should be set over to them subject to payment of taxes.
“10. The costs of this proceeding should be taxed to and against the Estate of U. S. Goff, deceased.”
Thereafter the executors of the estate of U. S. Goff, deceased (appellants) filed a motion for a new trial, a motion to vacate findings of fact, a motion to vacate conclusions of law, and a motion to clarify the findings and conclusions with relation to “the joint tenancy royalty reservation interest held and owned by U. S. and Mary Goff as joint tenants, with full right of survivor-ship, under deed made, executed and delivered by said U. S. Goff and Mary C. Goff, his wife, to Perry C. Goff, dated December 6, 1956, covering the Park’s Place in Graham County, Kansas.”
All of the foregoing motions were overruled with one exception. Conclusion of law No. 9 was amended to provide that “the petitioners, Steve Clayton Goff and Perry Lenn Goff, are adjudged to be the owners of said land subject however to any valid liens against the property existing at the date of death of U. S. Goff.”
This change made by the trial court as a result of the post-trial motions, and further efforts in pursuit of the change, is the subject of a separate appeal decided this date. (In re Estate of Goff, No. 43,093, 191 Kan. 94, 379 P. 2d 240.)
Twenty-four specifications of error are assigned for review on appeal, most of which concern rulings of the trial court admitting evidence of the alleged oral agreement over objections. It may be said generally, if the oral agreement found to have been made by the trial court is enforceable as a matter of law, the admission of the evidence by the trial court was proper, but if the oral agreement was not enforceable as a matter of law, it was inadmissible and should have been stricken, or not admitted in the first place.
Thus, many of the specifications resolve basically into one point —that findings made by the trial court are based upon incompetent evidence and are contrary to the terms of the written contract and deed executed by the parties on November 2, 1957.
In their ninth specification of error the appellants summarize their complaint by stating the trial court erred:
“In adopting each and all of the conclusions of law entered and made on July 31, 1961, on the ground that each and all of said conclusions are based upon incompetent and insufficient evidence, are contrary to the preponderance of the evidence in said cause, and that said conclusions taken as a whole violate the statute of frauds, and alter, change and vary the terms of the written agreement entered into between the parties on November 2, 1957, and as being contrary to the law and evidence in said cause.”
Many decisions in this court support the general proposition that an oral agreement to devise land may be enforced against the estate of a decedent. Situations in which such oral agreements have been recognized as enforceable are presented in the following cases: Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; James v. Lane, 103 Kan. 540, 175 Pac. 387; Taylor v. Holyfield, 104 Kan. 587, 180 Pac. 208; Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665; Dent v. Morton, 148 Kan. 97, 79 P. 2d 875; In re Estate of Henry, 157 Kan. 471, 142 P. 2d 717; Jones v. Davis, 165 Kan. 626, 197 P. 2d 932; In re Estate of Wert, 165 Kan. 49, 193 P. 2d 253, rehearing 166 Kan. 159, 199 P. 2d 793; In re Estate of Hilliard, 172 Kan. 552, 241 P. 2d 729; In re Estate of Boller, 173 Kan. 30, 244 P. 2d 678; In re Estate of Good, 175 Kan. 576, 266 P. 2d 719; and In re Estate of Hupp, 177 Kan. 202, 277 P. 2d 618.
The facts in the case of In re Estate of Hupp, supra, are similar to those in the case at bar. There the action originated as a demand against the estate of Katherine E. Hupp, deceased. Frank Hupp died intestate in 1948 and left as his heirs at law Katherine, George, Abbie, Sarah and Louise, his brother and four sisters. While Frank’s estate was pending in court, Katherine was instrumental in working out a family settlement agreement among the heirs so that Frank’s previously declared wish — giving 80 acres of land to an employee, Louis Spangler — would be fulfilled. In negotiating for the family settlement agreement, two of the sisters objected to deeding the 80 acres to Spangler. Whereupon it was alleged Katherine orally agreed that if they would deed the 80 acres to her, so she in turn could deed the property to Spangler, she would leave all her property upon her death to the children of Sarah and Louise, they being Katherine’s only nephews and nieces. A deed was thereupon executed by the brother and three sisters to Katherine conveying the 80-acre tract in question, which recited that it was made in consideration of the division of property belonging to the estate of Frank Hupp. Katherine in turn deeded the 80 acres to Spangler, and this deed recited that the conveyance was made to carry out the wishes of Frank Hupp. At the same time the foregoing deeds were executed, a written family agreement was entered into by George, Abbie, Sarah, Louise and Katherine for the distribution and settlement of Frank’s estate. In the written agreement a division of the property was made based upon the appraised value of the estate, after deducting the appraised value of the 80 acres in question. The agreement recited the expressed desire of Frank Hupp to leave Spangler the 80-acre tract as compensation for his labor and help during the last years of Frank’s fife.
Thereafter Katherine died leaving a last will and testament, executed on the day of her death, in which she left approximately $40,000 of her $100,000 estate to institution and friends other than her nephews and nieces, they being the children of Sarah and Louise.
Sarah and Louise filed their claim, in the nature of a demand, against Katherine’s estate setting out the alleged oral agreement with Katherine. The claim was disallowed by the probate court and on appeal to the district court it was also disallowed, after striking the extrinsic evidence of a prior parol agreement. The Supreme Court reversed with directions to grant a new trial, saying:
‘The family agreement, which pertained solely to Frank’s estate, was one thing. The alleged oral agreement, which pertained to the disposition by Katherine of her estate, was another. The alleged oral agreement in no way varied or contradicted the written family agreement. It is quite true that both were concerned with the disposition of the eighty-acre tract to Spangler, but in all other respects they were separate and distinct. The family agreement had nothing whatever to do with the manner in which Katherine was to dispose of her estate.
“Concerning the general rule to the effect that a written contract is deemed to merge into itself all prior negotiations with reference to the subject matter, this court said in In re Estate of Boiler, 173 Kan. 30, 244 P. 2d 678:
“ ‘We recognize the general rule contended for, but there are exceptions to it, and among them is one that the parol evidence rule does not preclude the admission of extrinsic evidence of a valid prior parol agreement which is separate both in form and substance from the written contract, although related in a general way to it. If the oral agreement does not vary or contradict the written agreement nor invade the particular field which the latter undertakes to cover, but instead has for its subject a matter the parties might naturally deal with separately, the oral agreement may be enforced.’ (p. 37.)” (pp. 207, 208.)
For the reasons hereafter stated, we think the law pronounced in the Hupp case as applied to the facts there presented controls the decision herein.
In this jurisdiction a party may avail himself of a contract made by others for his benefit, and he may maintain an action thereon, notwithstanding he is not a party to such contract, or had no knowledge of it, when it was made. (French v. French, 161 Kan. 327, 167 P. 2d 305, and cases cited therein at p. 330; Hagerman v. Hagerman, 160 Kan. 742, 165 P. 2d 431; In re Estate of Hilliard, supra; and see, 12 Am. Jur., Contracts, § 291, p. 844; and anno. 53 A. L. R. 181.)
The petitioners herein (the minor appellees) are third party donee beneficiaries to the agreement made by their mother (appellee) and their grandfather. They are legally the principal parties interested in the claim. The fact that they are minors without a legal guardian and are required to prosecute this action by their mother and natural guardian does not change the interests of the petitioners.
The appellants in the case at bar consistently refer to the agreement for the property settlement which contemplated a divorce as being a written agreement.
While it may be conceded that all of the agreements made by the parties in the instant case constitute one entire transaction, it would be incorrect to say that the parties, after negotiations, committed their agreements to a written contract. When agreement was finally reached by the parties it was oral. That is, the negotiations terminated upon Evelyn’s oral acceptance of the terms, conditions and promises. It provided for the execution of a warranty deed by Evelyn and Perry to U. S. Goff, and a release to be signed by Evelyn only. To accomplish the payment two checks were made in writing. No other writing was prepared by the attorneys and none was signed by tibe parties. The only signatures affixed by Perry and Evelyn to the same instrument were those affixed to the warranty deed. It contained no reference to any agreement for property settlement. The release was signed only by Evelyn, and no written instrument was prepared for the signature of U. S. Goff with either Evelyn or Perry as signatories. The release was prepared by the attorney for U. S. Goff, and the checks were signed by the attorney for U. S. Goff. The $18,900 note was canceled by writing the word “PAID” and giving the date over the signature of U. S. Goff across the face of the note. This was the only signature affixed by U. S. Goff to any of the writings.
Contrary to the appellants’ contention, U. S. Goff did not furnish the cash consideration mentioned in the release. The money was paid by Casey Jones. U. S. Goff merely advanced the money, through his attorney, as a loan to his son, Perry. Only $1,000 was paid to Evelyn in the property settlement, although the same $1,000 is recited as the consideration in both the deed and the release. It is thus significant that the $1,000 recited in the deed was not paid as consideration for the conveyance, unless it could be said Perry, one of the grantors, paid himself and Evelyn, the other grantor, money for the privilege of conveying the property to U. S. Goff as grantee.
It may therefore be said the evidence introduced at the trial which was of a written nature did not constitute a written agreement. The written instruments merely proved performance of a part of the oral agreements in the entire transaction.
As in the Hupp case, the oral agreement to devise the Park’s Place to the petitioners by U. S. Goff was entirely collateral, separate and distinct from the property settlement which contemplated a divorce between Evelyn and Perry. It was between Evelyn and U. S. Goff and for the benefit of the two minor children — the petitioners.
Even though the consideration in a separate collateral agreement be small in comparison to the value received, such collateral agreements have been enforced. A case in point is Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164. There a husband held a life insurance policy in which his deceased wife was named beneficiary. Desiring to collect its surrender value from the insurance company, the husband in compliance with a requirement of the insurance company procured a release from the heirs of his wife. In order to induce a daughter of a deceased son to sign such release, the husband promised to leave her one-third of his estate at his death, this being the share she would have inherited had he then died intestate. She accepted the proposition and executed the release. When the husband died he left a will giving his property to others. In upholding the agreement the court said it did not regard the agreement as a contract for the sale of an interest in lands within the meaning of the statute of frauds. The court further held that the consideration furnished by the promisee, although small in comparison to the value of the property she would receive, was sufficient to support the agreement. In the opinion the court stated:
“. . . The plaintiff was under no obligation to sign the instrument, and whatever the actual rights of the insured may have been as against the company, and whether or not the plaintiff had any interest whatever in the policy or its proceeds, her signature enabled him to realize upon it without controversy or litigation, and an agreement to pay for the accommodation was not rendered nonenforceable by the want of a valid consideration. . . .” (p. 452.)
Proof of a parol agreement relating to collateral matters was sustained in Phipps v. Union Stock Yards Nat’l Bank, 140 Kan. 193, 34 P. 2d 561. The court there said, “The parol evidence rule is not a rule of evidence, but of substantive law. Its applicability is for the court to determine, and when the result is reached it is a conclusion of substantive law.” (p. 197.)
The rule was further explained by citing Restatement, Contracts, §240, Comment on Subsection (lb) as follows:
“d. The justification of the Parol Evidence Rule is that when parties in corporate an agreement in a writing it is a reasonable assumption that everything included in the bargain is set down in the writing. Though this assumption in most cases conforms to the facts, and the certainty attained by making the rule a general one affords grounds for its existence, there are cases when it is so natural to make a separate agreement, frequently oral, in regard to the same subject-matter, that the Parol Evidence Rule does not deny effect to the collateral agreement. This situation is especially likely to arise when the writing is of a formal character and does not so readily lend itself to the inclusion of the whole agreement as a writing which is not limited by law or custom of a particular form. Thus, agreements collateral to a negotiable instrument if incorporated in it might destroy its negotiability, and in any event would deprive it of the simplicity of form characteristic of negotiable paper. So in connection with leases and other conveyances, collateral agreements relating to the same subject-matter have been held enforceable. These illustrations of what agreements ‘might naturally be made’ without inclusion in an integrated contract are not exclusive. It is not essential that a particular provision would always or even usually be made in a separate collateral agreement. It is enough that making such a provision in that way is not so exceptional as to be odd or unnatural.” (Emphasis added.)
A recent case which involved a number of written instruments and one oral agreement is Hummel v. Wichita Federal Savings & Loan Ass’n, 190 Kan. 43, 372 P. 2d 67. After discussing the force and effect of the parol evidence rule the court said there is a wide distinction between an attempt to contradict the terms of a written instrument and to explain the circumstances and conditions under which it was executed and delivered. It has regularly been held that where a contract is incomplete or silent in any particular parol evidence is admissible to show the actual agreement between the parties, and this is not limited to cases where there is ambiguity. (See, also, Kirk v. First National Bank, 132 Kan. 404, 295 Pac. 703.) The parol evidence rule is not violated when such evidence tends to show the relation of the parties and the circumstances under which the instruments were executed. (Handrub v. Griffin, 127 Kan. 732,275 Pac. 196.)
The appellants contend it was error for the trail court to strike from its original answer the defense that the widow (Mary C. Goff) was entitled to an undivided one-half interest in the Park’s Place by reason of a resulting trust.
Upon examination of the record it is found that Mary C. Goff and David U. Goff are executors of the estate of U. S. Goff, deceased. The petitioners filed their claim in the probate court on the 8th day of April, 1960, setting up the alleged oral contract entered into by U. S. Goff. Thereafter, on May 9,1960, the executors filed an inventory and appraisal setting forth the description and valuation of all property owned by the decedent. The fiduciarys’ affidavit was sworn to by Mary C. Goff and recited that it was a complete inventory of all the estate of U. S. Goff, deceased, which had come into her possession or knowledge. It specifically described, among other real estate, the 640 acres known as the Park’s Place. (Mineral interests held by Mary C. Goff were shown by reason of previous joint tenancy ownership with U. S. Goff and reservations upon conveyance.)
On August 13, 1960, Mary C. Goff and David U. Goff filed then-answer and written defense to the claim.
The defense which the executors claim was denied to them attempted to show that U. S. Goff did not own the Park’s Place at the time of his death — thus setting fourth details inconsistent with the sworn affidavit of Mary C. Goff as a fiduciary in the estate.
Therefore, Mary C. Goff was attempting to take an inconsistent position in that portion of the original answer which the trial court struck.
Nowhere does it appear that Mary C. Goff resigned as an executrix, or that she filed a claim against the estate of U. S. Goff, setting forth her ownership to a one-half interest in the Park’s Place on the theory of a resulting trust. Under the circumstances, Mary C. Goff, widow of U. S. Goff, deceased, was estopped to assert the defense which the trial court struck from her original answer to the claim filed by the petitioners. (Wilson v. Stephenson, 143 Kan. 91, 53 P. 2d 874.)
Finding No. 6 is supported by evidence and discloses that Mary C. Goff and U. S. Goff, as joint tenants, conveyed the fee title to the Park’s Place to Perry Goff. At that time Mary C. Goff divested herself of any title to the Park’s Place subject, however, to a reservation of oil, gas and other minerals held by U. S. Goff and Mary C. Goff as joint tenants. The grantors also took a mortgage from Evelyn and Perry in the sum of $18,900, and obligated themselves on another note and mortgage to the Federal Land Bank of Wichita, Kansas, with Evelyn and Perry (Finding No. 9).
Upon the conveyance of the Park’s Place by Evelyn and Perry to U. S. Goff, Mary C. Goff was left out. Insofar as the record discloses, therefore, the interest which Mary C. Goff conveyed was never returned to her.
By conclusion of law No. 9, as modified, the petitioners were adjudged to be the owners of the Park’s Place subject to any valid liens against the property existing at the date of death of U. S. Goff. What interest Mary C. Goff had, if any, in outstanding liens, or in oil, gas and other mineral reservations, is not the subject of this appeal. Certainly, the petitioners could take no greater title to the Park’s Place from the estate of U. S. Goff than the interest which U. S. Goff had in the Park’s Place at the time of his death.
Upon all of the facts and circumstances presented by the record herein, it is held the trial court’s action in striking the defense, which asserted a resulting trust in favor of Mary C. Goff, from her original answer did not prejudicially affect the substantial rights of Mary C. Goff.
The oral agreement made by U. S. Goff to will the Park’s Place to the petitioners was supported by sufficient consideration.
The consideration which Evelyn gave was fulfilled by the performance of her part of the agreement. Evelyn released all her rights in 640 acres of land on which U. S. Goff and Mary C. Goff held a mortgage — land which U. S. Goff and Perry were farming. While it is true that Evelyn had only an inchoate interest in the Park’s Place, it was, nevertheless, the interest for which U. S. Goff bargained. She further released any claim to 700 acres of standing milo, an unknown number of acres of growing wheat, and other fanning operations being jointly carried on by U. S. Goff and his son, Perry. She also abandoned her contemplated action for divorce and property settlement in Graham County, which would have involved all farming operations of U. S. Goff. (She later procured a divorce from Perry in the state of Florida.) This was sufficient consideration. (See, Stahl v. Stevenson, supra.)
Mutual promises and acceptance of benefits, however small, constitute valid consideration. (Potucek v. Blair, 176 Kan. 263, 270 P. 2d 240; First Federal Savings & Loan Ass’n v. Thurston, 148 Kan. 88, 80 P. 2d 7; Kramer v. Walters, 103 Kan. 135, 172 Pac. 1013; and Peoples Exchange Bank v. Miller, 139 Kan. 3, 29 P. 2d 1079).
The appellants contend the particular interest to be willed by the decedent was indefinite — that the petitioners failed to prove whether U. S. Goff was to make a will devising the property to the petitioners in fee simple absolute, or whether he was to devise the property subject to encumbrances, mineral reservations and leases.
The indefiniteness claimed by the appellants relates only to the extent of the title held by U. S. Goff in the Park’s Place. It is clear U. S. Goff could devise no greater interest in the Park’s Place to the petitioners than he held at the time of his death. As heretofore stated, the extent of the title acquired by the petitioners could be no greater than that held by U. S. Goff at the time of his death, and this is not the subject of this appeal. At the time the oral agreement was made by U. S. Goff it was not known how long he would five. This was recognized in the last will and testament of U. S. Goff when he made the following devise:
“I hereby give, devise and bequeath an undivided one-half interest in and to all of the real estate that I may own or he entitled to at my death to my wife Mary C. Goff.” (Emphasis added.)
Accordingly it is held the conclusions of law made by the trial court are supported by its findings of fact, which in turn are supported by the evidence presented in the record.
The judgment of the lower court is affirmed.
Parker, C. J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This is a common-law action to recover for personal injuries arising out of a collision of two automobiles. The appeal is by certain of the defendants from an order overruling their demurrer to the petition.
The story, as related by the allegations of the petition, is as follows:
At about 7:15 a. m. on November 3, 1957, the plaintiff, being fifteen years of age and being an agent, servant and employee of defendant newspaper company, was riding as a passenger in an automobile driven by defendant Smith, who, at the time, also was an agent, servant and employee of defendant newspaper company. Plaintiff and Smith were engaged in delivering the Sunday newspapers of defendant company, and, while proceeding west on a county road, Smith negligently and carelessly drove the car into and against the side of another car proceeding south through an intersection. Defendant Smith was guilty of seven specified acts of negligence which were the sole and proximate cause of the collision and resulting injuries to plaintiff.
In addition, defendant newspaper company was guilty of seven specified acts of negligence which were the direct and proximate contributing cause of the collision, among them being in permitting, delegating and sending plaintiff upon the highways with an inexperienced driver; in permitting, delegating and sending plaintiff, a fifteen-year-old boy, upon the highways in the nighttime, and in permitting plaintiff to work during the night and in an automobile upon the highways, in violation of G. S. 1949, 38-602 and 38-603 of the Child Labor Law, and in violation of the Fair Labor Standards Laws pertaining to child labor, 29 U. S. C. A. §§203 and 212.
As a result of the collision plaintiff sustained serious and permanent injuries.
The defendants, other than Tribune, Inc., and Smith, filed a demurrer to the petition on the ground that (1) the petition failed to state facts sufficient to constitute a cause of action; (2) the court had no jurisdiction of such defendants or of the subject of the action; (3) there was another action pending between the same parties for the same cause before the workmen s compensation director and that by virtue thereof plaintiff had no legal capacity to sue in a common-law action, and (4) that plaintiff’s cause of action, if any, was exclusively under the workmen’s compensation law.
Attached to the demurrer was a copy of a claim filed by plaintiff to recover workmen’s compensation for the injuries in question.
The demurrer was overruled, and such demurring defendants have appealed.
The record shows that during the course of the proceedings the action was dismissed as to defendant Tribune, Inc. We also are told that defendant Smith is not a party to this appeal.
In their brief defendants say the question presented is whether a fifteen-year-old employee of a daily newspaper may file an action to recover for injuries sustained by accident arising out of and in the coruse of his employment under common-law negligence theories while at the same time making a claim for compensation for such injuries under the workmen’s compensation act — that is, is such an employee limited to the recovery provided by the workmen’s compensation act, and does he have an election as to whether he recovers under common-law negligence or under the act. They further contend that if plaintiff is not governed by and entitled to the benefits of the workmen’s compensation act his action against defendants is precluded because of the fact his injuries were proximately caused by the alleged negligence of his fellow employee, Smith.
As contended by plaintiff, we think defendants are attempting to inject matters which are entirely outside of and beyond the allegations of the petition — and which properly should be asserted by answer. The petition is silent as to whether the parties are governed by the workmen’s compensation act. Under our statutes (G. S. 1949, 60-705) a demurrer is directed only to those matters appearing on the face of the petition, and where the claimed defect does not so appear the objection to the petition may be taken by answer (G. S. 1949, 60-707.) A demurrer cannot serve to bring facts into the petition which might constitute a defense thereto. That is the function of an answer (G. S. 1949, 60-710). These rules have been stated and applied many times. We mention a few of our decisions: American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468; Lee v. Beuttel, 170 Kan. 54, 223 P. 2d 692; Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194; Wahl v. Walsh, 177 Kan. 176, 277 P. 2d 623, and Bell v. Hanes, 190 Kan. 765, 768, 378 P. 2d 13.
In the present state of this case questions pertaining to the application of the workmen’s compensation act, the provisions of the child labor statutes, and the “fellow servant” doctrine — simply are not before us. The demurrer to the petition was correctly overruled and the ruling is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
On April 13, 1962, defendant was arrested by a highway patrolman for the alleged offense of driving an automobile while under the influence of intoxicating liquor and transporting an open bottle. The defendant was taken before the county court and formally charged with violating G. S. 1949, 41-804, and G. S. 1959 Supp., 8-530. On the same day the defendant entered a plea of guilty to the charges, and the county court accepted his plea. The defendant was sentenced to seven days in jail and assessed fines and costs totaling $139.65. Immediately the defendant began serving the imposed sentence in the county jail, and three days later, on April 16, he was granted, and he accepted, a parole and paid his fines and costs. At no time did the defendant file an appeal from the judgment imposing the fines and imprisonment. (G. S. 1949, 63-401.)
On May 26, long after defendant had paid his fines and costs and accepted a parole, and after the time for appeal had expired from the judgment and sentence, he filed a motion to withdraw his plea of guilty and to set aside the judgment based thereon. The county court overruled this motion, and the defendant appealed from that order to the district court. The district court heard defendant’s motion, entered an order allowing defendant to withdraw his plea of guilty and ordered the judgment and sentence of the county court vacated and set aside. From this order the state has appealed. (G. S. 1949, 62-1703.)
The determinative question in this case is whether under the circumstances the district court had the power to entertain defendant’s appeal from the county court’s order denying defendant the right to withdraw his plea of guilty. Assuming, without deciding, that the county court could hear a timely motion to withdraw a plea and set aside a conviction in a proper case, the defendant in the instant case could not avail himself of this remedy. He made no attempt to appeal (G. S. 1949, 63-401), but served three days of his sentence, accepted a parole for the remainder of his sentence, and paid the fines and costs before he filed his motion to withdraw his plea and vacate the judgment.
The procedural rule that applies under such facts and circum stances was considered in the case of Wilhite v. Judy, 137 Kan. 589, 21 P. 2d 317. In that case the appellant was arrested for a city traffic violation. He put up a cash appearance bond. He appeared in police court and was convicted. He gave authorization to the chief of police to take the amount of the fine out of his cash bond. Three days later appellant appeared before the police judge with an appeal bond and asked that it be accepted. It was refused. From the order of the police court appellant then brought mandamus action in the district court to compel the police judge and the clerk of the court to accept and approve his appeal bond. The trial court refused the appellant’s requested writ. This court affirmed the district court and stated:
“When the adjudged fine had been paid as the plaintiff directed, the judgment was satisfied and discharged and the prosecution effectually ended. The payment constituted an acquiescence of the judgment and necessarily defeats ■an appeal.” (p. 590.)
In the case of In re Bair, 166 Kan. 228, 199 P. 2d 807, the district court dismissed an appeal from the police court because the evidence clearly showed that while in the police court the defendant voluntarily paid the fine and costs. This court stated:
“One who was arrested in police court for being drunk upon the streets of a city, and who was sentenced to pay a fine and costs and committed to the city jail for thirty days, who voluntarily paid the fine and costs and was committed to jail, has waived his right to appeal from the conviction and sentence.” (Syl. 2.)
(See, also, State v. Massa, 90 Kan. 129,132 Pac. 1182; 4 Am. Jur. 2d, Appeal and Error, § 272, p. 766; 24 C. J. S., Criminal Law, § 1668, p. 1049; Anno. 42 A. L. R. 2d 995, 1007.)
In the instant case the defendant, by entering his plea of guilty ■of the offenses charged in the county court, by serving a portion of the sentence and accepting the parole granted by that court, and by voluntarily paying the fines and costs assessed, has recognized the validity of the judgment and acquiesced therein and is thereby precluded from reviewing the conviction or filing a motion to withdraw his previous plea of guilty, and his right to a review of the conviction by an appellate court is barred.
In view of the circumstances in the instant case neither court had the power or authority to entertain defendant’s motion to withdraw his plea of guilty and to set aside the previous judgment and sentence, and defendant’s appeal to the district court was ineffectual and a nullity.
The order of the district court is reversed and the case is remanded with directions to set aside the order sustaining defendant’s motion to withdraw his plea of guilty in the county court, to set aside the order vacating the judgment of the county court, and to dismiss the defendant’s attempted appeal.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to foreclose a subcontractor’s lien for materials used on real estate. (G. S. 1949, 60-1403.) Trial was by the court and judgment was rendered for the plaintiff lumber company, and the defendants Pond have appealed.
This case was here previously. (Woods-Ringstaff Lumber Co. v. Pond, 188 Kan. 369, 362 P. 2d 615.) No further reference is necessary to that appeal other than to note that it was held the district court erred in denying the defendants the right to file amended answers.
The pertinent facts in this appeal are summarized: Defendants Pond contracted with Wayne Line, d/b/a Line Supply and Construction, to make certain repairs to a factory building. The agreed price between Line and the defendants for the repairs was $13,000. Line purchased building materials from plaintiff, Woods-Ringstaff Lumber Company, for use on the defendants’ building, the last purchase purportedly being made on December 23, 1957. The defendants, partly through subsequent agreements with Line and partly because of overcharges made by him, paid Line the sum of $18,000 for the repairs.
Line failed to pay the lumber company for the materials purchased. On February 21, 1958, the plaintiff lumber company filed a materialman’s lien for the amount of the materials purchased by Line for use on the defendants’ building. Notice of the lien was personally served upon the defendants.
On October 21, 1958, Line filed a petition for bankruptcy and sought discharge from all his debts including those of the plaintiff lumber company. The plaintiff did not file a claim in bankruptcy against Line for the amount of the materialman’s lien involved, but it did file a claim for $790.24 on another entirely different account which had no relation to the lien claimed, and was for materials not used on the Pond building.
On January 19, 1959, Line received a discharge in bankruptcy.
On February 16, 1959, the lumber company commenced the instant action against the defendants and Line, d/b/a Line Supply and Construction. Prior to trial of the case, an order was made granting Line judgment on the pleadings based upon his discharge in bankruptcy. The appellants Pond are hereafter referred to as the defendants.
In the lumber company’s lien statement affidavit and in all subsequent petitions filed in the district court, the various plaintiffs, as hereafter detailed, alleged under oath that the last material furnished by the lumber company which was used on the defendants’ building was furnished on December 24, 1957. The parties concede that if the last material was furnished at any time prior to December 23, 1957, the lien statement was not timely filed; also, that December 22, 1957, was Sunday.
When the action was first commenced the Woods-Ringstaff Lumber Company was a partnership composed of R. C. Woods, E. E. Woods, O. H. Woods and W. F. Ringstaff. After the action was filed, it developed that the partnership had been dissolved prior to the filing of the action by the death of O. H. Woods. Subsequently, an amended petition was filed by a different or second Woods-Ringstaff Lumber Company which alleged the partners were R. C. Woods, E. E. Woods, Muriel Lough Woods and W. F. Ringstaff. Thereafter, and on April 10, 1959, W. F. Ringstaff died and the second partnership was dissolved by his death. The probate court appointed R. C. Woods as surviving partner to take over and liquidate the affairs of the partnership. Woods as surviving partner, filed a petition as an intervening plaintiff alleging that he was a proper person to bring the action.
The defendants filed answers to the petitions of plaintiff (the second Woods-Ringstaff Lumber Company) and to the intervening plaintiff. The plaintiff lumber company and intervening plaintiff filed replies and demurrers to the answers.
The surviving partner wound up the affairs of the second partnership by selling the interest of the deceased partner (W. F. Ring-staff) and all of the original assets to a newly formed partnership (the third Woods-Ringstaff Lumber Company composed of R. C. Woods, Muriel Lough Woods and E. E. Woods), and he asked the court by motion which was sustained, to substitute the newly formed partnership as plaintiff. The substituted plaintiff filed a petition which was later amended because of a mistake, and the defendants filed their answer thereto. The substituted plaintiff filed its reply to the separate answer which contained a special demurrer to paragraphs 9,10, and 24 of the answer. The reply denied all allegations in the answer except those contained in paragraphs 9, 10, and 24. On September 9, 1961, the court overruled the substituted plaintiff’s demurrer and no appeal was taken from that order.
Paragraph 9 of the defendants’ answer alleged that the assignments of the lien statement and claim were not in conformity with G. S. 1949, 60-1404. Paragraph 10 alleged that the third WoodsRingstaff Lumber Company was not the real party in interest in the action, and paragraph 24 alleged that because of its conduct in regard to the Line bankruptcy case in the United States District Court the Woods-Ringstaff companies were barred from claiming any lien upon the defendants’ property or recovering from them.
The defendants’ answer further alleged that the purported lien statement was not filed within 60 days from the date the last material was furnished by any Woods-Ringstaff Lumber Company for use on their premises; that it was not properly itemized and failed to conform to the provisions of G. S. 1949, 60-1403; that defendants had fully paid Line for his labor and material; that the defendants were not indebted to any plaintiffs, and that a part of the money paid Line by defendants was paid by him to the WoodsRingstaff Lumber Company which was applied by the lumber company in payment of other Line accounts. The answer denied that Line was the agent, servant or employee of defendants or that he was authorized to incur any indebtedness against them or their real estate, or that there was ever any privity of contract between any of the plaintiffs and the defendants.
With the issues thus joined the case proceeded to trial. The three partners testified that they had no personal knowledge of the details of the lien claimed, but testified as to the organization and dissolution of the various Woods-Ringstaff Lumber Companies. R. C. Woods testified there was never any written assignment of the lien in question and that no entry was made of any transfer or assignment of the Ken on the Ken docket in the clerk of the district court’s office.
L. E. Wilson, the manager of the lumber company, testified he had no personal knewledge as to when the last material was furnished except for delivery ticket No. 09384 dated December 23, 1957, which was for one $1.28 sack of cement which Line later testified was Portland cement. Wilson further testified that he did not have personal knowledge of every transaction with Line and that the reason the last item furnished Line for use on the defendants’ property was stated in the verified Ken statement to be December 24, 1957, was that tickets for a particular day were often written in the ledger the following day and evidently the sack of Portland cement was purchased on December 23, 1957, and entered in the ledger on December 24,1957.
Apart from dehvery ticket No. 09384 which was admitted in evidence, the plaintiffs’ entire case rested upon Line’s testimony. Having alleged in its Ken statement and in all its pleadings that the sack of Portland cement was furnished and used on December 24, 1957, the substituted plaintiff then sought to prove that it was furnished and used on December 23, 1957, the only day left which would bring the purchase within the 60 day period prior to the filing of the Ken statement.
Line testified for the plaintiff and for the defendants, and was recalled by the plaintiff on rebuttal. It was from his testimony that the defendants first heard the plaintiffs claim as to the exact date and use of the sack of Portland cement. He testified the Portland cement was purchased and used to lay a four-inch tile drain on December 23; that the tile for the drain was purchased on December 18, and the trench was dug on that date; that four bags of masonry cement (as distinguished from Portland cement) were purchased from the lumber company on December 19 (as shown in the lien statement); that the laying of the tile was delayed because the ditch was dug in solid rock; that a combination of masonry cement and Portland cement was used in laying the tile; that on December 23, there remained to be laid 20, 25 or 30 pieces of three-foot tile; that the last thing he bought was one sack of Portland cement on December 23, which was used to complete the drain on December 23, although on one occasion Line became confused and stated it was the 24th, and on another occasion he stated he left the job on Saturday, December 21. Thus, the so-called last sack of Portland cement became irrevocably linked to the four-inch tile drain and in order to recover the plaintiff was required to prove that at least a portion of the drain was laid on December 23rd or 24th.
During the progress of Line’s work for the defendants he submitted time sheets showing the labor and materials used each day. Defendants’ Exhibit P was the time sheet for December 19, which showed the tile drain was laid on December 19. Defendants’ Exhibit U was the time sheet showing the labor and materials furnished on December 14th, 21st, 23rd and 24th, and it failed to show any Portland cement or any other cement furnished or used on December 23rd or 24th, and failed to show the laying of any sewer line on either of those two days. Line testified that defendants’ Exhibits P and U were true and accurate time sheets. In passing we note that the lien statement itself showed the four-inch drain tile was purchased on December 18, and four bags of masonry cement were purchased on December 19. Further, there was no purchase of Portland cement shown on the lien statement except the disputed item dated December 23.
At this juncture we note the sequence of the series 09000 delivery tickets which were a part of plaintiff’s Exhibit 6. The numbers and dates of those delivery tickets are as follows: December 18, 1957, ticket No. 09478; December 19, 1957, ticket No. 09489, and December 23, 1957, ticket No. 09384 (the ticket for the disputed sack of Portland cement). Thus, ticket No. 09384 would logically have been made out prior to those of December 18th and 19th. This fact is particularly significant in view of Pond’s stout insistence that the drain tile was laid in its entirely on December 19, and in view of Line’s testimony that the laying of the tile commenced on December 18.
Line’s rebuttal testimony is even more illuminating. He testified that the last item of material was purchased and used on Monday morning, December 23, in laying the last 25 feet of drain tile. He stated that a portion of the tile had been laid December 18th or 19th, but that he did not finish on those dates and did not cover the tile because he discovered the ditch had to be dug in solid rock. On cross examination Line repudiated his testimony given in the plaintiff’s case in chief and stated he did not use the sack of cement on December 24th but used it on the 23rd. He admitted the work sheet showed the last day of work on the four-inch tile was Thursday, December 19, and that was the last time the drain tile was mentioned in any report. He further stated that there were 20 feet not completed on December 19; that he bought masonry cement at the time he bought the tile for the drain; that he bought the Portland cement to complete the last 20 feet and the only inference tenable from his testimony was that masonry cement was used on the first portion of the drain and the Portland cement was used on the last 20, 25 or 30 feet.
Pond vigorously denied any work was done on the tile drain on December 23rd or 24th, and denied that a sack of Portland cement was furnished or used on either of those dates. He carefully explained why the sewer line or any portion of it was not laid on December 23rd or 24th, and testified he was present and that no Portland cement or any other type of cement was furnished or used on either of those dates. All the testimony was that the 24th was the last day anyone worked on the job.
The district court found that one sack of cement for which a charge of $1.28 was made was furnished on December 23, for use in the Pond building and was so used, and rendered judgment that the plaintiff was the holder of a valid sub-contractor’s materialman’s lien on the property described in the amount of $3,227.83, and the same was subject to foreclosure in that amount.
Line’s testimony so shocked and surprised the defendants that after judgment was rendered they immediately conducted an exhaustive investigation of the sewer line. Between the filing and the hearing of the motion for a new trial, the defendants secured evidence which utterly demolished Line’s testimony.
On December 20, 1961, the defendants had the sewer line reopened in the presence of the county engineer of Montgomery County, a commercial photographer, an attorney, and in their presence. The drain was first opened down to the tile and it was inspected in place. At the joints of the tile there was a cement like substance. Under the supervision of the county engineer workmen took samples of the material between each joint along the entire line. The tile drain ran in a southeastern-northwestern direction and samples taken from the southeast end were kept separate from samples taken from the northwest end. There was no rock formation or solid rock anywhere near the location of the tile drain.
At the hearing on the motion for a new trial the defendants pre sented affidavits and oral testimony. One Marquardt testified by affidavit that he operated a bowling alley next door to the Pond premises; that there was a tile drain running from the dock on the north side of the Pond building in a northwesterly direction to the northwest corner of the premises; that the area was used as a parking lot; that he knew of his own personal knowledge the tile drain had never been dug up, opened for inspection, examined or otherwise molested or tampered with until December 20, 1961, when it was uncovered under Pond’s direction. Photographs taken showed there was absolutely no rock or rock formation near the title drain. Samples taken of the cement like substance were forwarded to the United States Testing Company, Inc., Tulsa, Oklahoma, and analyzed by V. B. Dorsett. Dorsett, a qualified testing chemist, made careful tests of all samples, and contrary to the statements of Line and observations of the district court, testified that this material was pure Portland cement and there was no masonry cement in it. One Newland testified that he worked on the Pond project in the afternoons of December 23rd and 24th with his bulldozer and there was no trench dug or open ditch on the entire premises while he was there.
In overruling the defendants’ motion for a new trial, the district court disregarded the defendants’ evidence on the theory that it was merely cumulative. The particular significance of the evidence was it completely disproved Line’s testimony that the first portion of the sewer line was laid with masonry cement; it completely disproved his testimony that he used a combination of masonry and Portland cement in laying the tile drain, and that since masonry cement was not used in the tile drain, the physical facts demonstrate that the Portland cement was purchased and used at least as early as December 19, when the drain tile was laid. That evidence, when coupled with the sequence of the delivery tickets, shows that the purchase of the sack of Portland cement must have occurred prior to December 18th or 19th, and that the last item purchased from the lumber company was purchased either December 18th or 19th.
We are of the opinion the evidence offered at the hearing on the motion for a new trial was clearly not cumulative. It contradicted the testimony of the plaintiff and was of a different kind and character from that offered at the trial. It was newly discovered evidence within the meaning of the statute, and as hereafter stated, reasonable diligence was shown by the defendants in discovery of such evidence. We feel warranted in saying that if the testimony were given in evidence and believed by the court, such evidence would properly produce a different result and would compel the rendering of a judgment for the defendants. (Houghton v. Bilson, 84 Kan. 129, 113 Pac. 400; Davis v. Sim, 92 Kan. 264, 265, 140 Pac. 851; Blake v. National Mutual Casualty Co., 155 Kan. 201, 124 P. 2d 478.) In the Haughton case it was said:
“The proffered evidence was of precisely the same character, and bore upon precisely the same point, as some that was introduced at the trial by the successful parties, but it was not cumulative thereto, because it was to the contrary effect. It was not corroborative of the evidence of the prevailing parties, but contradictory. Of course a losing party may not demand a new trial because he has discovered a way in which to contradict his own witnesses. (29 Cyc. 899, note 52.) But if he has been defeated by reason of evidence offered by the adverse party which he has been unable to meet, and afterward discovers witnesses who are able to contradict those of his adversary, his new evidence may not be rejected as cumulative, notwithstanding evidence of the same sort, directed to the same question, was given at the trial. (The State v. Tyson, 56 Kan. 686; 29 Cyc. 909, note 82; 20 Cyc. 920, note 8; 3 Encyc. of Ev. 924.)” (l. c. 131,132.)
The record clearly demonstrates that the defendants were diligent in attempting to secure the facts. They attempted to contact Line prior to the trial and were informed by the attorney who represented him in the bankruptcy case that he lived in Chicago, Illinois, but the attorney divulged no street address. An attempt was made by letter to Line’s attorney to obtain his street address, but was to no avail. In any event, Line was not a resident of the state of Kansas and his address was unknown to the defendants. At the trial it developed that Line was a resident of Polas Hills, Illinois. Since he was the only witness relied upon by the plaintiff to show where the item “one sack of cement, December 24” was used, defendants had no way of anticipating what the testimony would be in regard to that item. Moreover, plaintiff mislead the defendants in the lien statement and in the various petitions by stating that the last material was furnished on December 24, although L. M. Wilson testified he knew plaintiff’s claim would be that the last material was purchased and used on December 23, and that he possessed this knowledge months before the last petition was filed.
We are of the opinion the district court erred in denying the defendant’s motion for a new trial. The new evidence consisted of physical facts and the testimony of disinterested witnesses which directly contradicted evidence of plaintiff on the vital point at issue and completely demolished and refuted all of the plaintiff’s testimony in regard to the date the last material was furnished by the lumber company and the date that material was used on the defendants’ property.
Other points have been briefed and argued by the parties but in view of the conclusion heretofore stated it is unnecessary that they be discussed and decided. Our review of the record compels the conclusion that the judgment of the district court must be set aside and a new trial granted the defendants.
It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellant) Mastic Tile Division, The Ruberoid Company, a corporation, commenced this action against defendant Leonard J. Porter, doing business as Custom Floor and Specialty Shop, hereinafter referred to as Custom Floor, and defendant (appellee) Moore Associates of Topeka, Inc., hereinafter referred to as Moore Associates, to recover a balance due on an open account. From an order of the trial court sustaining defendant Moore Associates’ demurrer to plaintiff’s verified petition as amended, on the ground the petition failed to state a cause of action against Moore Associates, the plaintiff has appealed.
The amended petition in substance alleged: That plaintiff was engaged in the manufacture and sale of floor tile; that defendant Leonard J. Porter was doing business as Custom Floor and Specialty Shop; that defendant Moore Associates of Topeka, Inc. was engaged in the construction of houses and buildings in the city of Topeka; that at the special instances and requests of defendants, and upon their implied promises to pay for their purchase of floor title, plaintiff sold and delivered floor tile to defendants upon open account. Copy of the account of charges and credits was attached and made a part of the petition.
The petition further alleged that the implied promises by the defendants to pay for the tile were based upon the following facts: The plaintiff, prior to extending credit to the defendants for the proposed purchase of the floor tile, required that all tile be paid for by Moore Associates by its check being drawn payable jointly to the plaintiff and defendant Custom Floor; that on March 31, 1960, by letter, Custom Floor stated the proposed terms of sale; that on April 6 the plaintiff, by letter, advised Moore Associates that a sale of the tile could not be consummated unless Moore Associates would agree in writing to pay for the tile as indicated in Custom Floor’s letter dated March 31; and that defendant Moore Associates, by its letter dated April 8, accepted the terms of purchase. These letters, all attached to and made a part of the petition, disclosed that Moore Associates wanted to buy in excess of 700,000 feet of floor tile from plaintiff through Custom Floor to be used in its building program. The cost of the tile was $24,000. Plaintiff was not willing to sell this tile on credit of Custom Floor alone unless Moore Associates would agree to pay for the tile by its check drawn jointly to plaintiff and Custom-Floor. The letters disclosed Custom Floor authorized payment by check from Moore Associates to the plaintiff and Custom Floor jointly, and by letter dated April 8 Moore Associates confirmed this agreement and promised to make payment for the tile by its. check drawn payable to plaintiff and Custom Floor.
The petition further alleged that the plaintiff, upon receiving confirmation of the mentioned agreement, and exclusively upon such confirmation that Moore Associates would pay the plaintiff for the tile, extend credit for the purchase of the tile upon open account to Moore Associates and Custom Floor jointly, carrying the name of Custom Floor and Specialty Shop only on the account; that thereafter, upon the joint credit of defendants, plaintiff sold the tile to the defendants upon open account, which tile Moore Associates used to its benefit in its extensive housing construction projects, and Moore Associates paid to the plaintiff a part of said account but has refused to pay the balance. Plaintiff asks judg ment against Moore Associates for the balance due of $9,680.01.
We are of the opinion that the verified petition as amended stated a cause of action and the trial court erred in sustaining Moore Associates’ demurrer thereto.
In the somewhat analogous case of Lumber Co. v. Elevator Co., 112 Kan. 734, 212 Pac. 662, at page 736, it was stated:
“It is a reasonable rule that one who, in good faith, ships goods to another may acquire the right to treat the other as a buyer, when the other, without disclaiming liability, receives and uses the goods, thereby receiving the benefit.
“In 23 R. C. L. 1263 it is stated:
“ ‘A contract of sale may be implied from the facts and circumstances of the ■case creating an obligation on the part of the buyer to pay for goods received from another, and ordinarily when one person receives goods or merchandise from another the law implies a contract on his part to pay therefor, which will support an action of assumpsit for goods sold and delivered. One cannot ordinarily accept goods from another and use them and then refuse to pay for them on the ground that he never ordered them.’
“When the defendant chose to accept plaintiff’s goods and use them in its •elevator, knowing that plaintiff was looking to it for payment, the law implied .a contract on its part.”
As early as Calahan v. Ward, 45 Kan. 545, 26 Pac. 53, it was shown that one, Mounts, desired to purchase from the plaintiff, a merchant, some groceries on credit. Plaintiff refused to sell to Mounts on credit. Mounts then called his employer, the defendant, and the defendant told the plaintiff he would be responsible for the groceries and to let Mounts have what he wanted. The goods sold pursuant to the arrangement were charged to Mounts instead of the •defendant Ward. This court said the matter should have been submitted to the jury for them to say whether the goods were sold to Mounts on his credit or on the credit of the defendant Ward. The court further said if the goods were sold to Mounts on credit of Ward, then the undertaking of Ward was an original one, and he would be liable under the circumstances set forth in the evidence.
Again, in Higgin Mfg. Co. v. Bankers Mortgage Co., 128 Kan. 267, 277 Pac. 44, the court, at page 269, said:
“It may, indeed, be stated as a general rule that wherever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.”
In the instant case the petition alleged the goods were sold to Moore Associates and that no credit would have been extended to Custom Floor had not Moore Associates agreed to make all checks payable jointly to plaintiff and Custom Floor. Moore Associates, by their letter of April 8 to plaintiff, stated:
“This letter will confirm our agreement to make all checks payable to Mastic Tile Division, The Ruberoid Company and Custom Floor & Specialty Shop.
“If you need any further information please do not hesitate to contact me.”
The petition further alleged that on this written promise the tile was shipped and under said agreement Moore Associates paid approximately $15,000 on the account, as disclosed by the statement of the account attached to the petition.
Moore Associates relies on the case of Failing Co. v. Cardwell Investment Co., 190 Kan. 509, 376 P. 2d 892. However, a reading of this case will disclose it has no application to the pleadings involved in the instant case.
Moore Associates used the tile to serve a beneficial purpose in their building project and it cannot be said that the statute of frauds has any application to the facts alleged in plaintiff’s petition. An examination of the petition together with the attached letters is sufficient, we think, to show a promise on behalf of Moore Associates to pay the account.
The judgment of the trial court is reversed with directions to overrule Moore Associates’ demurrer to the petition as amended and fix the time for the defendant (appellee) to answer. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal in a criminal case in which defendant (appellant) John L. Mize was convicted in the court below of the offenses of burglary in the second degree and larceny as defined by G. S. 1959 Supp., 21-520, and G. S. 1949, 21-524.
After the jury returned its verdict of guilty of the two offenses charged in the information defendant filed his motion for a new trial, consisting of four grounds. The motion was overruled and the defendant was sentenced as provided by law for the offenses; whereupon, he perfected this appeal.
Defendant’s notice of appeal to this court recites only that he appeals from the conviction and judgment rendered in the case. In his abstract defendant sets forth several specifications of error, all of which relate purely to alleged trial errors. Defendant did not appeal from the order overruling his motion for a new trial; therefore, despite his specifications of trial errors, such errors are not reviewable. Matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and, when an appellant seeks to have this court review alleged trial errors, he must appeal from tihe order overruling his motion for a new trial, and, in addition, must specify such ruling as error. He must do both. The above rule has been reiterated time and time again by this court. (See State v. Schneider, 188 Kan. 808, 366 P. 2d 27, and cases therein cited, including State v. Turner, 183 Kan. 496, 328 P. 2d 733, 359 U. S. 206,79 S. Ct. 739, 3 L. Ed. 2d 759.)
Inasmuch as defendant did not appeal from the order of the trial court overruling his motion for a new trial, and his specifications of error relate only to trial errors, there is nothing for the court to review and the judgment of the district court is affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action to determine the price at which natural gas is to be purchased under the terms of a gas purchase contract.
The plaintiff, The Pan American Petroleum Corporation, is a major producer of natural gas from extensive leasehold acreage in the Kansas-Hugoton gas field.
The defendant, Cities Service Gas Company, is a natural gas pipeline company, purchasing natural gas in producing fields and transporting it for sale to its customers. Defendant’s customers include distribution companies which resell the gas to ultimate consumers, both domestic and industrial, and large industrial customers who use the gas as fuel or raw material in manufacturing processes. Defendant supplies all of the major markets in Kansas and sells the large bulk of its gas in Kansas and in western Missouri.
On June 23, 1950, plaintiff and defendant entered into the gas purchase contract involved in this controversy. The contract, consisting of some 23 printed pages, will be highly summarized except for the few paragraphs material to the determination of the issues presented.
The Gas Purchase Contract recited that plaintiff was the owner of oil and gas leases covering approximately 600,000 acres in the Kansas-Hugoton Field. It provided that all of the gas produced or to be produced from all of such leases was to be sold by plaintiff to defendant under the terms and conditions of the Gas Purchase Contract. Plaintiff dedicated all of the reserves and all commercial gas wells upon the 600,000 acres to the performance of its obligations under the contract.
The contract contained the following purchase price provisions:
“Buyer shall pay Seller for all gas purchased by it hereunder the price of 8.4 cents per 1,000 cubic feet until June 23, 1961.
“For all natural gas purchased by Buyer from and after June 22, 1961, the price of such gas shall be the fair and reasonable price for each successive five (5) year period thereafter based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions, but in no event shall the price be less than 12 cents per 1,000 cubic feet.
“It is expressly stipulated that the delivery of gas by Seller under this agreement shall not be interrupted because of delay in the determination of the applicable price and the delivery of gas shall continue at the previous effective price. Upon determination of the new price, the price shall be applied retroactively to gas sold during the period when the price was undetermined.”
The contract contained provisions in case of sale or disposal by either party of any of its properties:
“Seller and Buyer mutually covenant and agree that if at any time during the term of this agreement either party shall sell or otherwise dispose of any of its properties or arrange for the operation thereof which are applicable to or used in the performance of this agreement, such sale, disposition, or arrangement shall only be made to or with a responsible party and shall be made specifically subject to this gas purchase contract; provided, however, that nothing herein contained shall be construed to prevent either party from pledging all or any portion of its property as security under any mortgage, deed- of trust, or other similar lien.”
The contract concluded:
“This agreement and each of its covenants and obligations shall inure to the benefit of and be binding upon the successors, trustees, and assigns of the parties hereto.”
Plaintiff has assigned about twenty-five percent of the acreage to third parties. Each such assignment contained the following or a similar provision:
“This assignment is made subject to all of the terms and the express and implied covenants and conditions of the leases described in Exhibit “A”, attached hereto, in so far as said leases cover the land described in said Exhibit “A”, which terms, covenants and conditions the Assignee hereby assumes and agrees to perform with respect to said land. Said terms, covenants and conditions, in so far as the said lease acreage is concerned, shall be binding on the Assignee, not only in favor of the lessors and their heirs, successors and assigns, but also in favor of the Assignor and its successors and assigns.”
In January, 1961, negotiations were commenced between plaintiff and defendant for the determination of the price applicable to gas delivered after June 23, 1961. Failing to agree upon the applicable price, plaintiff, as the sole party, commenced this action for the de7 termination of such price.
The plaintiff contended that the fair and reasonable price for the gas sold under the contract for the five years, commencing June 23, 1961, should be 19 cents per Mcf at 14.65 p. s. i. a. The defendant contended the price should be 12 cents per Mcf at 16.4 p. s. i. a.
The case was instituted and tried as a declaratory judgment action. The district court concluded that:
“1. A controversy exists between plaintiff and defendant within the purview of the declaratory judgment law and this action was properly brought.
“2. A fair and reasonable price for the gas sold under the contract here involved for five years commencing on June 23, 1961, based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions, is the sum of 14.5$ per Mcf at a pressure base of 14.65 psia.”
The defendant has appealed.
Although the parties did not raise or discuss the matter in their original briefs, appellant, in its oral argument before this court, raised the question as to whether the controversy as presented by the pleadings is justiciable under the declaratory judgment act. Supplemental briefs have been filed by both parties discussing the question.
Appellant cites the recent case of Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P. 2d 413, in which the court held in the syllabus:
“1. A declaratory judgment action is not an available remedy where the parties are not in accord as to what the contentions are and the legal question to be presented hinges on the determination of disputed questions of fact.
“2. While a declaratory judgment action may be maintained although it involves the determination of a disputed question of fact, it may not be used where a question of fact is the main issue or where the object of the action is to try such fact as a determinative issue.”
Although it is to be understood that this court is in no way abandoning or relaxing the rules announced in the above case, we do not believe the rules announced are applicable to the present controversy. The parties are in complete accord as to what the contention is.
The petition alleges:
“. . . that there is an actual controversy between Plaintiff and Defendant regarding the price which will become applicable under Exhibit ‘A’ [gas purchase contract] on June 23, 1961, Plaintiff contending that said price is 190 per Mcf at 14.65 psia and Defendant contending that said price is 120 per Mcf at 16.4 psia.
"That, by reason of the foregoing, an actual controversy exists between Plaintiff and Defendant regarding the meaning of paragraph 2 of Article IX of Exhibit ‘A’ and also regarding the price per Mcf which will be applicable under Exhibit ‘A’ during the five-year period commencing June 23, 1961.”
The answer alleges certain technical legal defenses, which will be discussed later, and then states:
“Under the terms and conditions, of the contract aforesaid, the price of the gas sold and delivered by plaintiff to defendant for the five (5) years period commencing June 23, 1961, is and shall be 120 per 1,000 cubic feet measured as provided for in Article X of said Contract.”
The parties would appear to be in complete accord as to the single controversy. Simply stated it is, under the terms of the contract, what is the fair and reasonable price for natural gas “based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions”?
Neither is the determination o£ a disputed question of fact the main issue in the controversy. The main issue would appear to be what contracts were admissible for comparison under the phrase, “paid by other purchasers in the field under similar contracts and conditions.”
Numerous contracts were presented to the trial court for its consideration by both parties. There was no dispute as to the factual matters contained in contracts. The two disputes were:
1. Were the contracts which were presented for the trial court’s consideration “in the field” and admissible as evidence for comparative purposes? This was a question of law.
2. Were the contracts presented for the trial court’s consideration similar and were the conditions similar making them admissible as evidence for comparative purposes? This was a question of law.
Once these questions were determined there was no dispute as to the evidentiary facts — the contents of the contracts including the price for gas.
Incidental, but only incidental, to the main issue was conflicting expert testimony as to the factors which tend to make the contracts and conditions similar. This again went only to the admissibility of the contracts which were to be used as evidence for comparative purposes. The experts were not in disagreement as to the facts, including the price for gas, contained in the contracts presented.
Under the peculiar circumstances in this case, which will be disclosed as we discuss other questions raised by appellant, it is difficult to find ony other adequate remedy available to plaintiff.
One of the purposes of the declaratory judgment act is to determine a controversy between the parties as to the interpretation of the provisions of a contract before the controversy is ripe for an ordinary civil action to obtain a money judgment.
In 26 C. J. S., Declaratory Judgments, § 3, page 52, the following statement is made:
“. . . As otherwise expressed, the purpose of a declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation, either as to present or prospective obligations, to secure an adjudication of rights which are uncertain or in dispute, and to liquidate uncertainties and controversies which might result in future litigation.
“It has also been said to be the purpose of such a proceeding to remove uncertainty from legal relations and clarify, quiet, and stabilize them before irretrievable acts have been undertaken, to enable an issue of questioned status or fact, on which a whole complex of rights may depend, to be expeditiously determined, and ta set at rest unsettled questions which have arisen in the attempts of contracting parties to interpret their written agreements.” (Emphasis ours.)
The appellant contends that the trial court erred in refusing to require that all parties united in interest with plaintiff be made additional parties to the action. The question was raised by motion for additional parties and by demurrer for lack of indispensable parties.. The contention is based on the fact that since the contract was entered into the appellee had assigned approximately twenty-five percent of the acreage to other parties.
Perhaps appellee’s assignees were proper parties, but they were not indispensable parties such as are anticipated by G. S. 1949, 60-401, which provides:
“Every action must be prosecuted in the name of the real party in interest.
The gas purchase contract specifically provides that any sale or disposition of any of the properties covered by the contract . . shall only be made to or with a responsible party and shall be made specifically subject to this gas purchase; . . .” The assignments appear to have been made subject to all of the terms and express and implied covenants and conditions of the leases described in the gas purchase contract.
The contract further provides:
“Seller hereby warrants title to the gas sold hereunder and the right of Seller to sell the same, and Seller warrants that all such gas is owned by Seller free from all liens and adverse claims, . . . Seller shall at all times have the obligation to make settlements for all royalties due and payments to Seller’s mineral and royalty owners and to make settlements with all other persons having any interest in the gas sold hereunder, and Seller agrees to indemnify Buyer and save it harmless from all suits, actions, debts, accounts, damages, costs, losses, and expense arising from or out of adverse claims of any and all persons to said gas. . . .” (Emphasis ours.)
The contract clearly contemplates that the Pan American Petroleum Corporation, formerly the Stanolind Oil and Gas Company, is the sole party to be dealt with by the appellant, as buyer, in any controversy arising under the gas purchase contract. It appears that there are approximately 125 persons residing in various states having some interest in the working interest in the oil and gas leases covered by the contract. The contract does not contemplate that the appellant would have to deal with all of them in arriving at the price of gas under the provisions of its contract with appellee.
The gas purchase contract was made for the benefit of the buyer and the seller and for the benefit of existing and contemplated assignees of various properties and acreages. It would appear that controversies arising under the contract are properly to be determined and settled by the original parties to the contract. Actions may be brought by or against either party to enforce the terms of the contract or construe its provisions. The appellee has the obligation to his assignees to enforce the provisions of the contract to which their assigned interest was subject. If the appellee does not properly perform its obligations, any person having a grievance arising out of the dealings between the appellee and appellant as contracting parties may present such grievances to the seller or the buyer and if not satisfied, seek proper relief in the court.
This was an action in personam. Many of the assignees were outside the state and could not be reached for service of process. Appellee could not be required to stand idly by and forego its rights under the contract simply because all of the parties could not be brought into the action.
The appellant relies solely on the case of Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 212 P. 2d 348, and the second appeal in the case, 172 Kan. 305, 239 P. 2d 927, as authority for its contention. The decisions are not in point. Without going into an extensive discussion of the issues, it may be stated that in the first appeal it appeared that the assignee of a sixty percent interest in certain oil and gas leases covered by a gas purchase contract was attempting to cancel the contract without making his assignors and co-owners a party to the action. This court held that the owners of the thirty percent interest were necessary parties in an action to cancel the contract.
In the second appeal, in considering an amended petition in which the assignors and co-owners were made parties, it was made to appear that the plaintiff had been assigned a sixty percent interest in oil and gas leases covering 3200 acres, which was a part of 6400 acres, all of which was covered by a gas purchase contract which was indivisible. The assignee was attempting to cancel the gas purchase contract covering the entire 6400 acres without making the owners of the lease on the remaining 3200 acres parties. This court held that the owners of the leases covering the 3200 acres, which were a part of the gas purchase contract, were necessary parties in an action to cancel the contract.
We would have a similar situation in the case now before us if the assignees holding a twenty-five percent interest in the 600,000 acres covered by the gas purchase contract in question were attempting to cancel the gas purchase contract without making their assignor, the holder of a seventy-five percent interest, a party to the action.
The plaintiff is not attempting to have the gas purchase contract canceled, which might result in a detriment to its assignees. It is attempting to have the contract construed and the price of gas fixed under the terms of the contract in order that it and its assignees have a contractual price for gas which could be submitted to the Federal Power Commission for its approval or rejection.
Appellant contends that the trial court erred in refusing its demand for a jury trial. It calls our attention to Section 5 of the Bill of Rights of the Constitution of Kansas, which provides:
“The right of trial by jury shall be inviolate.”
and G. S. 1949, 60-2903, which provides:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. . . ,” (Emphasis ours.')'
It should first be noted that the fact that an action is instituted as a declaratory judgment can in no way detract from the right to a jury trial if the right otherwise exists. Although such actions are not always suitable for a declaratory judgment action, if the issues of fact would be triable to a jury as a matter of right in an ordinary civil action, the right cannot be destroyed by the substitution of a declaratory judgment action. The matter is fully annotated in 13 A. L. R. 2d at page 777.
However, we do not believe the issues as framed by the pleadings present a question for a jury trial for two reasons. Basically, the action involves the construction of a contract or contracts. As we have previously stated, once the trial court had construed the provision for determining the reasonable price for gas “based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions” it had next to consider what contracts were admissible for comparison. Once the court determined the contracts which were admissible for comparison, there was nothing remaining to he done but to place such contracts beside the contract in controversy and construe them together. The contracts which were admissible for comparison were in effect incorporated into the contract in controversy by reference for the purpose of determining the reasonable price for gas to be purchased.
The construction of a written instrument is a question of law for the court. (Cattle Loan Co. v. Warren, 115 Kan. 21, 222 Pac. 138; Platts v. Thompson, 126 Kan. 544, 268 Pac. 833.)
Neither is this action for, nor could it be an action for, the recovery of money. The plaintiff could not recover a money judgment in this action. Neither could it have a finding or conclusion made which would form the basis for a money judgment. The most that the plaintiff could accomplish was the determination of the contract price. This price must then be submitted to the Federal Power Commission for its approval or rejection. It is not until the price is so approved that there is any basis for a money judgment. Even then the right exists only as to future pinchases. The price approved cannot be made retroactive and form the basis of a money judgment for past sales.
The authority for the above statement will- appear as we consider the next contention raised.
Appellant next contends:
“. . . that on or about May 23, 1961, plaintiff made application to the Federal Power Commission of the United States of America for a change in the rate applicable to the price for gas purchased and sold under contract exhibit ‘A’ to plaintiff’s petition, to a price of 12^ per Mcf at 16.4 psia, which price has been selected by plaintiff to be the rate under contract Exhibit ‘A’ for the period extending to June 23, 1966, and any controversy which may have theretofore existed in respect to such rate has become moot.”
Although we find little merit in the contention, a rather full presentation will clarify much that has already been said.
At the time the gas purchase contract was executed in 1950, the parties did not anticipate that the Natural Gas Act would be made applicable to the producers of natural gas] This is demonstrated by the language in the contract which provides that the new fair and reasonable price when determined shall be retroactive to June 23, 1961, but during the interim and until its de termination the delivery of gas shall continue at the “previous effective price.” Under the Natural Gas Act the provision providing any new price shall be retroactive is void and unenforceable.
In Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 98 L. Ed. 1035 S. Ct. 794 (1954), the Supreme Court stated:
“Regulation of the sales in interstate commerce for resale made by a so-called independent natural-gas producer is not essentially different from regulation of such sales when made by an affiliate of an interstate pipeline company. In both cases, the rates charged may have a direct and substantial effect on the price paid by the ultimate consumers. Protection of consumers against exploitation at the hands of natural-gas companies was the primary aim of the Natural Gas Act. . . .” (p. 685.)
In United Gas Co. v. Mobil Gas Corp., 350 U. S. 332, 100 L. Ed. 373, 76 S. Ct. 373, the court ruled that a regulated natural gas company furnishing gas to a distributing company under a long term contract, which was filed with the Federal Power Commission, may not change the price specified in the contract by simply filing a new rate without the consent of the distributing company. The price cannot be changed until it is filed and it cannot be filed until agreed upon by the parties. The court stated:
“The limitations imposed on natural gas companies are set out in §§ 4 (c) and 4 (d). The basic duties are the filing requirements: §4 (c) requires schedules showing all rates and contracts in force to be filed with the Commission and §4 (d) requires all changes in such schedules likewise to be filed. In addition, §4 (d) imposes the further requirement that the changes be filed at least thirty days before they are to go into effect. It may readily be seen that these requirements are no more than are necessary to implement §§ 4 (e) and 5 (a): the filing requirements are obviously necessary to permit the Commission to exercise its review functions, and the requirement of 30-days’ advance notice of changes is essential to afford the Commission a reasonable period in which to determine whether to exercise its suspension powers under §4 (e).” (p. 341.)
“All of the relevant provisions of the Act can thus be fully explained as simply defining and implementing the powers of the Commission to review rates set initially by natural gas companies, and there is nothing to indicate that they were intended to do more. Admittedly, the Act presumes a capacity in natural gas companies to make rates and contracts and to change them from time to time, but nowhere in the Act is either power defined. The obvious implication is that, except as specifically limited by the Act, the rate-making powers of natural gas companies were to be no different from those they would possess in the absence of the Act: to establish ex parte, and change at will, the rates offered to prospective customers; or to fix by contract, and change only by mutual agreement, the rate agreed upon with a particular customer. No more is necessary to give full meaning to all the provisions of the Act: consistent with this, §4 (d) means simply that no change — neither a unilateral change to an ex parte rate nor an agreed-upon change to a contract — can be made by a natural gas company without the proper notice to the Commission. . . (p.343.)
On May 22, 1961, plaintiff filed a Notice of Rate Change with the Federal Power Commission in which it requested the rate under the contract be changed to 12‡ on June 23, 1961, inasmuch as it is the guaranteed minimum specified in the contract. The Notice incorporated the provisions of the contract, recited the pendency of this law suit in Shawnee County, Kansas, and specifically reserved the right to file for any increase in price that might be determined by the Court. On August 4, 1961, the Federal Power Commission entered an order setting aside the former rate and permitting the 12‡ rate to go into effect as of June 24, 1961. The order recognized the pendency of this law suit and specifically permitted the change in rate without prejudice to this litigation. These proceedings before the Federal Power Commission instead of showing a waiver by plaintiff of its right to file for any additional price determined by the Court, preserved that right. The Federal Power Commission thus recognized plaintiff’s right to file for any additional price that might be determined by the Court in this case.
The appellee, on finding it impossible to fix the price by negotiations, could do nothing more than file the minimum rate provided by the contract while it sought the determination of the reasonable price by the court.
The appellant last contends that the trial court erred in excluding evidence and in admitting contracts in evidence which were not in the “field,” and not under “similar conditions.” The appellant states that the receipt of such evidence over defendant’s objection, and the court’s judgment based thereon, constituted reversible error.
The question is not properly before this court for determination. Appellant has not specified as error the order overruling its motion for new trial.
The improper admission or rejection of evidence constitutes a trial error. It has been held in a long line of decisions that where error in the overruling of a motion for new trial is not specified as error, trial errors which are specified are not subject to appellate review.
In Shelton v. Simpson, 184 Kan. 270, 336 P. 2d 159, it is stated:
“This court has held that trial errors including rulings of the trial court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the overruling of a motion for judgment on counsel’s opening statement, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant (Marshall v. Bailey, 183 Kan. 310, 313, 327 P. 2d 1034). (p. 272.) (Emphasis ours.)
In Green v. State Highway Commission, 184 Kan. 525, 337 P. 2d 657, the appellant specified as error the trial court’s admission of “. . . certain incompetent evidence, and refused to admit certain competent evidence, which was prejudicial to appellants.” The appellant did not specify as error the order overruling its motion for new trial. In the opinion the court stated:
“In deciding this case we are first confronted with the problem that while the landowners perfected their appeal from the order overruling their motion for a new trial, they fail to specify that ruling as error for appellate review. Harsh as the rule may be, this court has repeatedly held that errors relating to matters occurring at the trial for which a new trial is asked, cannot be considered on appeal unless the action of the district court in overruling the motion is specified as error.” (p. 526.)
A careful consideration of the record discloses that there were ample contracts presented to the trial court for consideration and comparison and that these contracts met the conditions specified in the gas purchase contract for determinging a reasonable price for the gas to be purchased, and support the findings and conclusions of the trial court.
The judgment is affirmed.
APPROVED BY THE COURT.
Robb, J., dissenting. | [
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The opinion of the court was delivered by
Hatches, C.:
This is an action to recover rental for the use of concrete forms. The controversy has developed largely into a dispute over the ownership of the forms.
The action was instituted by Henry J. Wiebe as plaintiff against the Walt Keeler Company, Inc., and Walt Keeler individually. The trial court sustained a demurrer to plaintiff’s evidence as to Walt Keeler, and no appeal was taken therefrom, leaving the Walt Keeler Company, Inc., as the only defendant in the case. In further clarification of the record, it may be stated that Henry J. Wiebe died after the appeal was perfected and his widow, Leona M. Wiebe, Administratrix of his estate, has been substituted as appellee.
The petition alleges, in substance, that during the month of March, 1956, the defendant corporation, through Walt Keeler, rented from the plaintiff 4,347 square feet of concrete forms at a monthly rental of ten cents a square foot. No written contract was entered into but defendant sent its trucks and did pick up and use the forms in construction work. Plaintiff made demands for the payment of the rental which was refused. There is due and owing as of March 21, 1959, thirty-six months rental on the forms at $434.70 a month or a total of $15,649.20.
The defendant filed its answer in which it denied that it had agreed, through Walt Keeler or otherwise, with the plaintiff to rent from him the concrete forms on the basis of ten cents per square foot a month or any other basis. It then alleges that sometime during the year 1956 Walt Keeler talked with the plaintiff as president of Prestress Engineering Co., Inc., of the possibility of Walt Keeler Co., Inc., using the concrete forms on a loan basis, that at no time during said discussion did the plaintiff claim or attempt to claim ownership of said forms, but that the forms were in fact owned by Prestress Engineering Co., Inc., and that the plaintiff, Henry J. Wiebe, individually, is not the proper party in interest to prosecute this action. Defendant further alleged that the plaintiff should be estopped to prosecute this action and to claim ownership of the concrete forms in question for the reason that said plaintiff for a considerable period of time acquiesced in the possession of said forms by the defendant, made no demands for over two years for the payment of rent, led the defendants to believe that their understanding of the contractual arrangement between the parties was correct, and failed to inform the defendant of his demands and assertions. All to the prejudice of the defendant.
The jury answered special questions and returned a general verdict in favor of the plaintiff in the amount of $5,868.45 which was approved by the court. The defendant has appealed. The general facts may be summarized.
The appellee, prior to 1954, was in the general contracting business and a customer of appellant who is in the ready-mixed concrete business. In late 1953, appellee approached Walt Keeler, president and major stockholder of appellant, relative to a new venture known as prestressed concrete reinforcement.
The Prestress Engineering Company, Inc., had previously been formed by appellee and incorporated in November of 1953. On May 28, 1954, appellant agreed to furnish a plant site then owned by it in return for $15,000 worth of stock being one-fourth of the shares of stock issued by the company. M. A. Isern put up $15,000 cash in return for one-fourth of the shares issued. Appellee was to have the other half of the shares issued for his “knowhow” and the contracting equipment which he owned that was suitable to the stress operation.
The appellee moved his equipment to the company’s property. The equipment included trucks, concrete mixers, and a variety of assets. Later in 1954 the concrete forms, which are involved in this controversy, were gathered from various job sites, reconditioned and stored at the rear of the company’s property. Shortly after the deal was consummated, the appellee made an inventory of the equipment which he was turning over to the company. The inventory was placed in the company’s files. It did not include the concrete forms.
About March, 1956, Walt Keeler approached the appellee and suggested that the appellant was constructing a concrete plant on West Highway 54 and asked for permission to use tire forms.
Shortly after the conversation, the appellant began moving the forms to the location mentioned. The forms were not moved all at one time but it appears that they were all taken prior to June, 1957. Some months after the forms were taken, the appellee started billing the appellant for rental. The appellant did not respond to the billings, hence this lawsuit.
The appellant first complains that the trial court erroneously refused to give certain requested instructions to the jury.
Appellant requested the following instruction:
“If you should find that any witness has wilfully testified falsely to any material fact, you are justified in disbelieving all that such witness may have testified to, unless such witness is corroborated by other witnesses whom you do believe, or by other credible evidence.”
The only instruction given by the court, bearing on the credibility of witnesses was as follows:
“You are the exclusive judges of all the facts appearing in the case, of the weight of the evidence and of the credibility of the witnesses. It is for you to decide what weight shall be given to the evidence and what credit shall be given to the testimony of the various witnesses.”
The appellant calls our attention to the fact that this court has recognized the propriety of the instruction requested. So it has. (Burgess v. Alcorn, 75 Kan. 735, 90 Pac. 239; State v. Towle, 132 Kan. 296, 295 Pac. 645; and State v. Kelly, 131 Kan. 357, 291 Pac. 945.) However, appellant has cited no cases where this court has held the failure to give the instruction constituted prejudicial error.
The appellant relies heavily on State v. Boyles, 34 Ida. 283, 200 Pac. 125, where it is stated:
“We are of die opinion, however, Üiat die refusal of such an instruction is reversible error when from the record it is clearly apparent that one or more witnesses have deliberately and wilfully given contradictory testimony as to a material fact, or there is a palpable and irreconcilable conflict between the evidence of different witnesses as to material matters. (Citations omitted.) •
“In the case at bar numerous witnesses testified on behalf of the state and of appellant, and there are direct, positive and irreconcilable conflicts in the evidence as to the essential and material facts involved in the action.
“The refusal to give the requested instruction was error. (State v. Waln, 14 Ida. 1, 80 Pac. 221.)”
The case appears to follow the general rule as stated in 88 C. J. S. Trial § 315c, p. 835:
“The necessity of giving an instruction audiorizing the jury entirely to disregard testimony of a witness testifying falsely to a material fact rests largely in the discretion of die court. Such an instruction is not one which should be given as a matter of course, but, where it is warranted by the evidence, according to the rule of some cases the court is bound to give it. Before such an instruction is required to be given in any case, there must be evidence ihat a witness willfully testified falsely on a material issue before die court.
“The instruction is always calculated to intimate that, in the opinion of the court trying tile case, some of die witnesses had testified falsely, and should, therefore, it has been said, ordinarily not be given. It should never be given unless die trial judge strongly suspects tiiat willful false swearing has been done in the case; but, where there is palpable false swearing in the case, either party so requesting is entided to it, and it is proper to give it where there is a sharp conflict in the evidence. . . .”
We find no positive irreconcilable conflict in the testimony of the witnesses as to the material facts involved, such as to justify invoking the rule in this case.
The appellee testified positively that the forms were not included in the equipment passing to the Prestress Engineering Company. He also testified positively as to the rental agreement. Mr. Isem, the third party to the original arrangement, testified frankly that he did not know whether the forms were to be transferred to the Prestress Engineering Company. He stated:
“I am very vague as to the assets to be transferred.”
Mr. Keeler testified that he knew nothing about Mr. Wiebe’s equipment until it appeared on the premises of the Prestress Engi neering Company. When the corporation’s name was painted on the equipment, he assumed it belonged to the company. There is no evidence that the company’s name was painted on the forms. Mr. Keeler further testified when asked as to the conversation with appellee as to the use of the forms: “1 don’t recall exactly what Mr. Wiebe said.” The testimony, rather than presenting a conflict, indicated honest inability on the part of the witnesses for appellant to remember.
The instruction, if given, might well have intimated to the jury that it should start searching for false testimony. There was no error in failing to give the instruction under the facts in this case.
The appellant objects because the trial court refused to give requested instructions on the doctrine of equitable estoppel. Conceding that the appellant’s requested instructions properly stated the law on equitable estoppel, there was no evidence to justify the submission of the question to the jury.
The parties were dealing at arms length. There is no evidence that the appellee made any misrepresentations as to the ownership of the forms. They were not listed in the inventory of the assets to be transferred. On this issue a simple question was presented as to whether the forms were owned by the appellee or had been transferred to the Prestress Engineering Company.
Requested instructions, although correctly stating a principle of law, should not be given if there is no evidence which brings the issue into the case. (Zook v. State Highway Comm., 156 Kan. 79, 131 P. 2d 652,145 A. L. R. 129n.; Auwarter v. Kansas City, 136 Kan. 571, 16 P. 2d 547, and Townsend, Administrator v. Jones, 183 Kan. 543,331P. 2d 890.)
The appellant contends that the trial court erred in refusing to submit five requested special questions to the jury. The trial court did in effect give two of the requested instructions. Two of the other requested instructions presented questions pertaining to equitable estoppel. As we have previously stated, there was no evidence which raised an issue of equitable estoppel. A special question should not be submitted on an issue which is not supported by the evidence submitted. (Fidelity Savings State Bank v. Grimes, 156 Kan. 55,131P. 2d 894.)
The jury answered a special question as to whether the parties did or did not enter into an oral agreement for the rental of the forms, as contended by the appellee, in the affirmative. The appel lant objects because the court did not further require the jury to state “what do you find were the terms of such rental?” The special question was too broad. The special question did not ask for the rental price or an answer to any other single issue. It, in effect, asked the jury to set out all of the terms of the rental agreement. A special question should distinctly present a single material fact involved in the issues of the case. A special question should not be submitted which requires a jury to state the evidence in detail, explanatory of the general questions. Webb v. Boulanger, et al., 116 Kan. 711, 229 Pac. 754.)
The record discloses no trial errors which would justify a reversal.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an action by the surviving parents, Charles B. and Barbara Williams, plaintiffs (appellants), for the wrongful death of their minor son, Mark Lee Williams. The action is founded upon alleged malpractice and is brought against the defendant doctors who interposed demurrers to the plaintiffs’ evidence, which the trial court sustained. This appeal is taken only from the judgment of the court sustaining the demurrers of the defendants (appellees ) Drs. Frank L. Menehan, C. T. Hagan and Ray T. Parmley.
The sole question to be determined by this court is whether or not under the plaintiffs’ evidence the defendant doctors disclosed to the plaintiffs sufficient information about the diagnostic procedure to constitute informed consent.
A summary of the facts is as follows:
When not quite three years of age a congenital heart condition became apparent in Mark, the child showing some blueness around the lips and lassitude following exercise. His mother took him to their family physician in Eureka, Dr. Robert L. Obourn, who examined the child but found nothing especially wrong with him, but because of the history of blueness around the lips recommended the child be examined by Dr. Frank L. Menehan of Wichita, a well-known pediatrician.
On November 23, 1956, at the request of Dr. Obourn and the plaintiffs, Dr. Menehan examined Mark and made a diagnosis of a possible congenital cardiac defect and recommended the child be subjected to a further diagnosis, known as a cardiac catheterization, to be performed by a team of medical doctors to be arranged for by the defendant Menehan.
The mother specifically inquired of Dr. Menehan if the proposed cardiac catheterization procedure involved any risk or danger to the child. Dr. Menehan replied to her that a team of doctors performed the catheterization and they had not had any trouble.
The mother made no decision at that time upon Dr. Menehan’s recommendations but returned home to talk it over with the child’s father, and a few days later Dr. Menehan called plaintiffs and informed them he had made arrangements for the medical team to do the catheterization on December 6,1956.
Two days prior to the scheduled operation plaintiffs brought Mark to the hospital where, for the first time, the father met Dr. Menehan. The father had no knowledge concerning the cardiac catheterization procedure, or the risk of injury or death, if any, to the child. He specifically asked Dr. Menehan about this and file doctor described in a general way the procedure, and assured the father that the medical team he had chosen had done numerous cardiac catheterizations, and there should be no problem. Dr. Menehan further advised the plaintiffs that Dr. C. T. Hagan would be in charge of the procedure; that he was an experienced doctor specializing in cardiac catheterizations; and that he would contact the plaintiffs before the catheterization and explain it to them.
On December 5, Dr. Hagan talked with the father, and when the father asked him if there was any risk to the child involved in doing the heart catheterization, Dr. Hagan replied, “Absolutely none. We do these tests on grown-ups and we do them with local anesthetics. We don’t even put them asleep but on your boy we will put him asleep and he won’t know anything about it.”
On the morning of December 6, about 6:30 o’clock, Dr. Glen Eaton, an associate and agent of defendant Dr. Ray T. Parmley, administered to Mark 500 milligrams of sodium pentothal as an anesthetic. After it had taken effect, Mark was taken to tibe laboratory for the performance of the cardiac catheterization. During the catheterization of Mark he awakened and started struggling and 100 milligrams of sodium pentothal were injected into the blood stream through the heart catheter. Withing twenty seconds after this injection Mark’s heart rate slowed considerably, his blood pressure was not obtainable, his pulse was barely perceptible, he was given oxygen and cardiac massage was instituted, normal rhythm could not be established, and Mark was pronounced dead at 10:00 a.m.
Plaintiffs contend that the defendant doctors failed in their duty to disclose to them, as parents of Mark, the risks involved in the cardiac catheterization; that the consent they gave to the performance of said medical procedure was not an informed consent; that their evidence so sustains their claim; and that under the law and the evidence the trial court committed reversible error in sustaining the demurrers of the defendants.
At the outset it may be stated that all of the parties rely on our recent case of Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, rehearing denied 187 Kan. 186, 354 P. 2d 670, the parties seeking to place a different construction on what was said with reference to informed consent. We said in the Natanson case at page 406 it is the duty of a doctor to make a reasonable disclosure to his patient of the nature and probable consequences of the suggested or recommended treatment, and to make a reasonable disclosure of the dangers within his knowledge which are incident or possible in the treatment he proposes to administer. But this does not mean that a doctor is under an obligation to describe in detail all of the possible consequences of treatment. To malee a complete disclosure of all facts, diagnoses and alternatives or possibilities which might occur to the doctor could so alarm the patient that it would, in fact, constitute bad medical practice.
Further, on pages 409-410, we said the duty of the physician to disclose, however, is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to assure an informed consent, the physician’s choice of plausible courses should not be called into question if it appears, all circumstances considered, that the physician was motivated only by the patient’s best therapeutic interests and he proceeded as competent medical men would have done in a similar situation.
In view of the mentioned rules set forth in Natanson v. Kline, supra, we are of the opinion that under the evidence the three defendant doctors made a reasonable disclosure of the nature and consequences of the proposed treatment.
The record in this case discloses that the mother of the child took him to their family physician in Eureka, Dr. Obourn, who in turn recommended the child be examined by Dr. Menehan. Dr. Menehan subsequently examined the child and determined the boy’s heart was enlarged and that some cardiac difficulty was present. As an aid to further diagnosis, Dr. Menehan advised the parents Mark should be placed in a hospital where a cardiac catheterization could be performed, a procedure in which a catheter is passed through a vein in the patient’s left arm and advanced through the venous system into the heart and then into the pulmonary artery, the purpose being to reveal pressures and other conditions within the heart itself, the catheter being connected to monitoring equipment that records the pressure and other conditions within the heart that are essential aids to the diagnosing physician. Dr. Menehan discussed this procedure, explained its necessity to the mother, who in turn discussed it with the father, and Dr. Menehan further advised the parents that this was a routine diagnostic procedure, not uncommon, and involved no danger of risk or injury to Mark.
Dr. Menehan also advised Dr. Obourn, the parents’ doctor at Eureka, of his diagnosis, and subsequently the parents talked to Dr. Obourn.
Dr. Menehan also advised the parents that there was only one team of physicians in Wichita who performed cardiac catheterizations, i. e., Dr. Hagan, a heart specialist, and Dr. Parmley, an anesthesiologist, who were members of this team.
It was further explained to the parents immobility of the patient is essential because of the fact the passing of the catheter into' the heart itself can produce injury to the patient and the valves of his heart if there is any jerking or sudden movement on the part of the patient. Thus, with a small child unconsciousness must be induced by anesthetic, and in this case sodium pentothal was decided upon.
Dr. Menehan also advised the parents that this team had performed some 100 of these catheterizations without any bad results.
Relying upon Dr. Menehan’s statement, the parents employed Dr. Hagan to perform the cardiac catheterization. The day before the operation Dr. Hagan talked to' the father of the child and advised him that there was absolutely no danger in the operation.
The parents testified that they realized that there was some danger in any operation. The father testified, “I knew when you went to a hospital and when you cut into a vein and put a tube in there it involved some risk,” and further, that he knew there was some risk involved in this procedure. The mother testified that both she and her husband had a fair understanding of what the procedure was. She further testified that when she talked to Dr. Hagan in the afternoon the child was admitted to the hospital that he didn’t say there was no hazard, he said they do three or four a month and they never had encountered any trouble.
Dr. Parmley testified there was some risk in the use of sodium pentothal.
Notwithstanding the complete disclosure on the part of the defendant doctors, plaintiffs offered no evidence of what a reasonable physician would do under like and similar circumstances, no evidence it was wrong for Dr. Menehan to call for a cardiac catheterization, no evidence it was medical error to do this diagnostic procedure or that the manner in which it was performed was error, nor any evidence the choice of anesthetic or the amount administered was erroneous. The evidence clearly shows that plaintiffs were informed of the nature of the procedure and of the things the doctors were undertaking to do. They had the facts upon which to base their decision, and we are of the opinion the parents were fully informed. The record is devoid of any standard of care required of the defendant doctors, much less any violation of such standards, known or unknown.
The evidence introduced by the plaintiffs was wholly insufficient to establish a case of liability against any of the defendants. It also was insufficient to permit a jury to speculate as to what the defendants should or should not have done.
The facts in this case are unlike the facts in the Natanson case. There Dr. Kline made no disclosure whatsoever, and the treatment was new and very dangerous; while in the instant case Dr. Menehan advised plaintiffs of the procedure sufficiently to con stitute an informed consent. There was no evidence of this operation being extremely hazardous; no evidence of any death resulting from such an operation or any malpractice in performing the exploratory treatment. No evidence of fault or breach of proper medical standards was established against the defendant doctors. There is nothing in this action to detract from the rules of law laid down in the Natanson case.
A diligent examination of the record reveals it is devoid of a factual issue to submit to the jury. Therefore, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action in the nature of an equitable proceeding by minority stockholders of a Kansas corporation seeking to set aside the sale of certain shares of the corporations stock, and for injunctive and other relief.
The trial court found generally for defendants, and rendered judgment accordingly. Plaintiffs have appealed.
Briefly summarized, the background of the matter is this:
Odor-Aire, Inc., hereinafter referred to as the company, was a Kansas corporation engaged in the manufacture of chemical products. Its office and plant were in Wichita. Plaintiff, Charles C. Browning, Jr., was president and chairman of the board. The company was experiencing internal and financial difficulties, and in the spring of 1961 Browning was removed from any position of authority. The articles of incorporation contained a first-option provision whereby any stockholder who desired to sell his shares of stock was required first to offer them for sale to the remaining stockholders. The articles also contained a provision which reserved to the company the right to amend, alter, change or repeal any provision contained in the articles, and provided that all stockholders, directors and officers were subject to such provision. In the meantime various negotiations were being carried on by the stockholders relative to the possible sale of stock. Apparently the financial affairs of the company were going from bad to worse. On September 18, 1961, the board adopted a resolution ehminating the first-option provision from the articles of incorporation and called a meeting of the stockholders to vote on the proposition. On October 13, 1961, the first-option provision was repealed by a majority vote of the stockholders. On the same day the Big D Chemical Co., an Oklahoma corporation, offered to purchase all of the common stock of the company, including plaintiffs’. The sale was not consumated. On November 8, 1961, the Oklahoma company purchased the majority stock, and on March 19, 1962, the board of directors of the company voted to merge it with the Oklahoma company.
On March 30, 1962, plaintiff Browning and other minority stockholders filed this action seeking to set aside the sale of shares of stock to the Oklahoma company; to impose a constructive trust upon the stock so sold; to compel the sale of those same shares to plaintiffs, and to enjoin the merger of the company with the Oklahoma company. An ex parte order restraining the merger was ob tained. After a hearing the restraining order was dissolved and plaintiffs’ motion for a temporary injunction was denied. As heretofore stated, after hearing the evidence the trial court found generally for defendants and rendered judgment accordingly.
In their briefs plaintiffs contend:
1. The trial court erred in failing to allow plaintiffs to be heard on the merits of the case and in ruling adversely to them without giving them an opportunity to argue on the merits.
2. Provisions in articles of incorporation or bylaws restricting or prohibiting the sale or transfer of a corporation’s stock to an outsider until other stockholders have been given an opportunity to purchase are contractual in nature and binding upon each stockholder, and such provisions commonly referred to as first-option provisions cannot be altered or repealed without the assent of all stockholders, and any attempted sale in violation of these provisions is null and void.
3. Kansas law does not permit the merger of two corporations when the plan of merger would prejudice the rights of minority stockholders of the domestic corporation and unjustly enrich the stockholders of the foreign corporation.
4. A merger of a Kansas corporation into a foreign corporation is not permitted under Kansas law (G. S. 1949, 17-3705).
On the other hand, in support of the trial court’s judgment, defendants contend:
1. Counsel for plaintiffs was not denied permission to argue the merits of the case.
2. The contract between plaintiffs and the other stockholders provided that the first-option provision in the bylaws could be repealed by a majority vote of the stockholders, and that such was done.
3. The proposed merger of the company with the Oklahoma company is authorized by Kansas law.
4. The trial court correctly held that plaintiffs were not entitled to equitable relief because of their unclean hands, waiver, equitable estoppel and laches.
Concerning plaintiffs’ first point — that counsel was denied the right to argue the cause on its merits — the record shows that after defendants rested their case the court inquired of plaintiffs if they desired to offer any rebuttal evidence. Counsel replied in the negative — whereupon the court stated:
“The Court is ready to rule. The Court renders judgment for the defendants for costs.”
It is admitted by plaintiffs that no specific request to argue was made, but it is contended there was not even an opportunity to do so with the court announcing its ruling immediately after both sides rested their case, and reliance is had upon Richa v. Wichita Precision Tool Co., 190 Kan. 138, 373 P. 2d 201, dealing with the question of the right of counsel to be heard. We adhere to what was there said and held, but the facts and circumstances of that case distinguish it from the one before us. Here there is nothing in the record to show that permission to argue was refused. When the court announced that it was ready to rule counsel remained silent. Argument was had at the hearing on the motion for a new trial. Our conclusion is that with respect to this point plaintiffs’ contention is without substantial merit and cannot be sustained.
No special findings were made. The court merely found generally in favor of defendants. The rule is that a general finding determines every controverted question of fact in support of which evidence was introduced and raises a presumption that the trial court found all facts necessary to sustain and support the judgment. (Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Manville v. Gronniger, 182 Kan. 572, 577, 322 P. 2d 789.) In the situation presented our function is not to speculate on the basis of the judgment but to determine whether the judgment as rendered is sustained by the record. (Hamilton v. Binger, 162 Kan. 415, 424, 176 P. 2d 553.)
Here the plaintiffs sought equitable relief. Defendants’ answer asserted equitable defenses and they contend the general judgment resolved all disputed factual issues in their favor, thus warranting the trial court in finding that plaintiffs were not entitled to resort to a court of equity because of their unclean hands, waiver, equitable estoppel and laches. Plaintiff Browning was the only witness for plaintiffs. With respect to the application of the first-option provision in question and examination of the record discloses prior dealings and conduct on his part directly inconsistent with his position subsequently taken. The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction. (Lillard v. Johnson County, 102 Kan. 822, 825, 172 Pac. 518; Lillard v. Johnson County, 106 Kan. 479,188 Pac. 223; Antrim v. International Life Ins. Co., 128 Kan. 65, syl. 5, 275 Pac. 1084.)
The record further establishes that the trial court was fully justi fled in concluding that Browning testified falsely as to material facts — thus precluding him and his colitigants from seeking and obtaining equitable relief. It is a universal rule that “equity can be invoked only by one who comes into court with clean hands.” Our conclusion, therefore, is that the judgment denying equitable relief to plaintiffs is fully supported by the record — and this renders it unnecessary to discuss other questions raised by them.
It should be noted that several of the defendants filed a cross-appeal from certain adverse orders made during the course of the trial. It also should be noted that certain of the defendants have filed a motion to dismiss the main appeal as to them.
In view of our decision affirming the judgment for defendants, there is no occasion to discuss and decide the merits of the cross-appeal or the motion to dismiss. Costs follow the judgment, and are assessed against plaintiffs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellant) W. H. Addington commenced this action pursuant to the provisions of G. S. 1949, 79-2005, against the defendants (appellees), the Board of County Commissioners, the county cleric and county treasurer of Morton county, to contest the validity of the assessment of plaintiff’s property for the year 1961, and to recover the illegal portion of the taxes so assessed and paid by plaintiff under protest.
The primary issue is whether an assessment that fixes the assessed value of plaintiffs property for tax purposes in excess of thirty per cent of its true value, while other property in the taxing district is assessed for tax purposes at the median ratio of twelve per cent of its true value, makes the assessment illegal as to the plaintiff-taxpayer.
Plaintiff’s petition, to which his protest was attached, alleged that the taxes were paid under protest, the amount being the result of a tax levied against assessments alleged to be excessive, illegal and void. The amounts involved were enumerated, plaintiff setting forth in his protest the amount of the legal tax due. Plaintiff was at all times the owner of a grain elevator and grain storage facilities in Morton county.
Pursuant to G. S. 1961 Supp., 79-1412a Eighth, the director of property valuation issued a grain elevator bulletin to all county clerks-assessors which provided in part that:
“The grain elevator schedule as it appears in the 1961 Personal Property Assessment Schedule has been compiled at 30 per cent of actual or true value. Permission is hereby granted the county clerk-assessor to equalize the assessed value as determined by the assessment schedule to the assessment ratio of the county. This applies to both real and personal grain elevators, tube and flat storage.”
The county clerk, acting as assessor, made a valuation of plaintiff’s property and then applied the thirty per cent formula, in accordance with the mentioned assessment schedule, to that valuation. The record discloses the median ratio of assessed value of real estate to its actual value of property in the county sold that year was twelve per cent.
The case was tried to the court, which made findings of fact and conclusions of law. The court found that plaintiff’s elevator properties were assessed and assigned a value for tax purposes of $134,805; that the fair market value of plaintiff’s property was $340,000; that the report of the real estate assessment ratio study for the year 1961 showed the median ratio of assessed value of real estate to its sale value on property sold that year to be twelve per cent, being nineteen per cent on urban real estate sold and eleven per cent on rural real estate sold; that certain items of plaintiff’s property were omitted intentionally by the assessor to compensate for depreciation not allowed as such on the storage facilities and to effect equalization from the thirty per cent market value established by the assessor’s manual to the twenty-one per cent the assessor was attempting to achieve; and that the assessor intentionally omitted a grain dryer worth $20,000, an aeration system in the concrete and flat storage, and a warehouse. The court then found there was no fraud or bad faith shown by the evidence on the part of the taxing officials, however inaccurate the results might appear, and concluded as a matter of law that the assessments complained of by the plaintiff were mistakes of fact for valuation purposes and were not illegal assessments of taxes as plaintiff contended; and further concluded that since the complaints of the plaintiff were mistakes in valuation and not an illegal assessment of taxes, it was a condition precedent upon the plaintiff for relief prayed that he appear before either the county board of equalization or the State Roard of Tax Appeals, and dismissed plaintiff’s petition, from which order plaintiff has appealed.
The plaintiff does not contend he owes no tax for 1961 but because of the alleged illegal assessment seeks abatement of part of the taxes levied. In essence, the plaintiff contends that the taxing officials, in assigning tax values for property in the taxing district, must use a uniform ratio between the assessed valuation for tax purposes and the true value of the property. The plaintiff does not complain that his property was assessed too high in and of itself but contends that since other property in the district was assessed at twelve per cent of true value and his property was assessed in excess of thirty per cent of true value, the assessment was illegal and the result of a systematic discrimination arbitrary in nature.
Art. 11, Sec. 1 of our state constitution provides that the legislature shall provide for a uniform and equal rate of assessment and taxation. In keeping with this mandate, the legislature made provision for a uniform and equal rate of assessment. G. S. 1949, 79-1406, provides that all property, real or personal, shall be valued at its actual value in money, and G. S. 1949, 79-501, also requires that both real and personal property be valued at its true value. It has been judicially recognized and is common knowledge that property in this state is not assessed at its true value, as required by the statutes. The habitual disregard of the statute relating to valuation of property for taxation by local assessors has been continuously condemned since the year 1872 (Adams v. Beman, 10 Kan. 37) in the decisions of this court. It was stated in C. B. & Q. Rid. Co. v. Comm’rs of Atchison Co., 54 Kan. 781, 788, 39 Pac. 1039:
“In every instance where this court allowed the assessors an inch of leeway in valuing property, they have taken the proverbial ell, and more. The injustice of the system of taxation, growing out of the constant and continued disregard of the proper valuation of property, becomes more and more apparent in every case brought to this court where such proceedings are reviewed. The words of advice given from time to time in the decisions of this court to local assessors have not been of any practical utility, and the condemnation by this court of such unlawful conduct has not been given respectful attention.”
(See, also, Cummings v. National Bank, 101 U. S. 153, 162, 25 L. Ed. 903.)
Where it is impossible to secure both actual value assessment and uniformity in assessment, the constitutional and statutory requirements of uniformity must prevail. The rule is well stated in 51 Am. Jur., Taxation, § 745, pp. 685, 686:
“Another ground for relief by way of abatement of tax assessments, which involves the valuation of property for tax purposes but is to be distinguished from simple overvaluation of the property, is the action of the assessing officers in placing a disproportionate valuation on particular property, or in other words, valuing certain property at a higher percentage of its actual value than other property in the taxing district is valued. Under many circumstances such action on the part of the assessing officers is regarded as good grounds for an abatement of the assessment on the property discriminated against, even though the result of such abatement is that none of the property in the tax district is assessed at its cash value as required by statute. The theory under which this violation or evasion of statutes requiring assessment at actual cash value is justified is that to permit a tax assessment which is disproportionate to other assessments to remain uncorrected would amount to a gross violation of the requirements of the constitutional provisions requiring uniformity of taxation, and that where it is impossible to secure both the standards of assessment at true value and equality and uniformity of taxation, the latter requirement is to be preferred as the just and ultimate purpose of the law.”
Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation. The duty to assess at full value is not supreme but yields to the duty to avoid discrimination. (Greene v. Louis, & Interurban R. R. Co., 244 U. S. 499, 61 L. Ed. 1280, 37 S. Ct. 673; Sioux City Bridge v. Dakota County, 260 U. S. 441, 67 L. Ed. 340, 43 S. Ct. 190, 28 A. L. R. 979; Cumberland Coal Co. v. Board, 284 U. S. 23, 76 L. Ed. 146, 52 S.Ct.48.)
It is apparent that uniformity is necessary in valuing property for assessment purposes so that the burden of taxation will be equal. (Wheeler v. Weightman, 96 Kan. 50, 58, 149 Pac. 977, L. R. A. 1916A, 846.) It makes no difference what basis of valuation is used, that is, what percentage of full value may be adopted, provided it be applied to all alike. The adoption of full value has no different effect in distributing the burden than would be gained by adopting thirty per cent, twenty-one per cent or twelve per cent as a basis, so long as either was applied uniformly. Uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one or a few taxpayers at a substantially higher valuation than that placed on other property within the same taxing district; however, this uniformity and equality in a constitutional and statutory sense does not require mathematical exactitude in the assessment valuation of property for taxation. In the instant case if all the property in the county had been assessed at thirty per cent of its true value, plaintiff would have no cause to complain. The fraud upon plaintiff’s rights resulted from the arbitrary distinction made between his elevator property and other property in the county. Mere excessiveness of an assessment or errors in judgment or mistakes in making unequal assessments will not invalidate an assessment, but the inequality or lack of uniformity, if knowingly high or intentionally or fraudulently made, will entitle the taxpayer to relief. (Bank v. Lyon County, 83 Kan. 376, 111 Pac. 496; Hamm v. State, (Minn. 1959), 95 N. W. 2d 649.)
In our recent case of Kansas City Southern Rly. Co. v. Board of County Comm’rs, 183 Kan. 675, 331 P. 2d 899, a tax protest action brought under the provisions of G. S. 1949, 79-2005, we held that a petition alleging arbitrary, oppressive and discriminatory acts of the taxing officials in assessing the taxpayer’s property at sixty per cent of its time value for tax purposes, while all other property in the county was assessed at twenty-one per cent of its true value, was sufficient to state a cause of action for a tax refund on the theory that the acts of the taxing officials in assessing the taxpayer’s property for tax purposes constituted fraud on the rights of the taxpayer and destroyed uniformity and equality both in the manner and result of fixing the assessed valuation. ' Much of what is said there is applicable in the instant case, and will not be repeated here. In the instant case the rate of assessment fixed by the county clerk-assessor at more than thirty per cent of the true value of plaintiff’s property, as compared to the rate of assessment of twelve per cent of the market value of all other property located in the county and subject to the same tax levy, was so arbitrary, oppressive and grossly discriminatory that it constituted constructive fraud on the rights of the plaintiff as a taxpayer and destroyed uniformity and equality in the manner of fixing the assessed valuation; also, it was illegal, thereby entitling the plaintiff to the relief sought as to the illegal portion of the tax paid under protest.
The trial court’s conclusion that plaintiff was required to first exhaust his administrative remedies before he could obtain the relief prayed for in his petition is erroneous. This action was commenced pursuant to section 79-2005 to contest the validity of the assessment and to recover the illegal portion of the taxes assessed. Although it would be entirely appropriate, and perhaps good practice, for a taxpayer to first present a grievance such as this to the administrative boards provided in the section, even though he claimed the assessment and levy were actually illegal rather than merely erroneous, nevertheless, courts cannot compel the taxpayer to adopt that procedure when the legislature makes it merely a cumulative and not an exclusive remedy. In the instant case the tax was an illegally assessed tax and not merely the correction of an error, an irregularity or mistake. The action was properly brought under section 79-2005.
The trial court attempted to justify the action of the assessor by its finding that in order for the assessor to equalize the assessed valuation he omitted certain items of property and, therefore, acted in good faith. G. S. 1961 Supp., 79-1412a Second, provides that the county assessor in the performance of his duties shall supervise the listing and assessment of all real estate and personal property in the county subject to taxation; G. S. 1949, 79-1406, provides that all property, real or personal, shall be valued at its actual money value; and 79-1426 provides that any assessor who shall knowingly fail to list or return for assessment or valuation any real or personal property, or who shall knowingly or wilfully list or return for assessment or valuation any real estate or personal property at other than its true value in money, or who shall wilfully or knowingly fail to equalize any real or personal property at its true value in money, shall be guilty of a misdemeanor. Even though the assessor may have thought he was acting in good faith, his illegal acts in failing to comply with the mandate of the legislature constituted bad faith and constructive fraud. He could not fail to assess a portion of plaintiff’s property and then apply the thirty per cent ratio to the remaining property so assessed. Good faith alone does not justify an assessment which is discriminatory in fact. (Hamm v. State, supra.)
In view of what has been said, the judgment of the trial court is reversed and the case is remanded with instructions to reinstate the action and enter judgment in plaintiff’s favor in accordance with the views herein expressed and in accordance with the provisions of G. S. 1949,79-2005.
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Hill, J.;
This case arises from a summary judgment ruling that permanently enjoined Coleman Company, Inc., from licensing its name in the recreational vehicle industry. In order to prevent inequity, Kansas courts have found, under an alter ego theory, that a subsidiaiy corporation can bind its parent. The issue of whether one corporation is but an instrumentality of another is a question of fact. Because of the parent corporation’s extensive control over its subsidiaiy in this case, we hold that the grant of summary judgment must be reversed. We reject the three other claims raised by Coleman Company, Inc.
Summary of Background Facts
Corporate Entities. This case involves several corporations. They are Coleman Company, Inc.; Coleman Recreational Vehicles, Inc.; Coleman Holdings, Fleetwood Enterprises, Inc.; Fleetwood Folding Trailers, Inc.; Coleman Company, a Delaware corporation; and Consolidated Leisure Industries, L.L.C. Their involvement in the case follows.
The Coleman Company, Inc., is a Kansas corporation (hereafter referred to as Coleman/KS). For some time it had manufactured and sold recreational vehicles such as pop-up tent campers. Anticipating a sale of its recreational vehicle division, in July 1989 it created Coleman Recreational Vehicles, Inc., a Delaware corporation (hereafter referred to as CRVI). CRVI received all assets and liabilities of Coleman/KS recreational division. Then, Coleman/KS transferred its capital stock in CRVI to Coleman Holdings, Inc. (hereafter referred to as Coleman Holdings). Thus, Coleman Holdings owned all of the outstanding stock of CRVI.
Coleman Holdings agreed to sell all of its capital stock in CRVI to Fleetwood Enterprises, Inc., a Delaware corporation (hereafter referred to as FEI) in December 1989. On December 7,1989, the parties signed a contract they referred to as the 1989 Stock Purchase Agreement. After the sale, CRVI changed its name to Fleet-wood Folding Trailers, Inc. (hereafter referred to as FFT). In 1992, Coleman/KS and Coleman Holdings assigned all assets and liabilities to the Coleman Company, a Delaware corporation (hereafter referred to as Coleman).
Some Important Clauses in the 1989 Stock Purchase Agreement
“5.11 Covenant Not to Compete.
“(a) . . . [A]s an inducement for [FEI] to enter into this Agreement, [Coleman/KS and Coleman Holdings] agree that for a period of three years after Closing, neither [Coleman/KS and Coleman Holdings] or any of their Affiliates shall, without [FEI’s] prior written consent, directly or indirectly, (i) own, manage or operate, or join, control or participate in the ownership, management, or operation of, any business which sells products of the type manufactured and sold by [CRVI] on the Closing Date in the United States. Notwithstanding the foregoing, nothing contained herein shall restrict [Coleman/KS and Coleman Holdings] or any of their Affiliates from (i) purchasing or making any other investment in any Person which competes with the Business [by CRVI] or does any of the things otherwise prohibited by the preceding sentence through one or more subsidiaries or (ii) purchasing any interest in any Person if, after such purchase, such Person will not be an Affiliate of any of [Coleman/KS and Coleman Holdings], so long as in any such case such Person does not use the Coleman Name or Coleman Logo.
“6.07 Shared Rights.
“(b) Notwithstanding any other provision hereof, with respect to (i) the name ‘Coleman’ and the registered trademark Coleman (together, the ‘Coleman Name’), and (ii) the registered trademarks Coleman in Parallelogram and Coleman in Parallelogram with Lantern Logo (together, the ‘Coleman Logo’), nothing in this Agreement shall be construed as granting [FEI] or [CRVI] any rights to the Coleman Name or the Coleman Logo at common law or otherwise except as provided in the Trademark Licenses [Agreements] annexed as Exhibits A-l
. . . and the Consent to Use and Register Agreement annexed as Exhibit A-3.
“6.12 Certain Trademark Covenants. [The Negative Covenant.]
“Prior to the Closing, [Coleman/KS and Coleman Holdings] will cause [CRVI] to apply to register the trademark ‘Columbia’ in the United States for recreational vehicles. On or prior to the Closing Date, [Coleman/KS and Coleman Holdings] will assign, or will cause one or more of their Affiliates to assign, to [CRVI] all right, title and interest of [Coleman/KS and Coleman Holdings] or such Affiliates in any trademark registrations or applications for the use of tire name ‘Columbia’ in connection with tents and recreational vehicles, including, without limitation, all of Outdoor Products’ right, title and interest in U.S. Trademark Registration No. 1,303,764 (‘COLUMBIA’). From and after the Closing, [Coleman/KS and Coleman Holdings] will refrain from any use of the trademark registration ‘Coleman’ in connection with recreational vehicles, except as otherwise contemplated hereby or on products currently sold by Coleman or any of its Affiliates as accessories for recreational vehicles.” (Emphasis added.)
Two Ancillary Contracts. On December 29, 1989, Coleman/KS and CRVI signed the Consent to Use and Register Agreement and then the Trademark License Agreement (hereafter referred to as the 1989 Trademark License Agreement). Both of these were license-related agreements, listed as exhibits to the 1989 Stock Purchase Agreement. FEI served only as CRVI’s guarantor to both agreements and agreed to cause CRVI to abide by the terms of both agreements.
First, the Consent to Use and Register Agreement described the parties’ rights and duties concerning the Columbia trademark. Second, the 1989 Trademark License Agreement, granted CRVI a nonexclusive royalty free license permitting use of Coleman’s trademarks for 5 years. CRVI’s intent in entering these agreements was to license its products under Coleman’s trademarks for a limited period of time and then shift to manufacturing and selling recreational vehicles under a new Columbia Parallelogram Trademark, which resembled the Coleman Logo.
1994, 1997, and 2000 Contract Extensions. Prior to the expiration of the 1989 Trademark License Agreement, Coleman and FFT negotiated the continued use of Coleman’s trademarks. In 1994, Coleman and FFT executed a Merchandise License Agreement (called the 1994 Trademark License Agreement), which licensed Coleman’s trademarks to FFT in exchange for royalties. This agreement did not name FEI as a party or require FEI to remain FFT’s guarantor. The agreement, however, included the following relevant provisions:
“11.0. Effect of Termination or Expiration.
“11.2 It shall not be a violation of any right of [FFT] if Coleman should at any time during the Term of this Agreement enter into negotiations with another to license use of the Licensed Trademarks within the Territory, provided that it is contemplated that such prospective license shall commence after termination or expiration of the license granted under this Agreement.”
After amending the 1994 Trademark Agreement to extend its expiration term, Coleman renewed the license to its trademarks to FFT in 1997 and 2000, executing separate agreements (1997 Trademark License Agreement; 2000 Trademark License Agreement) with FFT. Both agreements also provided the provision that upon the termination of the Trademark License Agreements with FFT, Coleman retained the right to license its trademarks to other manufacturers.
Business relations between the companies broke down in 2003 when Coleman ended its relationship with FFT, alleging that FFT failed to remedy its breaches to the 2000 Trademark License Agreement. As a result, Coleman made a license agreement with Consolidated Leisure Industries, L.L.C., doing business as Coachmen RV Group (hereafter referred to as Coachmen) in January 2004. In that agreement, Coleman licensed its trademarks for Coachmen to use in connection with recreational vehicles. This led to legal action.
District Court Lawsuit
Requesting injunctive relief, FEI filed a petition in Sedgwick District Court, claiming that Coleman had breached paragraph 6.12 (the Negative Covenant) of the 1989 Stock Purchase Agreement. Granting summary judgment, the district court ruled in favor of FEI, holding that Coleman had indeed breached the Negative Covenant when it entered into a license agreement with Coachmen. The court then permanently enjoined Coleman from using or licensing its trademarks to persons or entities engaged in the recreational vehicle industry.
At the summary judgment hearing, both parties agreed that the 1989 agreements were unambiguous. The dispute centered on the Negative Covenant’s legal effect. After examining both arguments, the court ruled in favor of FEI, holding that FEI was a party only to the 1989 Stock Purchase Agreement and, therefore, Coleman remained bound to those terms, which then were breached when Coleman licensed its trademarks to Coachmen.
In this appeal Coleman makes four general claims.
• Incorrect Interpretation. In three ways, the district court made an erroneous interpretation of the Negative Covenant.
• Release. FEI’s conduct released Coleman from complying with the Negative Covenant.
• Estoppel. The doctrine of estoppel prevents FEI from asserting its rights under the Negative Covenant.
• Alter Ego. FFT was tire alter ego of FEI and therefore the contract was binding on FEI.
Choice of Law and Appellate Review of Summary Judgment
Paragraph 13.06 of the 1989 Stock Purchase Agreement states that any interpretation of the agreement must be made in accordance with New York law. Similarly, paragraph 17 of the Consent to Use and Register Agreement and paragraph 8.1 of the 1989 Trademark License Agreement, by incorporating paragraph 13.06 of the 1989 Stock Purchase Agreement into its agreement, established New York as the governing jurisdiction. Both parties have agreed that Kansas law is the same as New York law on all points relevant to this case. Therefore, there is no choice of law problem here. This court will use Kansas law, unless other cases need to be used.
Moving on to the rules of summary judgment, it is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the parly against whom tire ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to estab lish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Furthermore, in cases where there are undisputed facts, appellate review of the district court’s grant of summary judgment is de novo. Botkin v. Security State Bank, 281 Kan. 243, 248, 130 P.3d 92 (2006).
In its summary judgment order, the district court ruled that FEI was only a party to the 1989 Stock Purchase Agreement. Therefore, the district court held that
“a straight-forward reading of the entire 1989 Stock Purchase [Agreement in conjunction with all ancillary agreements leads to one reasonable interpretation: Coleman plainly agreed to forego use of the Coleman trademark perpetually when it sold [CRVI] to FEI. Nothing in the 1989 documents can reasonably be read as reserving to Coleman, the right to resume use of the Coleman name in the RV industry after five years.”
We now review Coleman’s arguments in order.
Incorrect Interpretation
Coleman claims that the district court’s interpretation of the Negative Covenant was incorrect for three reasons. First, Coleman argues that the district court should have interpreted the Negative Covenant from both the 1989 Stock Purchase and Trademark License Agreements together because they were part of the same series of transactions concerning its right to use and license its trademarks in the recreational vehicle industry. Second, Coleman contends that the district court should not have severed the provisions of the 1989 Stock Purchase Agreement that were expressly integrated and merged into the 1989 Trademark License Agreement between Coleman and FFT. Third, Coleman asserts that the Negative Covenant intended to prevent only the Coleman Logo from being used in the recreational vehicle industry because of its similarity to the Columbia Parallelogram Trademark. We examine Coleman’s claims in that order.
Several contracts to be read together. Our law concerning multiple agreements is both robust and practical. “A court may ascertain the existence and terms of an agreement from a combination of written instruments and the acts of the parties in connection therewith.” Ed Bozarth Chevrolet, Inc. v. Black, 32 Kan. App. 2d 874, 880, 96 P.3d 272 (2003). Furthermore, “documents which are executed at different times, but in the course of the same transaction concerning the same subject matter, will be construed together to determine the intent of the parties to the contract.” Parsons v. Biscayne Valley Investors Ltd., 23 Kan. App. 2d 718, 723, 935 P.2d 218 (1997).
We take this rule to mean that this court may only interpret the Negative Covenant from the 1989 Trademark License Agreement in combination with the 1989 Stock Purchase Agreement if it is established that FEI and CRVI were the same parties to both agreements.
But the parties to the 1989 Stock Purchase Agreement were Coleman and FEI, with CRVI being the entity to be purchased. Accordingly, CRVI cannot be a party to the 1989 Stock Purchase Agreement. Therefore, Coleman’s argument must rely upon whether FEI can be construed to be a party to the 1989 Trademark License Agreement, an ancillary contract signed on the same day.
The 1989 Trademark License Agreement did not name FEI as a party to the agreement. In addition, FEI was described in the contract as CRVI’s guarantor. That fact does not make FEI a party to that agreement:
“The law of guaranty is a part of the law of contracts; a guaranty is a type or kind of contract. For a guaranty there must be at least three parties: a guarantor, a creditor (the individual to whom tire promise is made), and a debtor. The guaranty is an obligation collateral to another contractual duty to perform. The contract of the guarantor is a separate contract. It is in the nature of a warranty by the guarantor that the thing guaranteed to be accomplished by the principal shall be done, and is not an engagement jointly with the principal to do the act. [Citation omitted.]” (Emphasis added.) Iola State Bank v. Biggs, 233 Kan. 450, 452-53, 662 P.2d 563 (1983).
Because FEI’s role in the 1989 Trademark License Agreement was limited to being a guarantor, FEI cannot be construed as a party to that agreement. Furthermore, Coleman has not demonstrated otherwise. They have brought forth no evidence that shows CRVI committed any breach of the contract that would require FEI’s active participation in the 1989 Trademark License Agreement in their capacity as guarantor, standing in CRVI’s shoes. Consequently, this court is limited to interpreting the Negative Covenant from the agreement in which both Coleman and FEI were parties, the 1989 Stock Purchase Agreement.
Merger of the two agreements. Alternatively, Coleman requests this court to apply the merger doctrine and interpret the Negative Covenant from only the 1989 Trademark License Agreement. In Coleman’s words:
“The 1989 Trademark License [Agreement] delivered at closing was the last iteration of the agreement of the parties and it expressly integrated and merged the [1989] Stock Purchase Agreement into the 1989 Trademark License Agreement as part of the ‘entire agreement’ of the parties on its subject matter. . . . Because the Stock Purchase Agreement provisions were merged into the License Agreement, it did not have a separate existence or separate effect as a stand-alone agreement, and it could not spring back to life as a separate, stand-alone years later when the last superseding License Agreement terminated in 2003.” (Emphasis added.)
Determining the applicability of the doctrine of merger involves mixed questions of law and fact. The interpretation and effect of legal instruments are questions of law. However, since the merger doctrine is based on the intention of the parties, the determination of the intent of the parties is a question of fact, found from the contracts as well as the facts and circumstances surrounding their execution. Avien Corp. v. First Nat’l Oil, Inc., 32 Kan. App. 2d 106, 111, 79 P.3d 223 (2003).
Implicit in these rules is the requirement that the final expression of the parties concerns (1) the same parties and (2) the same subject matter. See 17A C.J.S., Contracts § 416, p. 499 (that “[Wjhen two contracts are in conflict, the legal effect of a subsequent contract made by the same parties and covering the same subject matter, but containing inconsistent terms, is to rescind the earlier contract. The subsequent contract, then, becomes a substi tute for the earlier contract and is the only agreement between the parties upon that subject.”).
We have already determined that FEI was not a party to the 1989 Trademark License Agreement. Therefore, contrary to Coleman’s argument, the 1989 Trademark License Agreement cannot be merged with the 1989 Stock Purchase Agreement. Because there are different parties to the contracts, that means the contracts cannot merge.
Only the Coleman Logo. Coleman challenges which trademarks it should be enjoined from using in the recreational vehicle industry. It argues that the parties intended a “FEI/FFT transition to a ‘Columbia’ trademark similar in appearance to the specific trademarks licensed from Coleman, and Coleman would cease using in the RV industry those specific trademarks.” (Emphasis added.)
In response, FEI contends that the parties crafted the Negative Covenant to permanently remove Coleman as a competitive force in the recreational vehicle market. This removal, FEI asserts, included the Coleman Name.
Examining the 1989 Stock Purchase Agreement in its entirety, it appears to us that the parties intended for the “trademark registration ‘Coleman’ ” to encompass the Coleman Name. Paragraph 5.11(a) of the 1989 Stock Purchase Agreement states that the covenant not to compete is included as “an inducement for [FEI] to enter into [the 1989 Stock Purchase Agreement].” After 3 years, the parties agreed that Coleman could compete in the recreational vehicle industry through a third party, “so long as in any such case such Person does not use the Coleman Name or Coleman Logo.” (Emphasis added.)
Paragraph 6.07(b) of the agreement defines the “Coleman Name” and “Coleman Logo” as “(i) the name ‘Coleman’ and tire registered trademark Coleman (together, the ‘Coleman name’), and (ii) the registered trademarks Coleman in Parallelogram and Coleman in Parallelogram with Lantern Logo (together, the ‘Coleman Logo’).” (Emphasis added.)
The Negative Covenant reinforces the paragraph 5.11(a) covenant by stating that after closing, Coleman will refrain from “any use of the trademark registration ‘Coleman’ in connection with recreational vehicles, except as otherwise contemplated hereby.” (Emphasis added.) The parties have contemplated this exception in paragraph 6.07(b), which refers to CRVI/FFT’s licensing of the Coleman Trademarks.
Therefore, examining the provisions in the 1989 Stock Purchase Agreement together, the Negative Covenant not only enjoins Coleman from using the Coleman Parallelogram, with or without the Lantern Logo, but also enjoins Coleman from licensing the Coleman Name to third parties for use in the recreational vehicle industry. We conclude that there was no misinterpretation of the agreement by the district court as Coleman contends.
Release by Partial Performance
Coleman argues that FEI’s active participation in the 1994 Trademark License Agreement constituted a mutual agreement to terminate the Negative Covenant.
Our Kansas courts have limited the application of the doctrine of partial performance only to contracts involving land. See Wells v. State Bank of Kingman, 24 Kan. App. 2d 394, 396, 945 P.2d 418 (1997). Therefore, Coleman analyzes this doctrine under the laws of New York. “Where the parties to a contract have entered an agreement that incorporates a choice of law provision, Kansas courts generally effectuate the law chosen by the parties to control the agreement.” Brenner v. Oppenheimer & Co., 273 Kan. 525, 539, 44 P.3d 364 (2002). Therefore, since the parties in the 1989 Stock Purchase Agreement adopted New York law as its governing authority, we analyze this issue under the laws of the New York.
New York General Obligations Law § 15-301(1) (McKinney 2001) states:
“A written agreement or other written agreement which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.” (Emphasis added.)
However, “[p]artial performance of an oral agreement to modify a written contract, if unequivocally referable to the modification, avoids the statutory requirement of a writing.” (Emphasis added.) Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 341, 397 N.Y.S.2d 922, 366 N.E.2d 1279 (1977). In other words, “the court may consider not only past oral exchanges, but also the conduct of the parties. But only if the partial performance be unequivocally referable to the oral modification is the requirement of a writing under section 15-301 avoided.” (Emphasis added.) 42 N.Y.2d at 343-44.
In this case, Coleman alleges that FEI’s participation in FFT’s negotiations for the 1994 Trademark License Agreement constituted a mutual agreement to terminate the Negative Covenant. Here is the information from the record that specifically refers to the Negative Covenant:
• October 23,1992, Letter from Pat Scanlon, Division General Manager, on FFT’s letterhead.
“Based on our purchase and trademark agreements Coleman cannot license the Coleman trademark to another folding trailer manufacturer. If [FFT] discontinues the use of the Coleman mark it will be lost forever— benefiting neither of our companies.”
• Deposition of Forrest D. Theobald taken on behalf of Coleman.
“Q: And are you aware of anything, any subsequent agreement to which FEI and Coleman are a party that would have authorized Coleman, in light of the negative covenant that you indicated you believe exists, would have authorized Coleman to extend a continued license to FFT after the limited term license expired?
“A: Yeah. There [were] subsequent licensing agreements.
“Q: And you’re saying that it is the subsequent licensing agreements that gave Coleman the right to continue to license its name to FFT?
“A: Well, what I’m saying is that sometime subsequent to the stock sale agreement, Coleman, Coleman companies and [FEI] recognized that it would be in the best interests of those parties to continue the licensing agreement.”
• Transcript of Temporary Injunction, Larry Marsh’s testimony.
“Q: And as part of your attempt to negotiate it, Mr. Scanlon talked about the fact that you could simply just start using the Columbia name — and, in fact, in paragraph six, he says that if you guys did that, that would take the Coleman name out of the market place forever; right?
“A: Yes.
“Q: And given that negotiation point that Fleetwood had, Fleetwood and Coleman entered into a new agreement that replaced the agreements that were entered into in 1989, that instead gave Fleetwood the continued right to use the Coleman name, something it had not negotiated for in 1989; right?
“A: I can’t say that they replaced other agreements. They were new agreements. But I can’t sit here and say that we believed that they would replace things that were agreed to in the past. The fact that — that Coleman could license the brand to someone else would certainly weaken our position. Why would there be of any value to use to enter into an agreement where we didn’t have exclusive rights to the Coleman name?”
• March 29, 1994, Letter from Glenn F. Kummer, President, on FEI’s letterhead.
“As the period of five years is near completion, I would like to ask you to consider an extension of our use of the Coleman name as we feel it would benefit both companies.
“Should Fleetwood continue with the Coleman name on our folding trailers, The Coleman Company would recognize the following benefits.
“1. Access to the RV Industry - the purchase of the folding trailer division precludes the Coleman Company from entering this business segment.
“Pat Scanlon, our Folding Trailer Division General Manager, and Larry Sanford, have had an initial telephone discussion regarding the possibility of continuing with the name. I ask that you encourage tírese discussions and help both our companies find ways to continue this mutually beneficial relationship.”
• Deposition of Glenn Kummer, FEI’s former President and member of its board of directors.
“Q: It’s fair to say, sir, that given the content of this letter, the context of the letter and the form of the letter in March of 1994, you were intervening in your capacity as president of [FEI] and asking the chairman and CEO of Coleman Company to figure out a way to help both your companies continue the beneficial relationship.
“A: The beneficial relationship, sure. That we would be able to continue to use the Coleman name.
“Q: And in fact, subsequent to your letter within about two months of your letter, a new agreement was reached between your two companies, right?
“A: We were then able to continue to use the name under the new agreement, yeah.”
We reiterate that FEI was not a named party to the 1994 Trademark License Agreement. Furthermore, the 1994 Trademark License Agreement did not make any references to the Negative Covenant or the 1989 Stock Purchase Agreement. Additionally, the 1994 Trademark License Agreement contained a merger clause.
These facts do not lead us to conclude that FEI consented to modifying the Negative Covenant. Rather, the evidence demonstrates that FEI reminded Coleman of the existence of the Negative Covenant and the benefit Coleman would receive if it renewed its license of trademarks with FFT. Therefore, since FEI’s conduct did not unequivocally refer to any modification of the Negative Covenant, we reject Coleman’s request to apply the doctrine of partial performance. In other words, in the absence of any writing, FEI did not terminate the Negative Covenant.
Estoppel
Coleman argues that FEI is precluded from asserting any rights under the Negative Covenant. First, Coleman claims that FEI’s officers, in their capacity as FFT’s officers, allowed Coleman to believe that clauses such as paragraph 11.2 of the 1994 Trademark License Agreement were effective. Second, Coleman alleges that FEI acquiesced to Coleman’s violation of the Negative Covenant by failing to object to Coleman’s renewed license of its trademarks to FFT after the expiration of the 1989 Trademark License Agreement.
Standard of Review for Equitable Estoppel. Here, Coleman states that this court’s standard of review is de novo because the district court denied this issue on summary judgment. But, since there are no material facts in dispute, the district court has discretion whether to invoke the equitable estoppel doctrine. Therefore, appellate review concerning this appeal is by an abuse of discretion. See Shaffer v. City of Topeka, 30 Kan. App. 2d 1232, 1236, 57 P.3d 35 (2002) (“The application of an equitable doctrine [including the doctrine of equitable estoppel] rests within the sound discretion of the district court.”); Robinson v. Shah, 23 Kan. App. 2d 812, 829, 936 P.2d 784 (1997) (“Equitable estoppel does not depend upon legislative authority; it is an inherent power of the courts used to punish unconscionable conduct and estop a guilty party from taking advantage of his or her fraudulent conduct.”); Toshiba Master Lease, Ltd. v. Ottawa University, 23 Kan. App. 2d 129, 135, 927 P.2d 967 (1996) (“Kansas law is very clear — equitable estoppel does not arise out of contract but is based upon concepts of morality and justice.”).
Rules of Estoppel. Each case where the doctrine of equitable estoppel is raised as a defense must depend on its own facts. Toshiba Master Lease, 23 Kan. App. 2d at 135. “ ‘The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon.’ [Citation omitted.]” Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources, 272 Kan. 265, 276, 32 P.3d 1146 (2001).
A claim of equitable estoppel will fail unless a party can prove (1) he or she was induced to believe certain facts existed by another party’s acts, representations, admissions, or silence when the other party had a duty to speak, (2) he or she relied and acted upon such belief, and (3) he or she would now be prejudiced if the other party were allowed to deny the existence of such facts. Those facts cannot be ambiguous or subject to more than one construction. Rockers v. Kansas Turnpike Authority, 268 Kan. 110, 116, 991 P.2d 889 (1999). Furthermore, if any essential element thereof is lacking or is not satisfactorily proved, there can be no equitable estoppel. Gillespie v. Seymour, 250 Kan. 123, 129-30, 823 P.2d 782 (1991).
In this case, the district court denied Coleman’s claim for equitable estoppel based on the following determinations. First, tire district court determined that FEI’s initial position in the negotiation for the extended licensing arrangement with Coleman was that Coleman only had the right to license its trademarks to FFT. From that determination, the district court concluded that “FEI had never taken a contrary position or entered into any agreement modifying that stance.” Second, the district court noted that even under the assumption that the “elements of equitable estoppel were met, Coleman [has been] unable to show inequitable consequences, prejudice or detrimental reliance.”
Furthermore, the district court ruled that Coleman failed to provide evidence to support that FEI made any false representations or concealed material facts: (1) Coleman knew FEI and FFT were separate corporations; (2) FEI had asserted to Coleman that Coleman did not possess the right to license its trademarks to any company in the recreational vehicle industry other than FFT; and (3) “Coleman had the means to verify FEI’s position on the issue by including FEI in the written agreements with FFT.”
Therefore, tire district court held:
“In the absence of a false or misleading affirmative representation or concealment, Coleman has no facts which warrant invoking an equitable doctrine to modify its written agreements. Coleman cannot show that it changed its position to its irreversible detriment in reliance on FEI’s failure to object to the licensing agreement. Coleman’s position with respect to licensing another company in the [recreational vehicle industry] is tire same now as it would have been had it not licensed FFT in 1994, 1997, or 2000.”
Judicial discretion is abused when no reasonable person would take the view adopted by the district court. Shaffer, 30 Kan. App. 2d at 1236. Furthermore, tire party asserting the trial court abused its discretion has the burden of proving such abuse of discretion. Board of Reno County Comm’rs v. Akins, 271 Kan. 192, 195, 21 P.3d 535 (2001).
Here, the district court’s findings were reasonable. Furthermore, FEI could not have acquiesced to a violation of the Negative Covenant when Coleman relicensed its trademarks to FFT because, under paragraph 6.07(b), the parties had contemplated the licensing of Coleman’s trademarks to FFT to be the exception to the Negative Covenant. In addition, under paragraph 13.02 of the 1989 Stock Purchase Agreement, Coleman was aware that any failure by FEI to insist upon strict compliance with the agreement’s covenants did not operate as a waiver or estoppel. It follows then that Coleman has failed to meet its burden that the district court abused its discretion when it refused to apply the doctrine of eq uitable estoppel. Accordingly, no abuse of discretion has occurred here.
Alter Ego
In concise terms, courts will ignore corporate names to counter injustice in cases where the parent corporation exerted such dominion and control over its subsidiaries that they were not separate and distinct corporate entities but one and the same under an alter ego analysis. See Hoffman v. United Telecommunications, Inc., 575 F. Supp. 1463, 1478 (D. Kan. 1983). The determination of whether a subsidiary corporation is an instrumentality of the parent is a question of fact. See Doughty v. CSX Transportation, Inc., 258 Kan. 493, 498, 905 P.2d 106 (1995), (citing Schmid v. Roehm GmbH, 544 F. Supp. 272, 275 [D. Kan. 1982]).
Within a subsidiary corporation context, which is pertinent here, our Supreme Court in Doughty at 499, listed 10 factors that should be considered when deciding if the alter ego doctrine should apply:
1. The parent corporation owns all or a majority of the capital stock of the subsidiary;
2. The corporations have common directors or officers;
3. The parent corporation finances the subsidiary;
4. The parent corporation subscribed to all of the capital stock of the subsidiary or otherwise caused its incorporation;
5. The subsidiary has grossly inadequate capital;
6. The parent corporation pays the salaries or expenses or losses of the subsidiary;
7. The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation;
8. In the papers of the parent corporation and in the statements of its officers, the subsidiary is referred to as such or as a department or division;
9. The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation; and
10.The formal legal requirements of the subsidiary as a separate and independent corporation are not observed.
Coleman argues that FFT was an alter ego of FEI. Coleman contends that the district court erred in ruling that FEI was not bound to the Trademark License Agreements made by FFT. Citing the alter ego theory, Coleman asserts that FEI, as a parent corporation, authorized FFT, as its subsidiary, to enter into the 1994, 1997, and 2000 Trademark License Agreements.
A review of the large record in this case reveals that many of the 10 factors listed in Doughty can be answered yes and some cannot be answered because either the record is unclear or silent on the point as follows: (1) FEI owns all of FFT; (2) The two corporations have common directors and officers (although it is not clear that all are the same); (3) Finances appear to flow from FEI to FFT, with FFT liabilities insured by FEI; (4) The parent corporation, FEI, bought all of CRVI assets and liabilities and then renamed the corporation FFT; (5) The adequacy of FFT capital is not clear in the record; (6) FEI is responsible for losses of FFT; (7) The extent of FFT’s assets is not clear, but whatever it has is owned by FEI; (8) FEI refers to FFT as a division, i.e., “RV Group,” in press releases; (9) The directors of FFT have acted in accord with FEI directions when negotiating the terms of the contracts here; (10) The formal legal requirements for creation of FFT have been met.
These answers lead this court to conclude that summary judgment on this point should not have been granted. Whether FFT is the alter ego of FEI or vice versa is a question of fact. We can see the injustice perceived by Coleman. In its view, it negotiated with a parent corporation, FEI, a limited restraint from trademark licensure as an inducement to enter the 1989 contract. And then, over 15 years, with new negotiations and new contracts with a wholly owned subsidiary of that company, FFT and Coleman reached three agreements for trademark use in exchange for royalty payments.
Now Coleman is told by the parent corporation that its subsidiary was acting on its own and not as the alter ego of FEI, and FEI insists that Coleman’s agreement to refrain from licensure of its trademarks is still enforceable. This seems especially inequitable because each of the extension contracts had express language that permitted Coleman to negotiate with others for the licensure of its name and logo, even in the same trade area, as long as any such licensure started after the expiration date of the extension (see paragraph 11.2 of the 1994 Trademark Licensure Agreement for example).
The facts may prove the opposite. A trial on the question will settle the matter. We therefore remand the case to the district court for further proceedings on the alter ego issue.
Affirmed in part, reversed in part, and remanded with directions. | [
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Green, J.:
Kevin Burton appeals his conviction for possession of marijuana with a previous conviction. The principal issue before us is whether the trial court erred in denying Burton s motion to suppress evidence. In his appeal, Burton raises two issues: (1) whether the police officer feared for his safety, justifying a pat-down search of Burton; and (2) whether the trial court erred in scoring Burton’s criminal history. Because we determine that the officer was not justified in making a pat-down search of Burton, we reverse and remand with directions to grant Burton’s motion to suppress evidence. We need not consider Burton’s challenge to his criminal history based on our decision to reverse this matter.
Officer Jessie Cornwell, a narcotics and gang investigator, received a call at approximately 11:30 p.m. from dispatch concerning a disturbance at the Trail Motel in Wichita. Dispatch indicated that the disturbance involved a white woman and a black man wearing a gray sweatshirt and black vest. These two individuals were last seen walking east from the motel. Three to four minutes later, Cornwell saw two people matching the description given by dispatch walking just east of Broadway on Indianapolis, not far from the motel. Cornwell recognized the black male as Burton from prior experience. Cornwell stopped his patrol car to talk to Burton, while Cornwell’s partner talked to the female.
As Cornwell approached Burton, he asked Burton if he had any weapons on him and told him he was going to pat him down. While patting down Burton, Cornwell also asked Burton if he had anything illegal on him. Burton replied that he had a bag of weed in his pocket. Cornwell then asked Burton for consent to search his pocket. Burton consented, and Cornwell found a small bag containing a green botanical substance that Cornwell believed to be marijuana in Burton’s front pocket. As a result, Cornwell arrested Burton. At the jail, Cornwell read Burton his Miranda rights. See Miranda v. Arizona, 385 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). When Cornwell asked Burton whether he understood those rights, Burton spontaneously said, “The weed’s mine.” Cornwell then asked Burton if he could question him further, but Burton invoked his right not to answer any more questions.
The State later charged Burton with one count of possession of marijuana after a prior conviction in violation of K.S.A. 65-4162(a). Before trial, Burton moved to suppress his statements and the marijuana evidence. At the hearing on the motion to suppress, Burton argued that Cornwell did not have reasonable suspicion to conduct a Terry stop and that Cornwell’s investigation went outside the permissible scope of a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The trial court disagreed and denied the motion to suppress.
Burton and the State later entered into a bench trial stipulation. After a bench trial on stipulated facts, the trial court found Burton guilty of possession of marijuana after a prior conviction and ordered a presentence investigation (PSI) report.
The PSI report revealed that Burton had at least 39 prior convictions, placing him in a criminal history category of A. After overruling Burton’s challenge to his criminal history score, the trial court pronounced him guilty of possession of marijuana after a prior conviction in violation of K.S.A. 65-4162(a). The trial court later granted Burton’s motion for departure and sentenced him to 12 months’ probation, with assignment to a community corrections residential program. The court imposed an underlying 42-month prison term and 12 months’ postrelease supervision.
Did the District Comt Err in Denying Burtons Motion to Suppress?
The State has the burden of establishing the lawfulness of the search and seizure. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). Where, as here, the case was submitted on stipulated facts, the question of whether to grant or to deny a motion to suppress is a question of law subject to unlimited review. State v. Jones, 279 Kan. 71, 74, 106 P.3d 1 (2005).
Neither party disputes this case involved an investigatoiy stop governed by Terry, 392 U.S. 1, which permits stop and frisk searches under conditions codified in K.S.A. 22-2402 as follows:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until die completion of the questioning, at which time such officer shall either return it, if lawfuñy possessed, or arrest such person.”
Although Burton challenged the basis for Cornwell's investigatory stop and detention at the suppression hearing, Burton seems to concede on appeal that Cornwell had the requisite reasonable suspicion required by K.S.A. 22-2402(1) to conduct a limited Terry stop. Burton, however, argues that the trial court should have granted his motion to suppress for two reasons. First, Burton maintains that the record was insufficient to establish compliance with K.S.A. 22-2402(2), that is, the evidence failed to show that Corn-well reasonably suspected that his personal safety required a Terry frisk for weapons. Second, Burton asserts that Cornwell improperly transformed the encounter from a weapons search into a general exploratory search for evidence of criminal activity. As a result, Burton maintains that the marijuana evidence and his statements should have been suppressed as fruit of the poisonous tree.
The Frisk
During a Terry stop, an officer is allowed to frisk the person seized for weapons if the officer “reasonably suspects that [his or her] personal safety requires it.” K.S.A. 22-2402(2); see State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 (2006). This court considers an officer s reasonable suspicion in light of the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). Terry explains the nature of the suspicion that must be shown by the police:
“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations omitted.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation omitted.]” 392 U.S. at 27.
Burton argues that Cornwell’s testimony that he knew Burton from “ prior experience’ ” did not sufficiently establish reasonable suspicion to conduct a Terry frisk. The State responds that any potential error surrounding the patdown was harmless because no evidence was recovered from the patdown, but, nonetheless, the State maintains that the patdown was proper.
In support of his contention that Cornwell lacked reasonable suspicion to fear for his safety and, therefore, to frisk him for weapons, Burton cites to the following exchange between his counsel and Cornwell at the hearing on his motion to suppress:
“Q: Okay. So you approached Mr. Burton, you knew who he was and you started patting him down and asking him questions, is that correct?
“A: Yes.
"Q: At that point, you had no reason to fear for your safety, did you? Mr Burton was cordial?
“A: After I patted him down or before?
“Q: Before.
“A: Before?
“Q: Yes.
“A. I always do it for my safety before.
“Q: I’m asking you specifically with regard to this person.
“A: Yeah. I’m patting them down.
“Q: Sure. But do you have — did you observe anything that was threatening to you?
“A: He had on bulky clothing so I had no idea what he could have been having underneath his clothing or anything.
“Q: Did he display anything—
“A: He did not.
“Q: —in his actions?
“A: In plain view, no.
“Q: Was he threatening to you?
“A: I have — I didn’t know if he had any weapons or not. I was going to find out.”
Burton argues that Cornwell’s testimony indicates that he always pats down an individual for his safety. Thus, Burton maintains that Cornwell conducted an impermissible general, cursory search for weapons. Burton cites Ybarra v. Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), reh. denied 444 U.S. 1049 (1980), for the proposition that “[n]othing in Terry can be understood to allow a generalized ’cursory search for weapons’ [as the officers admittedly did in Ybarra’s case] or, indeed, any search whatever for anything but weapons.”
In conducting a Terry frisk, “the officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by [K.S.A. 22-2402(1)] which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search.” (Emphasis added.) State v. Potter, 246 Kan. 119, 122, 785 P.2d 989 (1990). Cornwell admittedly did not observe any conduct by Burton or the female that would have caused him to reasonably suspect a weapons frisk was necessary for his personal safety, and he had not yet conducted any limited interrogation of Burton concerning the disturbance.
To illustrate, near the scene of the reported disturbance, Corn-well saw Burton and a female walking just east of Broadway on Indianapolis. When Cornwell stopped them, he did not have any details about the disturbance or whether the disturbance involved any criminal activity. Moreover, the record of the dispatch indicated that the disturbance involved no injuries or weapons.
Although the trial court stated that the area of the disturbance was a high crime area, Cornwell failed to testify that the area was a high crime area. Significandy, the circumstances surrounding Cornwell’s previous experience with Burton was not developed during the suppression hearing. An officer’s previous encounter or experience with a suspect is often helpful in determining whether a frisk is necessary. For example, an officer’s previous knowledge about a suspect may bring to light that the suspect is wanted for other offenses or that the suspect has a record for violence or a mental disorder. Nevertheless, Cornwell did not state that his prior experience with Burton caused him to suspect that Burton was armed and dangerous.
In Terry, the Court stated that a frisk may be made only when the officer has “reason to believe that he is dealing with an armed and dangerous individual.” 392 U.S. at 27. Moreover, in Ybarra, 444 U.S. at 94, the Court stated that the narrow scope of the Terry doctrine “does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.” Here, Cornwell did not articulate any fear or concern for his safety. Moreover, Cornwell never developed a reasonable articulable suspicion that Burton was armed and dangerous. As a result, Cornwell was not justified in frisking Burton.
Nevertheless, the State argues that any potential error surrounding the pat-down search was harmless because no evidence was recovered from the pat-down search. The State contends that Cornwell was alerted to the marijuana not through the pat-down search, but by Burton’s response to Cornwell’s question of whether Burton had anything illegal on him.
There is no dispute that Cornwell asked Burton if he had anything illegal on him while he was conducting his Terry frisk for weapons. Cornwell testified that as he approached Burton, he did the following:
“First of all, I told him that I was going to pat him down. I started patting him down. While I’m patting him down — first of all, I ask if he has any weapons on him. I start patting him down. While I’m patting him down, I ask him if he has anything illegal on him.”
As stated earlier, an officer may conduct a pat-down search when the officer is justified in believing that the person is armed and dangerous to the officer or others. Terry, 392 U.S. at 24. Nevertheless, this protective search must be “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” 392 U.S. at 26; see Minnesota v. Dickerson, 508 U.S. 366, 373, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993); State v. Waddell, 14 Kan. App. 2d 129, 132-33, 784 P.2d 381 (1989). Here, during the pat-down search, Cornwell asked Burton if he had anything illegal on him. Burton stated that he had a bag of weed in his pocket. When Cornwell asked Burton for consent to remove the bag from his pocket, Burton consented.
In State v. Schmitter, 23 Kan. App. 2d 547, 557, 933 P.2d 762 (1977), this court, however, noted that such actions as previously mentioned by an officer “were clearly improper as Terry allows only for a pat-down for weapons, not evidence . . . .” Here, Corn-well’s inquiry about whether Burton had anything illegal on him transformed the encounter from a weapons search into an evidentiary probe. Terry, however, expressly refused to authorize this type of a general exploratory search for evidence of criminal activity.
Next, the Schmitter court considered whether Schmitter’s consent was tainted by the preceding illegal search. Citing United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994), the Schmitter court stated that “when the consent to search is preceded by a Fourth Amendment violation, the State, in addition to proving the voluntariness of the consent, must also establish a break in the causal connection between the illegality and the evidence thereby obtained.” 23 Kan. App. 2d at 556.
The Schmitter court held that where the request for consent was virtually simultaneous with the illegal pat-down search and there was no bréale in the activity between the pat-down search and the consent, the “consent was not voluntaiy as a matter of law, and the evidence should have been suppressed as fruit of the poisonous tree under Wong Sun [citation omitted].” 23 Kan. App. 2d at 557-58.
In this case, the State has not established any intervening circumstances which would serve to purge the taint of the illegal search. See also State v. Wilson, 30 Kan. App. 2d 100, 106-07, 39 P.3d 668, rev. denied 273 Kan. 1040 (2002) (The consent and illegal detention were too close in time for the consent to purge the taint of the illegal detention.). Therefore, the resulting statements and consent to search were not voluntarily given, and the evidence should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Reversed and remanded with directions. | [
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Malone, J.:
Robert Colt Prebble appeals the district court’s order denying him jail time credit. Prebble was held in the McPherson County jail for 231 days pending disposition of his felony case in that district. The issue is whether Prebble should be denied credit for the time he was held in the McPherson County jail because he had a detainer from another district during the time he was held in custody.
On July 14,2005, the Rice County District Court issued a felony arrest warrant for a theft allegedly committed by Prebble on or about July 1, 2005. Although the record is unclear, it also appears Prebble had outstanding warrants at that time from Nickerson and Hutchinson municipal courts.
On August 8, 2005, McPherson police responded to a domestic disturbance call involving Prebble. The police were aware of the Rice County felony warrant at the time they responded to the call. After locating Prebble, the police attempted to arrest him based on the Rice County warrant. Prebble did not cooperate, but he was eventually taken into custody, and the arrest warrant was returned to Rice County on that same date.
On August 16,2005, Prebble was charged in McPherson County District Court with obstructing official duty, a felony, and also with battery against a law enforcement officer and simple battery, both misdemeanors, arising from the domestic disturbance and from Prebble’s attempt to resist the arrest. Prebble remained in custody in the McPherson County jail pending his trial. Following a jury trial, Prebble was convicted of all three counts. The record does not reflect that Prebble was ever returned to Rice County to answer the felony theft charge, and his presentence investigation report indicated Prebble had a “detainer or other charges pending” at the time of his sentencing in McPherson County.
On March 27,2006, Prebble was sentenced to a controlling term of 16 months in prison. Prebble requested credit for the 231 days he had spent in the McPherson County jail pending disposition of his case. The district court inquired if Prebble was being held on any other charges, and the prosecutor informed the court about the Rice County detainer. The district court denied Prebble’s request for jail time credit and stated, “[T]he law in Kansas is simply if you’re held under more than one charge from different counties, that it is not to be credited . . . .” Prebble timely appeals.
The only issue is whether the district court erred in denying Prebble credit for the time he was held in the McPherson County jail pending disposition of his case. The issue involves statutory interpretation. The interpretation of a statute is a question of law over which this court has unlimited review, and this court is not bound by the district court’s interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
K.S.A. 2006 Supp. 21-4614 addresses jail time credit and provides in relevant part:
“In any criminal action in which the defendant is convicted upon a plea of guilty or no contest or trial by court or jury or upon completion of an appeal, the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.”
This statute makes it clear that a defendant in a criminal case is entitled to credit for “the time which the defendant has spent incarcerated pending disposition of the defendant’s case.” Confusion arises, however, when the defendant is incarcerated for more than one case at the same time, especially when the separate cases are pending in more than one district. Both Prebble and the State cite four cases interpreting how K.S.A. 2006 Supp. 21-4614 should be applied when the defendant has separate cases pending in different districts.
In Campbell v. State, 223 Kan. 528, 575 P.2d 524 (1978), the defendant was charged in Reno County with two felonies but was arrested in Barton County on unrelated felony charges. The defendant remained in the Barton County jail until he was sentenced in that case, and at sentencing he received credit for the time spent in jail pending disposition of the case. The defendant was then transported to Reno County where he was convicted of the Reno County charges. At sentencing in Reno County, the defendant requested credit for the time he was held in the Barton County jail and argued that the Reno County charges were pending against him during the time he was held in Barton County. The district court denied the defendant’s request.
On appeal, the court held that 21-4614 requires a sentencing court to give the defendant credit for each day spent in jail solely on account of the offense for which the defendant is being sentenced. However, the defendant is not entitled to credit on a sentence for time which the defendant has spent in jail on other charges. Under the facts of the case, the court reasoned that the time the defendant had spent in the Barton County jail was not solely on account of the Reno County charges for which he was being sentenced. Accordingly, the defendant was not entitled to credit in the Reno County case for the time spent in the Barton County jail. 223 Kan. at 530-31.
In State v. Calderon, 233 Kan. 87, 661 P.2d 781 (1983), the defendant abducted an 11-year-old boy in Riley County and drove to a farm located in Pottawatomie County where the defendant sodomized the boy. The defendant was subsequently charged in Riley County with kidnapping and in Pottawatomie County with aggravated criminal sodomy. The defendant was held in the Riley County jail for approximately 3 months pending disposition of the kidnapping charge, and he ultimately pled no contest and was sentenced to prison. The following year, the defendant was returned from the state penitentiary to Pottawatomie County to answer the charge of aggravated criminal sodomy. He was ultimately tried and convicted. At sentencing, the defendant requested credit for the 3 months he had spent in the Riley County jail, but the district court denied the jail time credit.
On appeal, the court held the provisions of 21-4614 are mandatory and require a sentencing court to give the defendant credit for time spent in jail solely on account of the offense for which the defendant is being sentenced. Under the facts of the case, the court reasoned that the defendant had not been held in the Riley County jail solely on account of the Pottawatomie County charge, and therefore the defendant was not entitled to credit in the Pottawatomie County case for the time he had spent in the Riley county jail. 233 Kan. at 97-98.
In State v. Taylor, 24 Kan. App. 2d 80, 941 P.2d 954, rev. denied 262 Kan. 969 (1997), the defendant was charged in Harvey County, Reno County, and Sedgwick County with indecent liberties with a child involving the same child. The defendant was sentenced to prison in the Harvey and Reno County cases and received jail time credit. He was then transferred to Sedgwick County where he pled guilty and received a prison sentence. On appeal from the Sedgwick County sentence, the defendant argued he should receive credit for the time he had served in Harvey and Reno County because the charges were closely related. This court held the time the defendant had spent in jail in other counties could not be applied to the Sedgwick County sentence because the defendant had not been held in the other counties solely on account of the Sedgwick County charge. However, the court went on to state that the defendant was entitled to credit in the Reno and Harvey County cases for the time he was incarcerated in those respective jails. The court concluded: “A defendant incarcerated on account of multiple criminal charges filed in separate counties should receive jail time credit only against the sentence for the charges filed in the county in which he or she is held.” 24 Kan. App. 2d 80, Syl. ¶ 2.
Finally, in State v. Hartman, 27 Kan. App. 2d 98, 998 P.2d 128 (2000), the defendant sought jail time credit in two Sedgwick County cases of driving under the influence (DUI) for time he had served in the Cowley County jail on a probation violation in an unrelated case. The DUI charges were pending at the time the defendant was in the Cowley County jail, but the defendant was not transferred to Sedgwick County until he had been released from the Cowley County incarceration. This court denied the defendant’s request for jail time credit in the Sedgwick County cases for the time the defendant had spent in the Cowley County jail. Citing Calderon, this court stated: “Jail time credit is earned under K.S.A. 21-4614 only for time spent in jail solely on the account of the offense for which the defendant is being sentenced.” 27 Kan. App. 2d at 103.
Based upon these cases, the State argues that under Kansas law, the defendant in a criminal case is entitled to jail credit only for time the defendant is held in custody solely on account of the charge for which the defendant is being sentenced. The State points out that during the 231 days Prebble was held in the McPherson County jail, he was also being detained on the Rice County charge. Therefore, according to the State, Prebble should receive no credit for the time he was held in the McPherson County jail pending disposition of his case. The district court adopted this reasoning and refused to grant Prebble any jail time credit.
We disagree. The time Prebble served in the McPherson County jail was solely on account of the charges pending against him in McPherson County. Otherwise, Prebble either would have been released or transported to Rice County to face the charge pending against him there. Under the State’s reasoning, Prebble would never receive credit for the 231 days he was held in the McPherson County jail because he had a detainer or warrant pending from more fhan one district at the time he was being held in McPherson County.
Campbell, Calderon, Taylor, and Hartman can all be distinguished from Prebble’s case. In each of these cases, the defendant requested credit at sentencing for time the defendant had served in another jail while the defendant’s case was pending. In each situation, the defendant had already been sentenced in another case and had already received credit in the other case for the same time. In each case, the court denied credit because the defendant had not been held in the other jail solely on account of the charges for which the defendant was being sentenced. Essentially, the court in each case simply denied granting credit at sentencing for jail time the defendant had already received credit for in another case, even though the case for which the defendant was being sentenced was pending at the time tire defendant had been in the other jail.
Here, Prebble only requested credit for the time he was held in the McPherson County jail pending disposition of his case in that district. He did not seek credit for time spent in another county jail while his case was pending. The State is correct that Prebble had a detainer from Rice County during the time he was held in the McPherson County jail. However, the case law cited by the parties does not say that the defendant is denied jail time credit at sentencing simply because the defendant has a detainer or warrant pending from another district, as the State argues here. Such a position would render K.S.A. 2006 Supp. 21-4614 almost meaningless because it is certainly common for a defendant in a criminal case to have a detainer or warrant pending from more than one district at any given time.
The district court in Prebble’s case put the cart before the horse. At some point Prebble will presumably be returned to Rice County to answer the felony theft charge pending in that district. If he is ultimately sentenced and attempts to receive credit in that case for the 231 days he spent in the McPherson County jail, his request should be denied because the time Prebble spent in the McPherson County jail was not solely on account of the Rice County charge. This is what Campbell, Calderon, Taylor, and Hartman stand for. However, this does not mean that Prebble is not entitled to receive credit for the 231 days he spent incarcerated in the McPherson County jail pending disposition of his case in that district.
We conclude the district court erred in denying Prebble jail time credit simply because he had a detainer pending from another district at the time of his sentencing. Prebble is entitled to jail time credit for the time he was held in the McPherson County jail pending disposition of his case in that district, but he is not entitled to credit for this time in any other case. This result satisfies the purpose and intent of K.S.A. 2006 Supp. 21-4614. The district court’s order denying Prebble jail time credit is reversed, and the case is remanded to district court with directions to forthwith amend the journal entry of judgment granting Prebble jail time credit of 231 days.
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The opinion of the court was delivered by
Price, J.:
Back in 1885 one Samuel T. Cherry and his wife conveyed a tract of land of approximately one acre to a school district. The deed contained the following clause:
“The premises herein conveyed is to revert to said Samuel T. Cherry when it shall fail to be used for school purposes . .
A schoolhouse was built on the tract and the property was used for school purposes until the spring of 1959, at which time it was abandoned.
Plaintiffs, claiming to be the owners of a portion of the tract by virtue of being successors in interest to Samuel T. Cherry and wife through various deeds in the chain of title through the years, brought this action to eject and enjoin defendant from trespassing upon the portion of the abandoned school tract claimed by them, and for damages.
The jury returned a general verdict for plaintiffs, ejecting and enjoining defendant from continuing to trespass and awarded damages in the sum of $300. Special questions also were answered.
On defendant’s motion, answers to five of the six special questions were set aside, and judgment was rendered in favor of defendant notwithstanding the general verdict for plaintiffs.
Plaintiffs have appealed from that ruling.
At the time of rendering final judgment the trial court split the costs of the action between the parties.
Defendant has cross-appealed from that order.
We first note defendant’s motion to dismiss plaintiffs’ appeal on the ground nothing has been brought here for review. Upon consideration of the record we are of the opinion the motion to dismiss must be denied.
Very briefly — the background of the case is this:
Plaintiffs and defendant were neighbors living a few miles south of Parsons. They had been on "opposite sides of the fence” in a local “school fight,” and apparently their differences of opinion had created some “hard feelings.” Through consolidation, or otherwise, the school in question was abandoned in the spring of 1959. The school building and appurtenances thereto were sold by the school district at public auction on August 8,1959. Defendant, through an agent, bought the school building. At the sale it was publicly announced that the purchaser would be given until March 1, 1960, to move the building. Defendant did not move it by that date.
On or about March 18, 1960, plaintiffs — claiming to be die owners of a portion of the abandoned school tract by virtue of the reversion clause in the 1885 Cherry deed — entered upon the property and commenced doing some work toward erecting a fence. The school building was still standing and contained hay which had been stored there by defendant. On the day in question defendant drove up on his tractor and pushed over some fence posts. Tempers flared and some “hot words” were passed. Be that as it may, plaintiffs later brought this action seeking to eject and enjoin defendant from trespassing on the tract in question, and for $500 actual damages and a like amount as punitive damages. The case was tried before a jury which returned the following general verdict:
“We, the jury duly impanelled and sworn in the above entitled cause, do upon our oaths find the issues herein joined in favor of the plaintiffs, and find that at the time of the commission of the act complained of, plaintiffs were the owners of the property herein involved and entitled to the possession thereof and defendant should be ejected and enjoined from continuing to trespass, and that plaintiffs have and recover judgment against the defendant actual damages in the sum of $150.00 on plaintiffs’ first cause of action, and we do further find that plaintiffs have and recover judgment for punitive damages against defendant in the sum of $150.00 on plaintiffs’ second cause of action.”
The jury also answered six special questions as follow:
“1. Please name the legal owner or owners of the fee simple title to the premises in controversy on August 8, 1959.
“Answer: Irvin A. Thompson and Cora E. Thompson.
“2. By what instrument or conveyance did the above named owner or owners acquire title to the premises in controversy?
“Answer: By the original deed of Samuel T. and Matilda R. Cherry plus plaintiffs’ exhibits 8-9 and 10.
“3. Who was in possession of the premises in controversy on August 8, 1959?
“Answer: School District Number 5.
“4. If you find the defendant guilty of trespass as alleged, please state the date that the plaintiffs became the owners of the fee simple title to the premises in controversy?
“Answer: August 8th 1959.
“5. If you find the defendant guilty of trespass, please state the means, instrument or conveyance by which the plaintiffs became the legal owners of the fee simple title?
“Answer: By the original deed of Samuel T. and Matilda R. Cherry plus exhibits number 8-9 and 10.
“6. If you find the defendant guilty of trespass, please state the date that the plaintiffs entered into possession and occupied the premises in controversy?
“Answer: March 18 — 1960.”
Defendant filed a motion for judgment in his favor—
“. . . notwithstanding the general verdict in favor of the plaintiffs for the reason that the special verdict and pleadings show that he is entitled to judgment.”
Defendant also filed a motion to set aside the answers to special questions Nos. 1, 2, 4, 5 and 6—
“. . . for the reason that said answers are materially irreconcilable and inconsistent with each other and with other answers to special questions, are contradictory in matters material to the issues of the case, are not supported by the evidence, are contrary to the evidence, and, in fact, leave said Special Questions undetermined and unanswered.”
Defendant also filed a motion for a new trial.
The trial court sustained defendant’s motion to set aside special findings Nos. 1, 2, 4, 5 and 6, and also sustained his motion for judgment notwithstanding the verdict. In harmony with those rulings defendant’s motion for a new trial was of course overruled.
As previously stated — plaintiffs have appealed from the two rulings adverse to them — and defendant has cross-appealed from the order assessing one-half of the costs of the action against him.
The statute (G. S. 1949, 60-2918) relating to general and special verdicts provides that when the special finding of facts is inconsistent with the general verdict — the former controls the latter— and the court may give judgment accordingly. The provision has been construed many times and the rule is that a general verdict imports a finding upon all of the issues in the case not inconsistent with the special findings; that the special findings are to be given such a construction, if possible, as will bring them into harmony with the general verdict, but if the special findings cannot be reconciled with the general verdict and are sufficiently full and complete in themselves and are not inconsistent with each other, judgment must follow the special findings. (Marley v. Wichita Transportation Corp., 150 Kan. 818, 821, 822, 96 P. 2d 877; Fralick v. Kansas City Public Ser. Co., 168 Kan. 134, 137, 211 P. 2d 443; Metzinger v. Suber a, 175 Kan. 542, 546,266 P. 2d 287, and Applegate v. Home Oil Co., 182 Kan. 655, 660, 324 P. 2d 203.)
The motion to set aside special findings Nos. 1,2,4, 5 and 6 was based on several grounds, above. The journal entry of judgment merely recites that the motion “is hereby sustained,” without specifying the ground. The end result, therefore, was that judgment was rendered for defendant on the remaining special finding (No. 3, above) notwithstanding the verdict.
The instructions are not included in the record before us. Error is not presumed, and therefore the presumption is that the jury was correctly instructed on all issues in the case.
It must be kept in mind that the ownership and possession of the abandoned schoolhouse is not a question in this case. The issue here concerns the ownership and right to possession of a portion of the tract of land which, for school purposes, had been abandoned.
Examining the general verdict and the special findings (all of which are set out above) we are unable to find any inconsistency between or among them.
In its general verdict the jury found that plaintiffs were the owners of the property involved and entitled to the possession thereof at the time of the commission of the acts complained of. Findings Nos. 1 and 2 state that as of the date of the public sale of the school building — August 8, 1959 — plaintiffs were the legal owners of the fee simple title to the premises in controversy by virtue of the 1885 Cherry deed containing the reversion clause — and three subsequent deeds in the chain of title. These two findings are consistent with each other and with the general verdict. Passing over finding No. 3 for the moment — finding No. 4 is that plaintiffs became the owners of the fee simple title to the premises on August 8, 1959 — that being the date of the public auction of the school building. This finding is not inconsistent with the general verdict or with findings No. 1 and 2. Finding No. 5 is in substance a repetition of finding No. 2. Finding No. 6 simply states the date upon which plaintiffs entered into possession of and occupied the premises in controversy — and is not inconsistent with the general verdict or any of the other mentioned findings.
Finding No. 3 — being the only one not set aside and therefore the one upon which the court entered judgment for defendant notwithstanding the verdict — simply states that on August 8, 1959 (the date of the public auction and sale of the school building), the school district was in possession of the premises in controversy. By such finding we assume the jury logically concluded that up to the instant the auctioneers gavel fell the school district was in "possession” of the premises. The sale of the building wrote the final chapter of the school district’s dominion over the premises, thus bringing to an end the use of such premises “for school purposes.” There is nothing in this finding which is inconsistent with findings Nos. 1 and 4, which are to the effect that on that date (August 8, 1959) plaintiffs became and were the owners of the premises. Possession is one thing — while ownership is another. And neither is finding No. 3 inconsistent with the other findings nor with the general verdict. In fact, as we read them — all special findings are consistent with each other and also are consistent with the general verdict. Defendant’s motion for judgment on “the special verdict” notwithstanding the general verdict has been set out above. For the purpose of obtaining a ruling the motion admitted the special findings to be true. (Banbery v. Lewis, 173 Kan. 59, 66, 244 P. 2d 202; Applegate v. Home Oil Co., 182 Kan. 655, 661, 324 P. 2d 203.)
Defendant relies in part on Rose v. School District No. 94, 162 Kan. 720, 179 P. 2d 181. The case is readily distinguishable from the one before us. There the plaintiff — being a successor in interest to the original grantor who had executed a deed to a school district containing a clause providing for reversion to the grantor upon abandonment of the property as a schoolhouse site — claimed ownership of the buildings which had been erected and used during the years the tract had been used for school purposes. Under the facts of the case it was held that plaintiff — being the successor in interest to the original grantor — did not, under the reversion clause in the original deed, become the owner of the school buildings upon abandonment of the tract for school purposes. As heretofore stated, however, ownership of the school building is not the question in the case before us.
Although factually dissimilar, we think the general principles announced in Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 89 P. 2d 838, are controlling on the underlying basic question in this case relating to the right of plaintiffs, as successors in interest, to ownership of the portion of the school tract in question upon its abandonment for school purposes — by virtue of the reversion clause in the 1885 Cherry deed. (And see also Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 370 P. 2d 419.)
In both' its general and special verdicts the jury found that plaintiffs were the owners of the tract in controversy, and those findings —despite defendant’s contention to the contrary — are supported by the evidence.
The situation presented here is not one in which the trial court expressed “dissatisfaction” with a verdict — in which event it would have been its duty to grant a new trial. (Grigsby v. Jenkins, 183 Kan. 594, 331 P. 2d 284.) Here the trial court overruled defendant’s demurrer to plaintiffs’ evidence and then later set aside five of the six special findings and entered judgment for defendant on finding No. 3 notwithstanding the verdict. As before stated, our conclusion is the special findings are consistent with each other and with the general verdict, and, being supported by evidence, it was error for the trial court to enter the judgment that it did. If it was “dissatisfied” with the verdict its duty, under the circumstances, was to grant a new trial.
Insofar as plaintiffs’ appeal is concerned the judgment is reversed with directions to reinstate the verdict and special findings.
In view of our conclusion, defendant’s cross-appeal from the order dividing the costs of the action between the parties, falls by its own weight, and it is further ordered that the costs of the action be taxed to defendant. | [
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The opinion of the court was delivered by
Parker, C. J-:
This case stems from a controversy as to the defeasance of a determinable fee, in oil and gas and other minerals, created by a reservation in a warranty deed.
The present owner of the land, Carl V. Dewell, appellee, brought the action to quiet his title against the Federal Land Bank of Wichita, appellant, which claims the mineral interest. The plaintiff prevailed in the court below and the defendant Bank has appealed.
The case was submitted to the district court on an agreed statement of facts which may be summarized thus:
On August 12, 1941, the appellant, owner of the fee simple title to the North Half (NM) of Section Thirty-two (32), Township Thirty (30) South, Range Forty-one (41) West, in Stanton County, Kansas, conveyed such land by warranty deed to the Federal Farm Mortgage Corporation, excepting and reserving an undivided one-half interest in the minerals for a term of twenty years from and after May 13, 1939, and “so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated.” The stipulation of facts gives the commencement date of the reservation as March 13, 1939. It appears, however, this was an inadvertent error and the court properly found the date to be May 13, 1939. On April 19, 1943, the Federal Farm Mortgage Corporation conveyed the real estate to appellee subject to and excepting the mineral interest retained by the appellant as above set forth.
On September 15, 1947, the appellee and his wife executed and delivered to Paul W- Fleeger an oil and gas lease covering their one-half mineral interest in the above described land for a primary term of ten years with the usual contingency for perpetuation by production, a shut-in royalty clause, and a provision for unitization. On September 17, 1947, the appellant executed and delivered to Paul W. Fleeger an oil and gas lease covering its one-half mineral interest in the above described land for a primary term of ten years with the usual contingency for perpetuation by production, a shut-in royalty clause, and a provision for unitization.
On August 26, 1957, the Superior Oil Company, having acquired an interest in the oil and gas leases, executed a declaration that it unitized the Southeast Quarter (SEM) and the Northwest Quarter (NW/á) of Section Twenty-nine (29), the Northwest Quarter (NW M) of Section Thirty-three (33), and the Northwest Quarter (NWM) of Section Thirty-two (32), all in Township Thirty (30) South, Range Forty-one (41) West, Stanton County, Kansas, for development and production of gas, casing head gas, gas distillate and condensate. On August 27, 1957, William Gruenerwald, being then the owner of the remaining interest in the oil and gas leases, executed a similar declaration.
On or about August 11,1957, actual drilling operations were commenced on the Southeast Quarter (SEM) of Section Twenty-nine (29), Township Thirty (30) South, Range Forty-one (41) West, being a component part of the gas drilling unit. The drilling was continued until on or about September 12, 1957, on which date the well was completed as a gas well capable of producing natural gas in paying quantities and having an open flow of gas upon completion of approximately 2200 MCF. On January 22, 1959, the Superior Oil Company executed an affidavit of production which affidavit was filed for record on January 30, 1959.
Shut-in royalty payments were made by the Superior Oil Company to, and were accepted by, appellee and appellant in Sep tember of each year, 1957, 1958 and 1959, in the amount of $160.00, except for the year 1959 appellee was paid $300.00.
The gas well which was completed on September 12, 1957, was shut-in and not connected to a pipeline until on or about January 11, 1960, on which date Colorado Interstate Gas Company commenced the purchase of gas from the well and had continued such purchase to the time this action was commenced.
It is conceded that the reserved mineral interest would have expired by its terms on May 14, 1959, in the absence of production. This leaves for our determination, the question as to (1) whether the discovery on the unitized acreage and the payment of shut-in royalty was the equivalent of “being produced or developed” as the term is used in the mineral reservation for the purpose of extending the primary term, and (2) if so, does the payment of shut-in royalty on the unitized acreage also extend the primary term on the Northeast Quarter (NEK) of Section Thirty-two (32) which was not included in the drilling unit? If the first question is answered in the negative, no further consideration need be given the second question, as the reservation on the Northeast Quarter (NEK) of Section Thirty-two (32), which has not included in the drilling unit, would have expired as a matter of course.
This court has held in a long fine of decisions that the conveyance or reservation of minerals in place by deed for a primary term and so long thereafter as oil or gas is produced or the premises are being developed creates a base or determinable fee.
In Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899, we said:
“Before consideration of controverted issues it should be stated that in this state a deed, conveying oil and gas in place for a fixed term of years and so long thereafter as either or both are produced in paying quantities, creates a base or determinable fee and that title to the estate so created vests immediately upon the execution and delivery of such an instrument but remains defeasible in the event of cessation of production (Richards v. Shearer, 145 Kan. 88, 91, 92, 64 P. 2d 56).” (pp. 234 and 235.)
See, also, Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844, and on rehearing Baker v. Hugoton Production Co., 182 Kan. 210, 212, 320 P. 2d 772.
Mineral reservations are to be construed in accordance with the intent and purpose of the parties as gathered from an examination of the entire instrument. If there is ambiguity in the language of the reservation, it should be construed most strictly against the grantor in the deed since it was in complete control at the time the reservation was made. Where the language of the instrument is clear and unambiguous, rules of construction are unnecessary.
"The necessity of applying rules of construction depend upon whether the terms of the reservation are clear and unambiguous, and if no ambiguity is apparent there is no need for the application of any rule to aid in their interpretation. ...” (Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 130, 368 P. 2d 19.)
Appellant contends that the mineral reservation and the separate oil and gas leases executed by the appellant and appellee should be construed together for the purpose of determining the intent of the parties. It cites authority to the effect that where two or more instruments are executed by the same parties contemporaneously or at different times in the course of the same transaction and concern the same subject matter, they are to be construed together if doubt is entertained as to the intent of the parties. Perhaps the rule as presented by appellant is acceptable, but it is not applicable here. There is no ambiguity in the language used. The instruments were not executed by the same parties. The instruments were not contemporaneous since the reservation was made in a deed executed in 1941, the landowner executed his lease on his one-half mineral interest September 15, 1947, the holder of the one-half reserved mineral interest executed its lease on September 17, 1947. There are no facts presented which indicate any concerted or joint action between the lessors, appellee and appellant, at the time the leases were executed.
The shut-in royalty clause contained in the leases was for the sole benefit of the lessee. It is a privilege granted the lessee in lieu of production. It does not purport to convey any estate or rights to anyone else. Neither does it purport to extend the interest of the holders of the mineral rights.
In Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P. 2d 1039, it is stated:
“The mineral conveyances here involved created a base or determinable fee. It is well settled in this jurisdiction that when a mineral deed has terminated because of failure to produce oil or gas, the court will not extend the term or revive rights which the parties themselves have definitely fixed by their contract (Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 Pac. 563; Ratcliff v. Guoinlock, 136 Kan. 149, 12 P. 2d 798; Wilson v. Holm, supra), and when a mineral deed has terminated because of cessation of production, it is not revived by subsequent production of oil even though it be in the same well (Wilson v. Holm, supra).” (pp. 88 and 89.)
The mineral reservation in unequivocal terms, excepted and reserved an undivided one-half interest in the minerals for a term of twenty years from and after May 13, 1939, and “so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated.”
The appellant would in effect have us add:
or shut-in royalties are being paid in lieu of production.”
This a court cannot do. If the appellant desired such a result it should have inserted the language in the reservation.
The provision in the lease executed by appellant, to which the reversioner was not a party, for payment of shut-in royalty does not constitute an agreement by the reversioner to extend the term of the mineral grant nor make the payment of shut-in royalties the equivalent of production.
In the case of Berline v. Waldschmidt, 159 Kan. 585, 156 P. 2d 865, we held:
“Where in an action to extend the tenn of a mineral deed, which would otherwise expire, for such period as war-time regulations make it unlawful to drill a test well on the land covered hy its terms, it appears from an examination of the petition and inferences properly to be drawn therefrom that the happening of the event relied on as the basis for such extension was not provided for by the terms of the instrument, and it further appears that such supervening event was one which could have been reasonably foreseen by the parties and provision made for therein, such petition fails to state facts sufficient to constitute a cause of action and a demurrer thereto was properly sustained.” (Syl. f 1.)
The appellant relies heavily on the cases of Panhandle Eastern Pipe Line Company v. Isaacson, 255 F. 2d 669, and McVicker v. Horn, Robinson & Nathan (Oklahoma) 322 P. 2d 410. Both these cases dealt with mineral rights or leases on land in Oklahoma. The decisions of this court are not in accord with the decisions of the Oklahoma courts on the main question involved in this case. The Federal court made this clear and stated the Kansas rule in Panhandle Eastern Pipe Line Company v. Isaacson, supra. It stated:
“Appellants rely heavily on Home Royalty Ass’n v. Stone, 10 Cir. 199 F. 2d 650. That case involved a mineral reservation for a fixed term and as long thereafter as minerals are produced. Within the primary term a gas well was completed but no gas was marketed. This court on the authority of applicable Kansas decisions, held that in order to extend the term there must be actual production as distinguished from exploration and discovery during the primary term. In the later case of Bristol v. Colorado Oil and Gas Corporation, supra, this court noted that the Kansas rule had been criticized and declined to follow it in a case involving a lease of Oklahoma land.” (p. 673.)
The Kansas rule is in harmony with the rule as announced by the courts of Texas. Sellers v. Breidenbach, (Tex. Civ. App.), 300 S. W. 2d 178, states:
“. . . The parties could have placed in their royalty deed a shut-in gas well provision, if they had desired to do so, but we find no such provision in this deed. They could have provided that the royalty deed would be continued in effect if a well capable of producing was completed on the premises, if they had so desired, but they did not do so. ‘Paying production’ does not mean the completion of a well capable of producing, it means a well which is actually producing on the significant date.” (p. 179.)
In Archer County v. Webb, 326 S. W. 2d 250, affirmed in 161 Texas 210, 338 S. W. 2d 435, the court held that the payment of shut-in gas royalties did not extend the primary term of a royalty deed where the extension clause called for production. See, also, Holchak v. Clark, (Tex. Civ. App.), 284 S. W. 2d 399; Union Producing Company v. Scott, (Texas), 173 F. Supp. 361, affirmed 267 F. 2d 469, Fifth Circuit (restyled Scott v. Union Producing Company), certiorari denied 363 U. S. 842, 4 L. Ed. 2d 1726, 80 S. Ct. 1607, petition for rehearing denied 364 U. S. 855, 5 L. Ed. 2d 78, 81 S. Ct. 32. And see Holland v. Vela De Pena, (Tex. Civ. App.), 343 S. W. 2d 750, following Archer County v. Webb, supra.
The owner of a defeasance mineral interest cannot change the conditions by which the interest is to continue beyond the primary term, by any provision in an oil and gas lease to which the landowner is not a party.
The payment of shut-in royalty is not the equivalent of “production” or “being developed or operated.” As the land was not being produced, developed or operated, the mineral interest was not perpetuated or extended beyond the primary term.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
In this workmen’s compensation case, the question involved is whether appellee, who was working in Missouri, is covered by the Kansas Workmen’s Compensation Act when he was injured in Missouri.
This matter depends on whether the contract of employment was made in Kansas. In G. S. 1949, 44-506, it is provided that an employee is covered by the Kansas Workmen’s Compensation Act if the hiring took place in Kansas despite the fact that he suffers injury in another state.
Appellee is a boilermaker and was employed by the Rock Island Transit Company when he was informed by his union that there was a possible opening with appellant in Sibley, Missouri. Appellee went to Sibley and applied for the job. He was told that he would be called when he was needed which would be in a week or so. He made another trip to Sibley with the same result. On or about September 22, 1959, Mr. Cicutto, respondent’s erection engineer, called claimant to tell him there was an opening for him at Sibley, Missouri as a boilermaker. The telephone call was made from Kansas City, Missouri to appellee’s home in Kansas City, Kansas. Appellee was not at home when the call came. He later returned the call, accepted the job and arranged to report the next morning.
The acceptance of the offer of employment was held by the trial court to have made the contract of employment a Kansas contract, following the case of Pearson v. Electric Service Co., 166 Kan. 300, 201 P. 2d 643. It is to be noted that the Pearson case, under the facts of that case, found the contract of employment was not a Kánsas contract, having been made by a telephone call to an employee in Tennessee and the court held it to be a Tennessee contract. The rule of law, however, fits exactly.
Under G. S. 1949, 44-506, where the contract of employment was made within the state, the fact that the injury was sustained in Missouri is of no importance and the Kansas Workmen’s Compensation Act applies.
The claimant argues strongly that Mr. Cicutto was satisfied that he had the job filled and did not call anyone else. Claimant also immediately arranged to inform the authorities at the Rock Island Transit Company that he had other employment and that he would not be returning to Rock Island.
The respondents contend that the Pearson case is not in point; that a different theory should be applied to the case; that other states have applied a theory of the intent of the parties, but we feel that these cases are not in point and we are content to hold as the trial court did on the evidence that the case at bar is governed by Pearson v. Electric Service Co., supra.
In Evans v. Tibbetts, 134 Kan. 131, 4 P. 2d 399, we find a workmen’s compensation case where the employment contract was made in Kansas and the workman met his death in Mississippi. Mr. Justice Harvey found no difficulty in upholding an award in favor of the workman’s dependents under the provisions now found in G. S. 1949,44-506.
Respondents have questioned the district court’s allowance of reimbursements of medical expense; they further question the court’s finding of permanent partial disability and lastly question the award of future medical expense. We question the reason for these attacks since the evidence pointed to by the claimant in answer to such suggestions seems clear.
The trial court’s findings and judgment are affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellee) Maxine Hays commenced this action for a declaratory judgment under the provisions of G. S. 1949, ch. 60, art. 31, against Levi Rymph and other defendants (appellants) as members of the Board of Trustees of the Policemen’s Pension Fund of the City of Wichita seeking an adjudication of her right to pension benefits under the provisions of G. S. 1949, ch. 13, art. 14a.
The petition alleged that the named defendants constituted the Board of Trustees of the Policemen’s Pension Fund of the City of Wichita (G. S. 1949, 13-14a04); that plaintiff was the surviving widow of Marion Hays, a member of the police department of the city of Wichita at the time of his death, and who had made contributions to the policemen’s pension fund as provided by the mentioned act and the ordinances of the city; that the act provided for a widow’s pension equal to fifty per cent of decedent’s salary at the time of his death; that plaintiff made demand on the board for payment of the pension due her as the surviving spouse of Marion Hays, but the defendant board has refused to pay the pension.
Plaintiff further alleged that an actual controversy existed between plaintiff and the pension board and that plaintiff believed she was entitled to receive a pension as provided by the aforementioned act, and that the action was brought for declaratory judgment, declaring that she be entitled to the pension as provided by the statute.
The defendant board, by way of answer, admitted the official capacity of the defendants; that plaintiff was the widow of the deceased officer; that at the time of his death plaintiff’s husband was a member of the police department and had made contributions to the policemen’s pension fund as provided by the act and the enabling ordinances of the city.
The answer further admitted that plaintiff, as surviving widow, had made demand upon the board for payment of a pension and that the board had refused to pay the pension. Defendants admitted there was an actual controversy between the plaintiff and the board but denied that tihe plaintiff was entitled to receive a pension as provided by statute. The answer further alleged that the decedent did not die of any disease contracted while in the performance of his duties or by reason of his occupation as a policeman of the city, and by reason thereof plaintiff is not entitled to the relief sought.
The answer further alleged that plaintiff previously applied for a refund of the contributions made by her husband to the pension fund and that by reason of her application was paid the sum due her under the act and waived her rights to a pension.
To the answer plaintiff replied by way of a general denial and specifically denied that she waived her right to a pension under the facts stated.
On the pleadings thus formed the case proceeded to trial to the court.
The trial court entered judgment for the plaintiff, directing the defendant board to allow the plaintiff the pension provided under section 13-14a07, and for costs. From an order overruling their motion for a new trial, defendants have appealed.
It is noted that while plaintiff’s petition alleged an actual controversy existed between plaintiff and defendants, nowhere is it stated what the controversy was. Roth the petition and the answer admitted plaintiff presented her claim to the pension board and that her claim was denied.
Plaintiff concedes the trial court was faced with the determination of whether or not deceased died as a result of a disease contracted while in the performance of his duties by reason of his occupation as a policeman. Plaintiff presented medical evidence to the court to the effect that stress and strain of the work contributed to her husband’s death. Defendants presented evidence to the contrary.
It is contended by defendants, and conceded by the plaintiff, that a litigant must exhaust his administrative remedies, if such administrative appeal or review is provided for in the statutes. Chapter 13, article 14a, upon which this cause of action is based, provides for no review; therefore, the plaintiff contends, there must be an original action commenced for the determination of a right. Plaintiff asserts this declaratory judgment action was not instituted for the purpose of determining whether or not the police pension board of the city acted in an arbitrary or capricious manner, nor to have the district court review the findings of the police pensión board, but is to obtain an original determination of the plaintiff’s rights under the statute. It is difficult to follow plaintiff’s contention that she is not seeking a review of the police pension board’s action denying her a pension, inasmuch as the only question presented by way of evidence was that her husband died by reason of a disease contracted in his occupation as a policeman.
The determinative question confronting this court is whether or not under the pleadings a controversy is presented that is justiciable under the declaratory judgment act. This court, in considering controversies justiciable under the act (G. S. 1949, 60-3127, et seq.), has consistently adhered to the rule that such action will not lie where there is a factual dispute as to how the contentions arose and what the legal contentions are. If the legal contentions, or the controversies as to what the legal questions are, cannot be determined until after an extended hearing of the evidence and findings of fact, a declaratory judgment action is not proper. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other form of action should be brought. (Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380, P. 2d, 413, McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351 P. 2d 202; Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350.)
Under the pleadings before us we have a situation where the plaintiffs petition alleged that an actual controversy existed between plaintiff and defendants but failed to state what that controversy was. The defendants in their answer asserted that an actual controversy existed but failed to state what that controversy was. There was no attempt to reach an agreement on what the actual contentions of the parties were nor an agreement on other issues raised by the pleadings. It is clearly shown on the face of the pleadings that the legal controversy could not be determined until there was an adjudication of the facts presented to which the law must be applied.
A declaratory judgment action is not suitable where the defendant’s answer raises entirely new contentions based on a disputed question of fact. Moreover, there is an additional reason why a declaratory judgment action is not proper in the instant case. While it has been held that a declaratory judgment proceedings may be maintained, although such proceedings involve the determination of a disputed question of fact, it cannot be used where the object of the proceedings is to try such question as a determinative issue, as in the instant case. An action for declaratory judgment may be maintained only for the purpose of determining and declaring fixed legal rights where it will accomplish some useful purpose. It cannot be invoked merely to try issues and determine questions that are uncertain and hypothetical. The primary purpose of the declaratory judgment act is to adjudicate questions of law, not questions of fact. (Alliance Mutual Casualty Co. v. Bailey, supra; Ennis v. Casey, 72 Idaho 181, 238 P. 2d 435, 28 A. L. R. 2d 952.)
In Pugh v. City of Topeka, 151 Kan. 327, 331, 332, 99 P. 2d 862, we held that a declaratory judgment action was never intended as a substitute for a new trial, or for an appeal, or where it appears that an immediate cause of action exists between the parties for which the ordinary legal remedies are available. Inasmuch as in the instant case the determinative question was one of fact, the case is not suitable for determination by a declaratory judgment action; therefore, the judgment of the trial court is reversed with instructions to set aside the judgment and dismiss the action. | [
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The opinion of the court was delivered by
Parker, C. J.:
The plaintiff, Alliance Mutual Casualty Company, commenced this action for a declaratory judgment, under the provisions of G. S. 1949, 60-3127, against its insured, Raymond A. Whitebread, and other defendants who had claims against the insured as the result of an automobile collision, seeking an adjudication that the insurance policy in question had expired before the collision occurred.
The extensive pleadings, which disclose the conflicting contentions as to the nature of the controversy and the conflicting theories as to how the contentions arose may be summarized as follows:
The petition sets out the names and addresses of the parties and then alleges:
“Plaintiff alleges that prior to November 5, 1959, it had issued its policy No. 245232 to Raymond A. Whitebread, covering a 1958 Mercury automobile, the policy being for bodily injury and property damage coverage. That said policy expired on November 5, 1959, (the expiration date of the policy), and that a copy of said policy is attached hereto and marked Exhibit A and made a part hereof.
Plaintiff alleges that on the 18th of November, 1959, Raymond A. White-bread was operating said vehicle at a point near the intersection of 17th and Topeka Blvd. in Topeka, Kansas. Riding with him in said vehicle was co-defendants Billy L. Spillman and Robert Liggett. That said car was being driven north at about 5:07 p. m. when a 1959 Ford, being driven south by the defendant Clayton Bailey, collided with the vehicle driven by Raymond A. Whitebread. That as a result of said collision, claims for personal injuries have been asserted against Raymond A. Whitebread by the co-defendants Clayton Bailey, Billy L. Spillman and Robert Liggett. That the co-defendant Billy L. Spillman has caused to be filed a case in the District Court of Douglas County, Kansas, for damages against Raymond A. Whitebread for the sum of $25,000. That as a result of these claims, Raymond A. Whitebread has called upon the plaintiff to defend him in said action, contending that said policy was or should have been renewed on the 5th day of November, 1959, when it expired, and contending that said policy affords him coverage for said collision.”
The petition further denied that there was any liability on the part of the plaintiff to defend the claims or answer in damages to the defendants, and that because of the various claims of the parties an actual controversy existed between them; and then prayed for a declaratory judgment adjudging that the plaintiff was not obligated under its policy to defend or answer in damages to the defendants or any of them.
The defendant, Robert Liggett, neither appeared nor answered the petition. The other three defendants (Whitebread, Bailey and Spillman) filed answers and cross-petitions.
Spillman filed an answer which in effect admitted all of the allegations of the petition except the allegation that the insurance policy had expired on November 5, 1959. The answer admitted that “this is one of those cases mentioned in G. S. 1949, 60-3127, providing for declaratory judgment where an actual controversy exists between tihe parties.” The prayer of the answer asked for a declaratory judgment adjudging that plaintiff was obligated under its policy to defend and answer in damages to the defendants or any of tihem.
It is to be noted that neither the petition nor the answer disclosed any of the contentions of the defendant, Spillman, as to what his contentions are as to why the policy did not expire on November 5, 1959.
Spillman then filed a lengthy cross-petition consisting of some 15 paragraphs. It suffices to here state that this pleading, after stating preliminary facts, did allege that:
“This answering Defendant states and alleges that the Plaintiff did issue policy No. 245232 to Raymond A. Whitebread covering a 1958 Mercury automobile, however, this Defendant alleges that the said policy did not expire on November 5, 1959, and further alleges that the policy, a copy of which is attached to the Plaintiff’s Petition and marked Exhibit ‘A’, is not in accordance with the agreement between the said Raymond A. Whitebread and the Plaintiff.
“That through the negligent error of the Alliance Mutual Casualty Company, its agent, servant and employee Robert A. Turney and the Commercial Insurance Service, Policy No. 245232 did state an effective date of November 5, 1958, whereas the date intended by all parties for the inception of the policy No. 245232 was to have been November 26, 1958, and the expiration date on Policy No. 245232 in accordance with the agreement of the parties was to have been November 26, 1959, at 12:01 A. M., however, due to said error the policy did state an incorrect date of termination of November 5, 1959.
“That during all times mentioned herein the said Robert A. Turney was authorized by this Plaintiff to write and otherwise issue in behalf of this Plaintiff all policies of insurance known as 'automobile policies’ similar to Policy No. 245232 as attached to Plaintiff’s Petition. Further that the said Robert A. Turney did have authority of this Plaintiff to issue the Policy 245232 from Iris office and upon termination of Policy No. FA 76765 of the Wabash Fire and Casualty Company.
“The defendant Whitebread is not familiar with the practice of insurance and insurance writing and has necessarily relied upon the said Robert A. Turney and the Commercial Insurance Service to write policies of insurance and through a course of dealings lasting over several years with the said Robert A. Turney, the Defendant Raymond A. Whitebread has been caused to and did rely upon the actions and representations of the said Robert A, Turney.
“That it was the intention of the parties thereto, including this Plaintiff, that Defendant Whitebread pay for only one policy covering said automobile during the period of November 5, 1958, to November 26, 1958, whereas by reason of the error and negligence of Robert A. Turney, referred to, he had and paid for two such policies during the said period.
“That the Defendant Whitebread, in accordance with the conditions of the Policy No. 245232 did on the day following the accident of November 18, 1959, notify the said Robert A. Turney and the Commercial Insurance Service of the accident in question, inasmuch as he had cause to and did believe that he was covered by the said policy on November 18, 1959.”
The cross-petition further alleged that the defendant Spillman had demanded of the plaintiff that it pay all expenses incurred within one year from the date of the accident for necessary medical expenses as provided for in the policy and that plaintiff had refused such demands. And such pleading concluded:
“Wherefore this answering Defendant asks that this Court reform Policy No. 245232, a copy of which is attached to Plaintiff’s Petition to correct the mistake in the said policy of insurance by changing the policy period of November 5, 1958, to November 5, 1959, to the policy period of November 26, 1958, to November 26, 1959, and
“Further Defendant prays die Court for a declaratory judgment adjudging that the Plaintiff is obligated in accordance with the terms of said policy and that this Defendant be allowed a reasonable sum as attorneys fees together with his costs.”
The Plaintiff's reply to Spillman’s answer was a general denial. Its answer to his cross-petition follows:
“. . . for its answer to the cross petition of the defendant Spillman, this plaintiff denies each and every allegation contained therein.
“Answering further this plaintiff alleges that the defendant Spillman has failed to make any demands upon the plaintiff and has not complied with any policy, if said policy were in full force and effect, and defendant Billy Spill-man is not entitled to recover any attorney fees.
“Wherefore this plaintiff prays that defendant Spillman take nothing by his cross petition, and that plaintiff have judgment as prayed in his petition.”
It is to be noted that in no place in the pleading is there any agreement as to the issues and controversy. The plaintiff contends that the policy in question had expired by its terms before the accident occurred. The defendant Spillman’s cross-petition was in effect an action to reform an instrument, the insurance policy. It was met by a general denial.
The defendant Clayton Bailey filed an answer and cross-petition. It alleged facts quite similar to those set out in the answer and cross-petition of Spillman except for additional allegations in the cross-petition, which we note:
“. . . The said Robert A. Turney has advised this answering Defendant that he charged the Defendant Raymond A. Whitebread a double premium for insurance coverage from November 5, to November 26, 1958, in that the said Robert A. Turney charged the Defendant Raymond A. Whitebread premiums on policy No. 245232 issued by the Plaintiff Alliance Mutual Casualty Company and also on policy No. FA 76765 issued by the Wabash Fire and Casualty Company, and that the said Robert A. Turney did not refund or attempt to refund to the Defendant Raymond A. Whitebread this double premium charged by the said Robert A. Turney from November 5, 1958, to November 26, 1958. The collection of said double premium by Robert A. Turney constituted a constructive fraud practiced by the said Robert A. Tumey upon the Defendant Raymond A. Whitebread, to the injury and detriment of this answering Defendant.”
The plaintiff replied with a general denial to Bailey s answer and answered Bailey’s cross-petition as follows:
“. . . for its answer to the cross petition of the defendant Bailey, this plaintiff denies each and every allegation contained therein.
“Answering further, this plaintiff demurs for the reason that the court is without jurisdiction to grant reformation of a contract to some third party, not a party to this contract.”
The defendant Whitebread, named in the insurance contract as the insured, filed an answer and cross-petition quite similar to the answer and cross-petition filed by Spillman. In addition he included the allegations of constructive fraud pleaded by Bailey. He also added a second cause of action to his cross-petition in which he alleged:
“That due to Plaintiff’s refusal, without just cause or excuse, to perform under the provisions of its policy, said Defendant Raymond A. Whitebread has been refused credit and has been unable to obtain credit needed to continue his contracting business and that said Defendant Raymond A. Whitebread has been damaged thereby in the sum of Five Thousand ($5,000) Dollars.
“That due to Plaintiff’s refusal, without just cause or excuse, to perform under the provisions of its policy the Defendant Raymond A. Whitebread has, under G. S. 1959 Supp. 8-760, lost his right to operate or own a motor vehicle in the State of Kansas and that Defendant has been damaged thereby to the extent of Five Thousand ($5,000) Dollars."
The prayer of the second cause of action of Whitebread’s cross-petition asked for the recovery of damages in the amount of Ten Thousand Dollars.
The plaintiff’s response to Whitebread’s pleadings will now be noted—
Reply to answer:
“. . . Reply to answer of the defendant . . ., plaintiff denies each and every allegation contained therein, inconsistent with or contrary to the allegations of the plaintiff’s petition.”
Answer to amended cross-petition:
. . for its answer to the cross petition of the defendant Whitebread, this plaintiff denies each and every allegation contained therein except this defendant (sic) plaintiff admits that its policy No. 2452S2 was issued November 5, 1958, and expiring on November 5, 1959, and admits that . . . Whitebread was involved in an automobile collision on or about the 18th day of November, 1959, after said policy had expired.
“. . ., this plaintiff specifically denies that Robert A. Turney was authorized to issue its policy from November 26, 1958 to November 26, 1959, and specifically denies that Robert A. Turney had any authority to bind this plaintiff.
“. . ., the plaintiff alleges that its policy was issued at the request of and on behalf of . . . Whitehead and dated on November 5, 1958, at the request of . . . Whitebread, and that . . . Whitebread had said policy in his possession and well knew the date that the Wabash policy mentioned in said action was cancelled.”
Answer to second cause of action:
“Plaintiff, for its answer to . . . Whitebread’s Second Cause of Action, denies each and every allegation contained therein, and denies that . . . Whitebread has ever made any demands upon it under the alleged policy. “Wherefore this plaintiff prays that this defendant take nothing and that it have judgment as prayed for in its petition.”
Having described the pleadings it can now be stated that the case was tried as issues of fact with complete disagreement as to the questions of law involved and how the contentions of the parties arose. In this connection it is interesting to note the transcript consisted of some one hundred and thirty pages with numerous Exhibits.
The trial court rendered judgment in favor of the plaintiff and against each defendant; namely, Whitebread, Spillman and Bailey. The judgment, as it applies to such defendants, is set forth in separate and distinct journal entries of record which were approved by counsel for the respective parties and signed by the trial court. The concluding portion of each such journal entry of judgment reads:
Wherefore It Is Ordered, Adjudged and Decreed that plaintiff shall have judgment adjudging that its policy expired as of November 5, 1959, and that it owes no duty or obligations to the defendant Raymond A. Whitebread as a result of his automobile collision November 26, 1959, to defend any actions filed against him as a result of said collision or to respond to any damages to any of the defendants. It is further ordered the cost shall be taxed to the plaintiff.”
After rendition of the judgment each of the above named defendants filed a motion for a new trial. The trial court’s action in overruling each of such motion is reflected by three journal entries of record and the defendants bring the case to this court under three separate and distinct notices of appeal.
The first question confronting this court is whether, under the complicated and highly controversial pleadings, a controversy is presented which is justiciable under the declaratory judgment act (G. S. 1949, 60-3127, et seq.). The parties have not raised or discussed the question. Even so this serious preliminary question requires attention before the merits of the case can be considered.
The question, being one of jurisdiction, can and should be raised by this court on its own motion. (Riley v. Hogue, 188 Kan. 774, 365 P. 2d 1097.)
In Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350, we said:
“However, neither party in the action has raised the question of jurisdiction of this court and as has been stated on many occasions, whether the parties raise the question or not, the court has the duty to do so upon its own motion. . . .”
This court, in considering controversies justiciable under the declaratory judgment act (G. S. 1949, 60-3127, et seq.), has consistently adhered to the rule that a declaratory judgment action will not lie where there is a factual dispute as to how the contentions arose and what the legal contentions are. If the legal contentions, or the controversy as to what the legal controversies are, cannot be determined until after an extended hearing of the evidence and findings of fact, a declaratory judgment action is not proper. See, e. g., McAdam vs. Western Casualty & Surety Co., 186 Kan. 505, 351 P. 2d 202, where the following statement appears:
“. . . Normally, a declaratory judgment action is not well suited to a case in which there is a controvery regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other form of action should be brought. (City of Cherryvale v. Wilson, 153 Kan. 505, 112 P. 2d 111; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221; Stalnaker v. McCorgary, 170 Kan. 9, 223 P. 2d 738; Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345; Bodle v. Balch, 185 Kan. 711, 347 P. 2d 378; State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042.)” (pp. 506, 507.)
Under the pleadings before us in this casewe have a situation where an insurance company brought an action against the insured and three other defendants who claim injuries due to the negligence of the insured in an automobile collision. The insurance company, here the appellee, seeks an adjudication that the insurance policy expired by its own terms before the accident occurred. The defendants, now the appellants, filed cross-petitions in which they alleged constructive fraud and mutual mistakes, and asked to have the expiration term of the insurance policy reformed and extended. In addition, the insured (Whitebread) filed a cross-petition against the company for special damages due to the refusal of the company to recognize the claimed extention date of the insurance policy. The appellee answers all these allegations with a general denial. There is no attempt to reach an agreement as to these contentions or, for that matter, numerous other controversial issues raised by the pleadings. The appellee, in answering the cross-petition, contends “that the court is without jurisdiction to grant a reformation of the contract to some third party, not a party to this contract.” It is clearly shown on the face of the pleadings that the legal controversy or contention to be determined could not be known until there was a determination of the facts to which the law must be applied.
In Huber v. Schmidt, 188 Kan. 36, 360 P. 2d 854, we outlined the proper procedure for a declaratory judgment and there stated:
“We have said many times that when the petition states facts out of which the controversy arose and states clearly the views or claim of plaintiff, as well as the views or claim of defendant, and the court is asked to adjudicate the controversy, the appropriate pleading to be filed by defendant is an answer admitting that the controversy arose from the facts stated by plaintiff and that plaintiff’s contentions were correctly stated, providing defendant agrees to the matters so pleaded. If defendant thinks the facts giving rise to the controversy or the contentions of the plaintiff or of the defendent are not accurately and fully stated, defendant should answer and plead the facts and contentions as he understands them. If defendant pleads facts or contentions contrary to those pleaded by plaintiff, plaintiff, by reply, should either admit or deny the contrary facts or contentions. In other words, the only pleadings permissible in a declaratory judgment action are the petition, the demurrer, if the petition fails to state an actual controversy, an answer and a reply. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other action should be brought, (citing cases.)” (pp. 39, 40.)
A declaratory judgment action is not suitable where the defendant’s answer and cross-petition, abandon the contentions set out in the petition and raise entirely new contentions based on a disputed question of fact. Moreover where the cross-petition is met by a general denial, there is no common ground where the specific contentions of the parties meet.
There have been two very recent cases, covering facts quite similar to those involved in the case at bar, which determine the jurisdictional question now under consideration.
In Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350, we stated and held:
“. . . The requirements of a declaratory judgment action are present in the case since there are two or more parties involved and a controversy exists between them, but that is not all. In the recent case of McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351 P. 2d 202, we discussed a situation such as we presently have before us where diere is a controversy as to how the contentions of the parties arose. Here diere is no agreement of the parties in die pleadings or otherwise which makes determination of the material question possible by declaratory judgment for the reason the petition sets out plaintiff’s viewpoint and the answers of the defendants not only set out denials of tiiose facts but also allege entirely different circumstances as to the purpose for taking and the contents of the statements of Minnie and J. R. Barnett. . . .” (p. 387.)
Later, and in State Automobile & Casualty Underwriters v. Gardiner, 189 Kan. 544, 370 P. 2d 91, we said:
“As previously mentioned, the record in this appeal contains not only the pleadings filed in this declaratory judgment action with the attached insurance policy, but also the four petitions in tort actions filed by the Tannahills who were made parties defendant along with Gardiner. Thus all these documents are before this court for examination and determination just as they were before the trial court. One of the facts admitted in the pleadings is that the face of the insurance policy shows that the plaintiff company was the insurer and Mulder was the named insured. Mulder was not made a party, but we shall pass that for the moment and proceed to determine whether the pleadings appearing in this action actually seek a declaratory judgment under G. S. 1949, 60-3127 to 60-3132, inclusive. This same point was recently considered in Farm Bureau Mutual Ins. Co. v. Barnett, 189 Kan. 385, 369 P. 2d 350, where it was stated that while the circumstances there existing met the qualifications that two or more parties were involved and an actual controversy existed between them, the parties had failed to agree in the pleadings as to how their contentions arose, and it was held that a declaratory judgment action was not the proper proceeding by which to obtain the relief sought. . . .” (p. 547.)
Aside from the heretofore cited decisions there is an additional reason why a declaratory judgment action is not proper in this case. A proceeding for a declaratory judgment cannot be used where the object of the proceeding is to try issues of fact as the determi native issue. A declaratory judgment proceeding may be maintained although such proceeding involves the determination of questions of fact. This is anticipated by the declaratory judgment act. (G. S. 1949, 60-3130.) However, the questions of fact must be incidental to the determination of the main issue and not the main issue in the case. As the issues developed in this action, the factual questions of constructive fraud and mutual mistake where the determinative issues presented. These issues presented questions of fact which were seriously disputed.
The last rule stated appears to be one of very general application. In the case of Ennis v. Casey, 72 Idaho 181, 238 P. 2d 435 28 A. L. R. 2d 952, we find the following statement:
“While it has been held that a declaratory judgment proceedings may be maintained, although such proceedings involve .the determination of a disputed question of fact, Hamilton. Corporation v. Corum, 218 Cal. 92, 21 P. 2d 413; Sec. 10-1209, I. C., it cannot be used where the object of the proceedings is to try such fact as a determinative issue, 1 C. J. S., Actions, p. 1031, i 18, and a declaratory judgment should be refused where the questions presented should be the subject of judicial investigation in a regular action. Heller v. Chapiro, 208 Wis. 310, 242 N. W. 174, 87 A.L.R. 1201; Oldham County ex rel. Woolridge v. Arvin, 244 Ky. 551, 51 S. W. 2d 657.” (p. 185.)
The primary purpose of the declaratory judgment act is to adjudicate questions of law not questions of fact.
What has been heretofore stated compels a conclusion that the issues as presented by the pleadings in this case are not suitable for determination by a declaratory judgment action.
Therefore the judgment is reversed with instructions to dismiss the action. | [
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The opinion of the court was delivered by
Parker, C. J.:
The plaintiff hospital commenced this action in the district court of Sedgwick County on December 8, 1960, by filing a petition wherein it charged in substance that defendant Mrs. Nina Nadine Lane was admitted to the hospital at her request and at the request of the defendant Mrs. Eugene Freeman, her sister; that Mrs. Freeman agreed in writing to be responsible for hospital charges for services and treatment rendered her sister; that such charges amounted to $1,108.41; that its repeated demands for payment of the hospital account had been refused by both defendants; and that it was entitled to judgment against them for the amount thereof.
On January 9, 1961, Mrs. Freeman filed an answer to the petition in which she denied all material allegations of that pleading. The record discloses no pleading by Mrs. Lane and it may be assumed she was in default of answer. The record further discloses that, with issues joined as indicated, the cause came on for trial as to the defendant Mrs. Freeman on January 9 and that prior to the commencement thereof counsel for the contending parties stipulated:
“. . . that the amount of the bill is $1,108.41 and that the only question involved here is whether or not Mrs. Eugene Freeman is liable for the bill.”
Following the introduction of plaintiff’s evidence Mrs. Freeman demurred thereto on grounds that such evidence failed to establish a cause of action against her. After reviewing the evidence and hearing arguments of counsel the court announced it was of the opinion the demurrer should be sustained. It then advised the jury of its ruling and discharged the jurors from further service in the case. Thereupon, and on January 9, 1962, the court formally entered judgment sustaining the demurrer to the evidence and taxing the costs against the plaintiff.
On January 11, 1962, plaintiff filed a motion asking the court to vacate its ruling on the demurrer and grant a new trial. In this motion it charged its rights had been substantially affected because (1) of abuse of discretion of the court; (2) of erroneous rulings of the court; (3) the decision was in whole contrary to the evidence; and (4) the decision was given under the influence of passion or prejudice. This motion was denied on February 19,1962.
Later, and on April 18, 1962, plaintiff gave a notice of appeal which, so far as here pertinent, reads:
“To: Nina Nadine Lane and Ernest McRae, her attorney:
“Take notice that St. Francis Hospital and School of Nursing, Inc., intends to and does hereby appeal to the Supreme Court of the State of Kansas, from the orders, decisions and judgments of the District Court of Sedgwick County, Kansas, entered in the above entitled action as follows:
“1. The order entered on the 9th day of January, 1962, sustaining the defendant’s demurrer to the plaintiff’s evidence.
“2. The order entered on the 19th day of February, 1962, overruling plaintiff’s motion for a new trial.” (Emphasis supplied.)
The foregoing notice of appeal, service of which was acknowledged by Mrs. Lane’s attorney, was filed with the clerk of the dis-' trict court of Sedgwick County on April 18, 1962. Subsequently certified copies of such notice and proof of service were transmitted by that official to our clerk who, on May 1, 1962, docketed the appeal as Case No. 43,164 of the Supreme Court. Thereafter the case was set for hearing on April 3, 1963. It was presented on that date to this court upon appellant’s abstract and brief and oral argument by its counsel, no appearance having been made by other parties involved on appellate review.
At the outset, and before any consideration can be given to this case on its merits, we are confronted with the question whether appellant has perfected an appeal in the manner prescribed and required by our statute (G. S. 1949, 60-3306).
The jurisdiction of this court to entertain an appeal is conferred by statute, pursuant to Article 3, Section 3 of the Constitution of Kansas and, under our repeated decisions, it is this court’s duty, on its own motion, to raise the question of its jurisdiction even though no party involved on appellate review has seen fit to do so. See Willey v. Gas Service Co., 177 Kan. 615, 281 P. 2d 1092, and the numerous decisions cited at page 616 of the opinion. See, also, Martin v. Forestry, Fish and Game Commission, 185 Kan. 796, 798, 347 P. 2d 276. Moreover, when the record discloses lack of jurisdiction by reason of noncompliance with the above cited section of the statute, it is the duty of this court to dismiss the appeal. (McGuire v. McGuire, 190 Kan. 524, 528, 376 P. 2d 908.)
G. S. 1949, 60-3306, prescribes the manner in which appeals can be perfected. Provisions here pertinent read:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court, ... A copy of such notice must he personally served on all adverse parties whose rights are sought to he affected hy the appeal, and who appeared and took part in the trial, or their attorneys of record: . . .” (Emphasis supplied.)
Since the 1909 revision of our code of civil procedure questions involving the force and effect to be given provisions of the section of the statute just quoted, arid the consequences resulting from failure to comply with their clear and unequivocal requirements, have been before this court on numerous occasions. See, e. g. In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004, which holds:
“Following White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041, and other decisions cited in the opinion of that case, it is held that an adverse party in a civil action on whom notice of appeal must be served (under G. S. 1935, 60-3306) is a party to the litigation, to whose interest it is that the judgment of the trial court be upheld, and who is interested in opposing the relief sought by appellant.
“On appeal from a judgment appointing an individual as the sole executor of the estate of a deceased person such fiduciary is a necessary party to the appeal and must be made a party thereto.
“Where necessary parties have not been joined on appeal the appellate court acquires no jurisdiction of the cause and the appeal will be dismissed.” (Syl. ¶¶ 1, 2 and 3.)
For other decisions of like import see In re Estate of Bergner, 173 Kan. 582, 250 P. 2d 781; In re Estate of Johnson, 177 Kan. 368, 279 P. 2d 271; In re Estate of Hill, 185 Kan. 421, 345 P. 2d 1011; Martin v. Forestry, Fish and Game Commission, supra; National Reserve Life Ins. Co. v. Hand, 188 Kan. 521, 363 P. 2d 447, and the numerous cases therein cited. And for what is perhaps our most recent decision, where the foregoing decisions are considered, discussed, applied and adhered to, see In re Estate of Barrier, 189 Kan. 278, 369 P. 2d 335.
Nothing would be gained by burdening this opinion with a further recital of the facts of record controlling the jurisdictional question now under consideration. All that need be said at this point is that by this appeal appellant is attempting to obtain a reversal of the trial court’s action, in sustaining Mrs. Freeman’s demurrer and in rendering judgment in her favor, on the basis of a notice of appeal, directed to and served on Mrs. Lane, another defendant in the action; and that the record on appellate review fails to disclose any service whatsoever of a notice of appeal on Mrs. Freeman or her attorney of record.
Nor would it serve any useful purpose to here labor the decisions, previously cited, to which we adhere. As applied to this case it suffices to say such decisions, when analyzed, not only warrant but compel a conclusion this court has no jurisdiction of the instant appeal and that it must be dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This appeal involves the redemption of real property sold on execution sale.
The question presented is whether the purchaser at an execution sale is entitled to be reimbursed on redemption of the property for state and federal taxes paid by the purchaser after confirmation of the sale by the court, such taxes being prior liens upon the property in question to the lien of the judgment creditor.
The material facts are not controverted and have been established either by stipulation or admission.
City property owned by Ruby Smith Petrie (appellant) was sold on execution sale on September 10, 1962, to satisfy a judgment of E. Summerfelt in the sum of $3,062.85 plus interest and costs. The purchaser at the execution sale, Gordon K. Lowry (appellee), bid the property in at $4,185 and received the sheriff’s certificate of purchase for this sum. The property was sold subject to a first mortgage, and the purchase price was sufficient to satisfy only the judgment plus interest and costs.
After the sheriff’s sale was confirmed on September 21, 1962, Lowry paid federal tax liens in the sum of $2,771.47; Jefferson county taxes in the sum of $365.27; insurance premiums in the sum of $60.50; and a first real estate mortgage held by Carl and Helen M. Smith in the sum of $8,533.15. The tax liens were prior to the judgment lien of Summerfelt.
The question involved is whether Petrie in redeeming the property purchased by Lowry at the sheriff’s sale on September 10, 1962, should pay the sum of $15,915.69, plus interest accrued, or shall be entitled to redeem at a lesser sum by excluding the amounts paid on taxes.
On redemption from the sheriff’s sale Lowry contends the amount of the taxes paid should be added onto the amount of his certificate of purchase, and Petrie contends the taxes should have been paid out of the proceeds of the execution sale.
The trial court held under the provisions of G. S. 1949, 60-3443, the redemption price should include the sums paid by the holder of the certificate of purchase to satisfy the tax liens, for a total figure of $15,915.69, plus interest at 6% for the various items paid as of the date each item was paid.
The trial court further held that even if it were not the intention of the legislature to include the payment of tax liens within the meaning of 60-3443, supra, “it is the opinion of the court that equity demands that the defendant, Ruby Smith-Petrie, should not be able to redeem said premises without paying said tax liens, and that to allow such would result in an unjust enrichment at the expense of the said holder of this certificate of purchase.”
In support of her contention that all taxes due or payable at the time of the sheriff’s sale should be paid out of the proceeds of the execution sale, the appellant cites G. S. 1949, 79-419, and Galbreath v. Drought, 29 Kan. 711. These authorities relate to judicial sales and require the court to order all taxes against the lands in question to be discharged out of the proceeds of such judicial sale. Other authorities relied upon by the appellant deal with mortgage foreclosures and partition suits and are clearly distinguishable from our present case.
Execution sales are not judicial. It is true they must be supported by a judgment, decree or order, but the judgment is not for the sale of any specific property. It is only for the recovery of a designated sum of money. The court gives no directions and can give none concerning what property shall be levied upon. It usually has no control over the sale beyond setting it aside for noncompliance with the directions of the statute. The chief differences between execution and judicial sales are that the former are based on a general judgment for so much money, while the latter are based on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the directions of a statute, while the latter are made by the agent of a court in pursuance of the directions of the court; in the former the sheriff is the vendor, in the latter the court. (National Reserve Life Ins. Co. v. Kemp, 184 Kan. 648, 655, 339 P. 2d 368; and see, Brewer v. Warner, 105 Kan. 168, 182 Pac. 411, 5 A. L. R. 385, rehearing denied 105 Kan. 591,185 Pac. 889.)
G. S. 1949, 60-3443, provides in part:
“During the period allowed for the redemption of real property from sale under execution, special execution or order of sale, the holder of the certificate of purchase may pay the taxes on the lands sold, insurance premiums on the buildings thereon, and interest or sums due, upon any prior lien or encumbrance thereon; and upon the redemption of the premises from such sale the holder of the certificate shall be entitled to repayment of all sums thus paid by him, together with interest thereon. The terms of redemption shall be in all cases the reimbursement of the amount paid by the then holder of the certificate of purchase, added to his own claim, and including all sums paid by him for taxes, insurance premiums, and interest or sums due, as shown by receipts or vouchers to be filed in the office of the clerk of the district court, with interest, together with costs, subject to the exemption contained in the next section. . . .”
We have been cited to only one case in which redemption was attempted for less than what the purchaser paid out. In Blurton v. First Nail Bank, 127 Kan. 304, 273 Pac. 401, the purchaser of property at the execution sale bought subject to a mortgage and neglected to file his receipt showing that he had paid the interest on the mortgage. The court quoted 60-3443, supra, as it appeared in the Laws of 1925, with approval and said of the redeeming bank:
“. . . If the bank obtains the land without payment of that interest it gets it for less than it ought to pay. The purchaser of the land at the sheriff’s sale paid that interest which was a lien on the land, which in turn would have been subject to foreclosure under the mortgage if the interest had not been paid. Under the statute, he had a right to pay that interest. The purchaser, C. R. Blurton, did not comply with the statute in filing his receipts, but outside of the statutory provision the situation is such that equity demands that the bank should not obtain the land without paying the interest that had been paid on the mortgage.” (p. 306.)
In the case at bar the appellant agreed by stipulation that the insurance premium paid by Lowry should be allowed. Under the statute it is in the same category as the taxes or sums due upon any prior lien or encumbrance thereon.
We think the foregoing statute (60-3443, supra) is clear and requires no construction for application to the facts of the instant case. The receipts for the payment of taxes by Lowry were filed with the clerk of the district court on September 21 and 22, 1962. The sale was confirmed on the 21st day of September, 1962, and the proceeds were not disbursed by the clerk until the 28th day of September, 1962, at which time she found no taxes due.
The trial court properly applied the provisions of 60-3443, supra, by including the amount paid by the purchaser to satisfy prior tax liens in the total sum for which the property could be redeemed.
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The opinion of the court was delivered by
Fatzeb, J.:
This is an appeal from an order sustaining the appellee’s demurrer to the appellant’s counterclaim on the ground that the district court had no jurisdiction of the counterclaim.
The pertinent facts are briefly stated. Gerhard Meyer and the appellee, Doris M. Biles, were involved in an automobile collision at an intersection of two county roads in Marion County, which resulted in Meyer’s death. Thereafter, letters of administration were issued upon the decedent’s intestate estate in Marion County and the appellant, Anton A. Meyer, was appointed administrator. Within the period of the nonclaim statute (G. S. 1949, 59-2239) tire appellee filed her petition for allowance of demand against the decedent’s estate, alleging that the automobile collision resulted from the negligence of the decedent and that she suffered damages, mainly to her automobile, in the total amount of $612.37.
Thereafter, the appellee filed a petition to transfer her claim to the district court pursuant to G. S. 1961 Supp., 59-2402a and G. S. 1949, 59-2402b, and the probate court entered its order transferring the petition to the district court.
The appellant timely filed an answer and counterclaim to the appellee’s petition then pending in the district court. The answer denied the decedent was negligent in the manner alleged by the appellee and that any act or omission on the decedent’s part was a proximate cause of any injury or damage to the petitioner. The answer further alleged that the appellee was negligent in failing to maintain a proper lookout and in failing to slow her vehicle in order to avoid the decedent’s automobile, and contained other allegations not here material. The counterclaim alleged that the decedent was survived by his widow and their eleven children; that the appellant, as administrator, filed the counterclaim pursuant to G. S. 1961 Supp., 60-3203, for their respective benefits in accordance with the wrongful death statute; that the appellee’s automobile was negligently operated in six specific respects, which were the direct and proximate cause of the collision resulting in personal injuries to the decedent which were fatal; that hospital and funeral expenses were incurred in the total amount of $1158.27 which the decedent’s estate was obligated to and did pay, and that the widow and eleven children suffered damages in the sum of $25,000 for the decedent’s wrongful death. The prayer was that the administrator recover $26,158.27.
The district court sustained the appellee’s demurrer on the ground that it had po jurisdiction of the counterclaim, and the administrator has appealed.
The appellant contends that when the appellee filed her claim in the probate court she was attempting to take assets out of the decedent’s estate and that the probate court had jurisdiction of her claim; that upon transfer of her petition for allowance of demand, the district court had full authority and jurisdiction to hear all matters pertaining to the controversy as though the action had been originally commenced therein, including the counterclaim for damages for wrongful death arising out of the same accident.
The appellee advances two arguments to sustain the ruling of the district court. First, that the district court was without jurisdiction of the subject matter of appellant’s wrongful death action when filed as a counterclaim in a proceeding commenced by appellee in the probate court to recover on a claim against the decedent’s estate which was thereafter transferred to the district court pursuant to G. S. 1961 Supp., 59-2402a, G. S. 1949, 59-2402b and 59-2408. The basis of the argument is that the transfer of appellee’s claim from the probate court to the district court conferred no greater jurisdiction as to subject matter on the district court than the probate court had originally, and that since the appellant’s counterclaim was outside the jurisdiction of the probate court, it was likewise outside the jurisdiction of the district court upon transfer. The appellee relies upon 1 Bartlett, Kansas Probate Laws and Practice (Rev. Ed.) § 93, pp. 88, 89, § 144, pp. 149, 150, § 142, p. 146, and In re Estate of Crump, 161 Kan. 154, 166 P. 2d 684. Second, that under the wrongful death statute the administrator of the estate brings the action for the “exclusive benefit” of the surviving spouse and children, if any, or next of kin; hence, in the instant case the administrator is not bringing his counterclaim in his capacity as representative of the decedent’s estate but is acting in his capacity as representative of the surviving spouse and children; that at most he is a statutory plaintiff and the amount recovered does not become an asset of the estate but enures to the “exclusive benefit” of the surviving spouse and children (Crudney v. United Power & Light Corp., 142 Kan. 613, 51 P. 2d 28), and it is improper for the wrongful death action to be filed as a counterclaim in an action to recover on a claim against the decedent’s estate.
For reasons hereafter set forth, we are of the opinion the appellee’s contentions cannot be sustained.
G. S. 1961 Supp., 59-2402a, relates to the transfer of certain matters pending in the probate court to the district court and was not a part of the probate code when it was drafted by the Judicial Council and enacted by the legislature in 1939. The statute was enacted in 1945 (L. 1945, Ch. 237) and was designed to avoid duplicate trials upon matters which would eventually have to be determined in the district court on appeal. (Kansas Judicial Council Bulletin, April 1945, Nineteenth Annual Report, Part 1.) It provides that when a petition is filed in the probate court with respect to the items enumerated, any interested party may request the transfer of such matter to the district court. The following section (G. S. 1949, 59-2402b) provides that upon the filing of such request, the probate court shall deliver to the district court the file in the matter and the issues shall be heard and determined in the district court as on appeal pursuant to G. S. 1949, 59-2408. However, the latter section prescribes the power and jurisdiction of the district court upon appeal, or, as here, upon transfer of the appellee’s claim, and reads, in part, as follows:
“Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction of the matter. The district court shall allow and may require pleadings to be filed or amended. The right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by failure to file pleadings, in the probate court; nor shall the trial in, or the issues to be considered by, the district court be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court. . . ,”
Under our decisions the probate court had exclusive original jurisdiction of the appellee’s petition for damages to her automobile since the claim was to get something out of the estate (in re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879; In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818), but we cannot agree that upon transfer of her petition to the district court, that court was limited in the exercise of its jurisdiction to merely that of what could have been exercised by the probate court. The plain unambiguous language of the statute negates any such idea, and our decisions are uniform in holding that where a matter pending in the probate court is appealed to the district court, or, as here, where it is properly transferred pursuant to G. S. 1961 Supp., 59-2402a, G. S. 1949, 59-2402b and 59-2408, the district court shall exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in the district court and as though such court had original jurisdiction in the matter. (Egnatic v. Wollard, 156 Kan. 843, 849, 855, 137 P. 2d 188; In re Estate of Pallister, 159 Kan. 7, 152 P. 2d 61; In re Estate of Paronto, 163 Kan. 85, 180 P. 2d 302; Wetzell v. Wetzell, 167 Kan. 6, 204 P. 2d 768; Charvat v. Moore, 167 Kan. 336, 205 P. 2d 980; In re Estate of Michaux, 171 Kan. 417, 421, 233 P. 2d 510; In re Estate of Teeter, 184 Kan. 567, 569, 570, 337 P. 2d 691.) In In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1, it was held:
“The probate code fixes its own procedure, and during the pendency of a proceeding in a probate court the only pleadings necessary or proper are a petition and a written defense. But once such a proceeding reaches the district court, either by appeal or otherwise (in the instant case by transfer pursuant to G. S. 1957 Supp., 59-2402a), G. S. 1949, 59-2408, is construed and held to mean that the district court shall have and exercise the same jurisdiction and power as though the controversy had originally been commenced in that court and the pleadings authorized to be filed or amended are the same as those referred to in G. S. 1949, 60-703 of the code of civil procedure, and the right to file new pleadings shall not be abridged or restricted by the pleadings filed, or by the failure to file pleadings, while the proceeding was pending in the probate court.” (Syl. ¶[ 1.)
The case of In re Estate of Crump, supra, relied upon by appellee is not helpful to her. There, this court considered the power and jurisdiction of the probate court to annual a marriage and the power and jurisdiction of the district court on appeal, and it was held that the probate court had no jurisdiction to entertain such an action and despite the fact that the action might have been filed as an original action in the district court, that court on appeal did not have jurisdiction to consider the matter. It is evident that is not the situation here. In the instant case, the probate court had full power and jurisdiction to adjudicate the appellee’s claim against the decedent’s estate and the matter was rightfully transferred upon her petition to the district court. In the Crump case reference was made to Section 59-2408 as amended by the Laws of 1945, and the court distinguished between situations where the probate court did and did not have jurisdiction of the subject matter and the jurisdiction of the district court on appeal where the probate court had jurisdiction, and it was said:
“. . . the whole general purpose of the section seems clear — to give to district courts upon appeal from probate courts, in cases where the latter courts have original jurisdiction either exclusive or concurrent, full and complete power to try the case de novo, on its merits. The right to file new pleadings may not be abridged or restricted in the district court, 'or shall the trial in, or the issues to be considered by, the district court be abridged or restricted by any failure to appear or by the evidence introduced, or the absence or insufficiency thereof, in the probate court’ (G. S. 1943 Supp. 59-2408 as amended by Laws 1945, ch. 237, sec. 5). These provisions give wide and important significance to section 59-2408 in its entirety. Any action in which the probate court had jurisdiction may now be tried de novo, upon appeal, in the district court without limitation, as fully as though the action had been there begun.” (Emphasis supplied.) (1. c. 162.)
It is manifest that upon transfer of the appellee’s claim to the district court, that court has general jurisdiction of the controversy as though it had originally been commenced therein, and the trial of the case is to be conducted in conformity with requirements of the code of civil procedure. (In re Estate of Michaux, supra.) The appellant had the right to file an answer to appellee’s claim (G. S. 1949, 60-703; In re Estate of Shirk, supra) and the issues to be raised were not limited by his failure to appear or file pleadings in the probate court. Having filed an answer, G. S. 1949, 60-710, was applicable with respect to the contents thereof. That section reads:
“. . . The defendant may set forth in his answer as many grounds of defense, counterclaim, setoff and for relief as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” (Emphasis supplied.)
G. S. 1949, 60-711, relates to counterclaims, and reads:
“The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom several judgment might be had in the action, and arising out of the . . . transaction set forth in the petition as the foundation of the plaintiffs claim, as connected •with the subject of the action. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein.” (Emphasis supplied.)
In Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, 237 P. 2d 218, we construed Sections 60-710 and 60-711, and it was held:
“The purpose and intent of the counterclaim statute is to permit a full determination or settlement in a single action of all controversies properly within the purview of the statute in order that a multiplicity of suits may be avoided.
“By virtue of G. S. 1949, 60-102, the provisions of the code of civil procedure and all proceedings thereunder must be liberally construed with a view to promote their object and assist the parties in obtaining justice. This command includes proceedings under the counterclaim statute.” (Syl. fir 8, 9.)
In the instant case the appellant’s counterclaim is one existing in favor of him and against the appellee upon which a judgment might be had in his favor against the appellee in an action brought by him for that purpose. To say that the counterclaim did not arise out of the occurrence set forth in the appellee’s claim is to close one’s eyes to the obvious. (Comley-Neff Lumber Co. v. Ross, 190 Kan. 734, 739, 378 P. 2d 178.) The matters involved in the appellee’s claim and in the counterclaim were part and parcel of the same accident and the issue to be tried was who was guilty of negligence which was the proximate cause of the accident. If the accident was caused solely by the negligence of the decedent, the appellee may recover. If it was caused solely by the negligence of the appellee, the appellant as administrator may recover. If both the appellee and the decedent were at fault, neither may recover. Roth appellee’s claim and the counterclaim are actions in tort, and the purpose of the counterclaim statute (Sec. 60-711) is to permit a full determination in a single action of all controversies so that the matter may be settled in one trial and a multiplicity of suits avoided. If, as the appellee contends, there must be two trials instead of one, the result may be that on the trial of the appellee’s claim it would be determined that the administrator’s decedent was at fault and she be allowed to recover the value of her automobile, and on the trial of the administrator’s action for wrongful death, it may be determined that the appellee was at fault and the administrator allowed to recover. A more palpable miscarriage of justice could not be imagined.
Our wrongful death statute (G. S. 1961 Supp., 60-3203) provides that when the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter or his personal representative if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. It is true, as the appellee contends, that if the appellant administrator prevails, the proceeds of the recovery would not go into the decedent’s estate, but what difference does that make. While the appellant as the personal representative of the decedent is in effect a statutory agent to collect and distribute the damages recovered, nonetheless he is the only party who may prosecute the action. Had the appellant claimed damages to the decedent’s automobile could it be doubted that he could file a counterclaim under Sec. 60-711? The only difference in such a situation would be that if he recovered for the death of his decedent he would distribute the money as the court would direct under the wrongful death statute whereas if he recovered for damages to the automobile, the amount recovered would go into the estate for the benefit of creditors or be distributed by the statutes of descents and distribution. In either case, the appellant, as administrator, would not be claiming in his own right. He is the statutory plaintiff being the nominal party in both cases, and trustee in both, for the beneficiaries of the amounts recovered. The fact that a recovery on the counterclaim might be distributed differently from ordinary assets of the estate is not material. That does not affect the issue to be tried, which is, who was negligent? If the appellee recovers, her judgment would be paid by the decedent’s estate in the manner provided by law. If the appellant recovers, the court follows the matter up and directs that it be distributed to the surviving widow and children in the same manner as personal property of the decedent. The question of who will ultimately benefit should not affect the right to maintain the counterclaim because it does not affect the issue to be decided. Since the right of either party to recover rests upon the same state of facts, no solid reason appears why the appellant should not be allowed to file the counterclaim as a part of his answer to the appellee’s claim presently pending in the district court of Marion County and have the rights of the parties determined in that action. (Hoffman v. Stuart, 188 Va. 785, 51 S. E. 2d 239, 6 A. L. R. 2d 247.)
The judgment is reversed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiffs from an order of the Shawnee district court transferring the cause from such court to the district court of Sedgwick county for want of venue, and from the subsequent order of the Sedgwick district court dismissing the cause without prejudice for want of jurisdiction either of the parties or the subject matter.
The defendant highway commission cross-appeals from the trial courts order entered by the Shawnee district court in which the cause was originally filed.
As gleaned from the petition, the alleged facts were that plaintiffs were the owners and operators of the Top Hat Motel and the land on which the motel was situated, which was located on the south side of highway 54 immediately west of the city of Wichita, Sedgwick county, Kansas. For at least four years plaintiffs had had free, unlimited, and unrestricted direct access to and from the highway. In 1959 the highway commission constructed a parallel frontage road on the south side of highway 54, which was along the north side of plaintiff’s property, eliminating plaintiff’s direct access to the highway from their motel property. The remainder of the petition alleged in further detail how plaintiffs were damaged and asked for judgment of $75,000 for such damages. They do not ask for determination of any right, title, or interest in and to any particular land or do they seek injunctive relief.
Summons was served upon Addison H. Meschke, director of highways, on August 24, 1961, and on September 22, 1961, the commission filed a lengthy motion to make more definite and certain and to strike. At the conclusion of the hearing on the above motion the Shawnee district court ordered the case trans ferred to the Sedgwick district court. In its formal order thereon the trial court stated that at the conclusion of the hearing on the motion to make more definite and certain and to strike, it had announced it would not rule on the motion but an order would be made to change the venue of the cause from the Shawnee district court to the Sedgwick district court.
Since no court reporter or other person was present to record the foregoing proceedings, an affidavit was filed in the Shawnee district court on behalf of the commission stating that at the conclusion of the arguments on the motion to make more definite and certain and to strike, the court refused to rule on the motion but instead, on its own motion and without hearing any evidence and without an application for change of venue having been made by either party to the action, ordered the venue changed from Shawnee county to Sedgwick county. The trial court’s only stated reason for so doing was that the land involved is situated in Sedgwick county and the court felt that is where the case should be tried.
After the files were transferred to Sedgwick county, the commission filed a motion to dismiss the case stating this was an in personam action, and under G. S. 1949, 60-511, venue had been improperly transferred, and further, that the Sedgwick district court did not have jurisdiction of the parties or the subject matter. This motion was sustained by the Sedgwick district court and the cause dismissed without prejudice at the cost of plaintiffs. Hence this appeal.
On appellate review both parties frankly and conclusively agree this is an in personam action and the only forum available to plaintiffs for such cause is the district court of Shawnee county.
As prescribed in Shields v. State Highway Commission, 178 Kan. 342, 286 P. 2d 173, plaintiffs properly served the state director of highways:
“Service of written notice upon the director of highways within the time and manner specified in G. S. 1949, 68-419, is a prerequisite to the maintaining of an action to recover damages thereunder.” (Syl. ¶[ 2.)
Our attention is directed to a number of opinions of this court, and we shall hereafter mention a few of them, relating to the first question presented in this appeal as to whether the venue of the cause of action rested exclusively in the district court of Shawnee county and the order of transfer by that court was, therefore, void. (Verdigris River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, 86 P. 2d 592; Olsen v. Lamber, 158 Kan. 94, 145 P. 2d 159; Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334; Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186.) The opinion in the Dugger case, where the venue was properly placed in the district court of Shawnee county, included a discussion of jurisdiction and it was there stated:
“This is an action ab initio for recovery of money because the landowner has lost property or rights therein (which he aEegedly originaEy owned and possessed) by reason of the highway development above set out and thus there can be no issue of his and the commission’s respective interests in the land.” (p. 320.)
In the Verdigris River case we find the following cardinal rule:
“The venue of an action against the state highway commission is in Shawnee county, except as to those matters in which the legislature has specificaEy provided an action against it may be brought elsewhere.” (Syl. ¶ 2.)
On page 194 of the; foregoing opinion the highway commission was identified as an arm of the state and the discussion therein mentioned other actions that might be brought against the commission in some county other than Shawnee, but an in personam action was not included therein. Neither is such an action included under G. S. 1949, 60-501, having to do with actions in rem, wherein three specific types of action are set out. The Olsen and Atkinson cases are to the same effect as the Verdigris River and Dugger cases, supra, and we think it unnecessary to extend this opinion by reiterating the substance of those opinions. While there may be other reasons why the Shawnee district court erred in ordering the transfer, we think it sufficient to say that under the above authorities the full and exclusive jurisdiction in this in personam action is in the Shawnee district court and the order of that court made upon its own motion is void. The result is the action still pends in the Shawnee district court. The Sedgwick district court’s order of dismissal, therefore, cannot stand and in furtherance of justice we are compelled to reverse such order with directions to transfer the records and files back to the Shawnee district court for further proceedings since that is where the jurisdiction and venue properly lie. It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by a private detective against a divorced man for services performed under a contract independently made by the man s wife prior to the divorce. The trial court sustained a demurrer to the petition and appeal has been duly perfected.
The question presented is whether detective services for the wife were “necessaries” for which the husband is presumed to have pledged his credit.
On the 12th day of October, 1961, Virgil Chipp, d/b/a Confidential Investigation Bureau (appellant) filed an action .in the district court of Sedgwick County, Kansas, against Howard T. Murray (appellee). Insofar as the petition is material to the issue herein, it alleged:
“That on or about the 23rd day of May, 1960, Mrs. Feryl A. Murray engaged the Plaintiff to check the reputation, character, assets and activities of her husband, the Defendant, Howard T. Murray, and to secure information and data necessary for use in the efficient preparation and presentation of evidence and necessary for the protection of the financial and property rights of herself and their minor children during the hearings in and trial of a divorce suit which she later filed against Howard T. Murray in the District Court of Sedgwick County, Kansas, on September 22, 1960, being case number B-4610.
“That the employment of a detective was particularly necessary for Mrs. Murray as significant information regarding Howard T. Murray’s reputation, character, assets and activities was largely, if not entirely, unknown to her and as she was not possessed of the ability, training or equipment necessary to gather this information.”
Near the end of the petition it was alleged:
“That the services of the Plaintiff were vital, necessary and essential for the protection of the property rights of herself and the minor children and the protection of the emotional and financial security of herself and the minor children.”
It was alleged the plaintiff continued the performance of these services until the 5th day of June, 1961, when Mrs. Murray was granted an absolute decree of divorce from Howard T. Murray; and that Mrs. Murray paid the plaintiff a retainer fee of $100 on the 24th day of May, 1960, and an additional $280 on the account. The balance remaining due and unpaid and for which suit was filed against the defendant, after repeated demands, was $4,118, which 'is alleged to have been due on the 5th day of June, 1961, the date of the rendition of the divorce.
No allegation is made that the trial court was in any way confronted with this indebtedness in the divorce action. (See, Murray v. Murray, 189 Kan. 679, 371 P. 2d 125.)
There is no Kansas case law in point, and very little in other states.
The only case law available holds that unless the wife is left destitute, and the services of a detective are necessary to secure necessities for herself and children, the husband is not chargeable with the cost of the services of a private detective independently employed by the wife. (Lanyons Detective Agency v. Cochrane, 240 N. Y. 274,148 N. E. 520; and Dawson v. Greenberg, 169 N. Y. S. 2d 143; and see, 17 Am. Jur., Divorce and Separation, § 631, p. 706.)
No allegation is made in the petition herein that the wife was left destitute, or that the detective’s services were necessary to obtain necessities to support the wife or children. This is not the theory of the appellant’s case, and we do not, therefore, pass upon this point.
The appellant relies on Gossett v. Patten, 23 Kan. 340. There a husband sued his wife for divorce, charging her with committing acts derogatory to her character, and it was necessary, in order to protect her character and good name, for her to employ counsel to defend her. Counsel so employed performed services charging them to the husband. The wife had no estate or means to pay for the services. When she applied to the court in the divorce case for the allowance of alimony pendente lite, including suit money, the husband dismissed the action before the court rendered its decision on her application. It was held a subsequent action by the wife’s attorney before a justice court for the value of his services necessarily rendered in the divorce action was proper, the court saying:
. . Of course, where the services are unnecessary, or where the wife is able to pay for them, or where an allowance has been made for them, and probably where the wife is in the wrong, such an action could not be maintained. But this is not one of such cases. This case comes under the rule of requiring the husband to pay for necessaries furnished the wife where the husband without good cause has failed or refused to furnish them himself.” (pp. 342, 343.)
The appellant states few husbands would be willing to furnish money to a wife for detective fees to his own personal detriment. He then argues:
“• . . Without the credit of her husband, Mrs. Murray could not have obtained the advantages of the appellant’s investigative services, no more than she could have obtained the sendees and derived the advantages of competent counsel. Both the attorney and the private detective have a role in the preparation and conduct of a law suit. Perry Mason and Paul Drake seem in point. Although neither is a party to the suit, the attorney as an officer of the court and drafter of pleadings and conductor of the course of litigation can secure, and commonly does, fee allowances in the case. The detective is relegated to compensation by the husband, appellee, in a separate action or to payment by the divorced wife. If payment is not forthcoming from the wife then his course is solely against the husband, appellee herein.”
The appellant contends that a progressive, realistic interpretation of G. S. 1949, 60-1507, warrants the inclusion of detective fees for services rendered a wife in a divorce suit on the ground that detective fees are as much a “necessity” as attorney fees.
The statutory authorization requiring a husband to pay a reasonable attorney fee for the wife’s attorney in a divorce action is found in G. S. 1949, 60-1507, as follows:
“After a petition has been filed in an action for divorce and alimony, . . . the court, . . . may make such order relative to the expenses of the suit as will insure to the wife an efficient preparation of her case; and on granting a divorce in favor of the wife or refusing of the application of her husband, the court may require the husband to pay such reasonable expenses of the wife in the prosecution or defense of the action as may be just and proper, considering the respective parties and the means and property of each. . . .”
First it must be noted the statute authorizes the court to make a fee allowance only in divorce cases. This is not a divorce case but an independent action. We think the plain interpretation of the statute discloses that it has no application to fees for a detective. Here the services of the detective were engaged more than a year prior to the divorce decree and long prior to the filing of the divorce action.
We think it unnecessary to go into a full discussion as to what constitutes “necessaries.” (See, 26 Am. Jur., Husband and Wife, § 375, p. 972.) Generally, it may be said necessaries include those things needed and suitable to the rani and condition of the spouses and the style of life they have adt ,ied. What necessaries are in kind and amount is to be determinad in each case by the means, ability, social position and circums' mees of both husband and wife.
The implied authority of the wife, whei« it exists, to pledge the credit of her husband seems to arise from the marriage relation itself, if not as an incident essential to its preservation, certainly as a consequence of its continued existence, and not as a power reserved for its destruction.
We hold in the eyes of the law the services of a detective to unearth the reputation, character, assets and activities of a husband at the instance of the wife is not a necessity for which the husband will be presumed to have pledged his credit by reason of the marriage relationship.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a tort action for damages brought on the theory of trespass. A summons was issued by the clerk of the district court directing the sheriff to notify the defendants, Runft and the “North Central Kansas Electric Cooperative, Incorporated,” of the suit. The trial court on motion of the “N. C. K. Electric Cooperative, Inc.,” appearing specially, quashed service of summons upon it, whereupon the plaintiffs duly perfected an appeal.
The basic question presented is whether the summons as served was sufficient to acquire jurisdiction over the N. C. K Electric Cooperative, Inc. in this action.
The N. C. K. Electric Cooperative, Inc. in its motion to quash service upon it assigned the following reasons: (1) That it had been sued under the wrong name; (2) that the clerk of the district court failed to type the names of the plaintiffs in the body of the summons served upon the manager of the N. C. K. Electric Cooperative, Inc.; and (8) that the deputy sheriff, who served the summons upon the manager of the N. C. K. Electric Cooperative, Inc. at its offices in Belleville, Kansas, failed to make a proper return on the summons.
The record discloses that three days prior to the running of the statute of limitations the plaintiffs, Wilma J. Rockey and George E. Rockey (appellants) filed a petition which sounded in tort for damages alleged to have resulted from fire which destroyed their country home on the 14th day of December, 1959. The action was titled “Wilma J. Rockey and George E. Rockey vs. Donald W. Runft and the North Central Kansas Electric Cooperative, Incorporated.”
The summons subsequently issued by the clerk of the district court of Republic County and served named the defendants as “Donald W. Runft and the North Central Kansas Electric Cooperative, Incorporated.” Nowhere in the summons did the names of the plaintiffs appear. The name of the plaintiffs’ attorney was, however, stated in the summons opposite the signature of the clerk, and the case number in the district court of Republic County, Kansas, was given at the heading of the summons. The summons further recited that suit was brought “For Recovery of Monetary damages in the amount of (Runft) $37,500.00 (Cooperative) $12,500.00, together with interest and costs.”
The sheriff’s return disclosed receipt of the summons on December 11, 1961, at 3:40 o’clock p. m., and service upon Runft the same day at 4:30 o’clock p. m. It was signed “Glenn Tallent Sheriff, By /s/ Paul B. Wenda, Under Sheriff.” (Emphasis added.) Immediately thereafter on the summons appears the following:
“Sheriff’s Corporation Return
“State of Kansas, County of Republic, ss.
“Received this writ, this 11th day of December, A. D., 1961, and as commanded by this Writ, I summoned the North Central Kansas Electric Cooperative, Incorporated by delivering to Everett L. Ledbetter, Manager, Personally, the _ for and on behalf of said Corporation, at its office and usual place of business, in Republic County, Kansas, a copy of the Summons herein.
(Printing crossed out)
“Dated this 11th day of December, 1961.
Glenn Tallent Sheriff
By /s/ Paul B. Wenda_ Sheriff”
The summons, bearing the above return, but bearing no caption showing either of the plaintiffs’ names, was filed with the clerk of the district court on December 12, 1961. Thereafter on the 9th day of January, 1962, the N.C.K. Electric Cooperative, Inc. (appellee) filed its duly verified motion to quash service of summons by making a special appearance.
At the hearing on the motion the appellee, in support of its contention that it could be sued only in its corporate name (citing G. S. 1949, 17-4604[ffl]), introduced as evidence a duly certified copy of the articles of conversion filed with the secretary of state on the 2nd day of March, 1943, by which the appellee came under the Kansas Electric Cooperative Act. This document disclosed the appellee’s name and address prior to its conversion into a cooperative was “The North Central Kansas Rural Electrification Cooperative Association, Inc., Belleville, Kansas,” and that subsequent thereto its name was “N.C.K. Electric Cooperative, Inc.” and the address of its principal office was to be “Belleville, Kansas.”
The appellants, on the other hand, without filing an affidavit or introducing evidence, argued to the trial court that the appellee’s name on the articles of incorporation filed in the register of deeds office of Republic County, Kansas, does not disclose the name of the appellee to be “N.C.K. Electric Cooperative, Incorporated;” and that the change in its corporate name was never re-registered in the county in which the original articles were registered, namely Republic County, Kansas, which is also its principal place of business, in accordance with G. S. 1949, 17-2804 and 17-4207.
The trial court denied the appellants’ oral motion to amend the summons and sustained the appellee’s motion to quash, holding in substance that no summons had been issued for the appellee and there was no return upon the appellee to amend. The trial court also held the summons defective because the names or identity of the plaintiffs bringing the action was not apparent from any part of the summons.
The appellee concedes the defects in the officers return on the summons could have been cured by amending the return to make it speak the truth, had the trial court found such amendment to be in the furtherance of justice. The alleged defects on this point specified in the appellee’s motion to quash are the failure of the return to show (1) the time of service upon the appellee (See, G. S. 1949, 60-2508); (2) affirmative compliance with G. S. 1949, 60-2506 and 60-2518; and (3) compliance with the provisions of G. S. 1949, 60-2506 in that the corporate return did not disclose Paul B. Wenda was a deputy and the return is not verified. (See G. S. 1949, 60-3817 and 19-803.)
The appellee states if the foregoing errors in, and omissions from, the return had been the only defects, the Rial court would have permitted an amendment to make the return speak the truth, but the Rial court found the summons itself to be defective and justice would not be furthered by correcting a return on a void summons.
By reason of the foregoing concession we shall treat only the first two points specified in the motion to quash.
Did failure to sue the appellee in its correct corporate name void the service of process upon the appellee?
This point was raised by the appellee at the first opportunity, and insofar as the record discloses the appellee has waived nothing.
The appellee contends the motion to quash service “told the appellants in detail what was wrong with the summons while they still had time to save themselves according to the sixty-day grace period allowed by the proviso in G. S. 1949, 60-308.” It is therefore argued the appeal herein is from a final decision of the lower court only because the appellants neglected to exercise their statutory rights in time, which in turn has caused the bar of the statute of limitations to operate against them.
We consider the foregoing point immaterial to a determination of the issues on appeal.
G. S. 1949, 60-759 provides in part:
“The court or judge may, before or after judgment in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, . . . when such amendment does not change substantially the claim or defense; . . .” (Emphasis added.)
We are confronted with facts which disclose that the proper officer of the appellee was served with summons, but the appellee was named as “North Central Kansas Electric Cooperative, Incorporated,” whereas it should have been named “N. C. K. Electric Cooperative, Inc.” It is apparent from the record “N. C. K.” represents the initials for “North Central Kansas.” This is the primary discrepancy. Another discrepancy is “Incorporated” as distinguished from its abbreviation “Inc.”
The appellee argues that when used as part of the name of a general corporation the statute does not seem to recognize “Incorporated” and its abbreviation as being interchangeable (G. S. 1961 Supp., 17-2802 A.), and the name of an electric cooperative may not end with the word “Incorporated.”
G. S. 1949, 17-4605 reads in part:
“The name of a [electric] cooperative shall include the words ‘electric’ and ‘cooperative,’ and the abbreviation ‘Inc.’ ” . . . (Emphasis added.)
We regard the incorrect use of the word “Incorporated” in the name of an electric cooperative, as distinguished from the correct use of the abbreviation “Inc.,” to be immaterial and of such a technical nature as to warrant no further discussion under the facts and circumstances here presented.
The question therefore resolves into the difference between “North Central Kansas” and “N. C. K.,” under such facts and circumstances as to indicate that the latter is merely the initials or a contraction of the former. The subject of contractions in trade names of corporations, as distinguished from the correct names, received some attention in American Fence Co. v. Gestes, 190 Kan. 393, 375 P. 2d 775.
It could hardly be said that an amendment to the petition and process in the instant case, correcting the mistake in the appellee’s name, would “change substantially the claim or defense.” If, however, the service upon the appellee is void because the appellants used the incorrect name of the appellee, then it could not be corrected by amendment.
The appellee relies upon G. S. 1949, 17-4604 which says “A cooperative shall have power: (.a) To sue and be sued in its corporate name." (Emphasis added.) (See, also, G. S. 1949,17-4605.)
The only statement in our cases directly in point is a dictum found in Surety Co. v. Casualty Co., 97 Kan. 275, 155 Pac. 59, where the court said:
“. . . If the company objected to being sued in the wrong name it should have filed a plea in abatement or called the court’s attention to the mistake in some way. Failing to do so or to disclose its true name, it waived the misnomer. . . . The court would have authorized an amendment correcting the mistake if its attention had been challenged to it. . . (pp. 277, 278.) (Emphasis added.)
It has been recognized that defective process is of two kinds, void and voidable. When voidable merely, the defect may generally be remedied by an amendment, but when the defect is of such nature as to render the process void, it is not amendable because it is a nullity and there is nothing to amend. Where the process is merely voidable it is valid until attacked, and an amendment is allowable where the process, although irregular, is sufficient to give jurisdiction — where it can clearly be determined from the process itself what was intended.
A case touching upon the subject is Butter Tub Co. v. National Bank, 115 Kan. 63, 222 Pac. 754. There a twofold question was presented: (1) Whether the proceedings were void because the plaintiff, in its petition, affidavit for garnishment, and affidavit for service by publication, incorrectly alleged that “ ‘The Vail Cooper age Company’” was a corporation; and (2) whether the inter-pleader (the garnishee defendant) waived such defects by submitting itself to the jurisdiction of the court and asking for affirmative relief, when the principal defendant (The Vail Cooperage Company) had not entered an appearance. In the opinion the court said:
“In some courts such an error as described here is fatal to the proceedings, as not bringing the right defendant into court, or as suing the wrong party. In those jurisdictions an amendment to correct the defect is deemed bringing in new parties, and is, therefore, not allowed. The weight of authority and the better reasoning, however, appears to support the theory that the plaintiff may amend his pleading or process in order to properly designate the defendant. The amendment may be made in furtherance of justice when the amendment does not change substantially the claim or defense (Civ. Code 140; R. S. 60-759.) It cannot here be said that the wrong party was sued. There was no misdescription in the name of the defendant. Plaintiff’s error was in alleging ‘The Vail Cooperage Company,’ to be a corporation. There was no corporation under the name of ‘The Vail Cooperage Company.’ The publication notice was directed, not to a corporation, but to ‘The Vail Cooperage Company.’ There was no change of parties when plaintiff amended its petition. It is a salutary rule that cases should be determined on their merits, rather than on technicalities of procedure — on matters of substance, rather than matters of form.” (p. 67.) (Emphasis added.)
We think the decisions of Butter Tub Co. v. National Bank, supra, and Surety Co. v. Casualty Co., supra, have charted the course of our law on the facts presently confronting us.
As early as Woods v. Nicholas, 92 Kan. 258, 140 Pac. 862, amendments for the purpose of correcting mistakes or defects in pleadings, that would promote justice and not substantially change the claims or defenses of parties, were recognized by the court as those which should be liberally granted.
Recently in Heath v. Martin, 187 Kan. 733, 359 P. 2d 865, in discussing the application of G. S. 1949, 60-759, it was said:
“The decisions of other jurisdictions, and G. S. 1949, 60-759, and our decisions thereunder, show that the better rule, as above stated, is that under the proper circumstances amendments to pleadings, processes, or proceedings before or after judgment, may and should be made in furtherance of justice. ■ ■ •” (pp. 739, 740.) (Emphasis added.)
A substitution of the names of guardians was presented in McDonald v. Carlson, 182 Kan. 480, 322 P. 2d 798. Regarding the motion to amend the name it was said the trial court had much discretion in such a situation, and in the furtherance of justice it must be ever vigilant to guard the rights of the parties. It said “Making the substitution order would have been merely a matter of procedure to be followed by the trial couH and we think it was incumbent upon that court to do so in this case.” (p. 487.) (Emphasis added.)
Striking the name of a person as plaintiff and substituting the correct name, where mistake is shown, has been held to be within the power of the district court, in the furtherance of justice. (Weaver v. Young, 37 Kan. 70, 14 Pac. 458.) Similarly, substituting the real owner of the note and mortgage as plaintiff in place of the payee of the paper, in whose name the action has been brought by mistake, has been held proper. (Service v. Bank, 62 Kan. 857, 62 Pac. 670.)
In the motion to quash the appellee concedes that its manager was personally served with summons at the appellee’s office and principal place of business in Belleville, Kansas, on December 11, 1961. It is clear from the summons who was to be served with process. An intention to serve the appellee was unmistakably apparent, since there was no other R.E.A. company in the vicinity, and certainly no company supplying electricity to farmers in the area of Scandia, Kansas, or to the farm home of the appellants, other than this appellee.
We hold that failure to sue the appellee in its correct corporate name, under all of the facts and circumstances here presented, was not fatal to the service of process upon the appellee, and the mistake was subject to correction by amendment of the process upon motion of the appellant under 60-759, supra.
Was the failure to name the plaintiffs in the summons a defect which could not be cured by amendment after service?
G. S. 1949, 60-2501 provides in part:
“The summons shall be . . . directed to the sheriff . . . and command him to notify the . . . defendants, named therein, that . . . they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, . . (Emphasis added.)
The appellee herein has not elected to waive this defect and contends the defect is fatal to the summons.
We have been cited to no Kansas decision involving the omission of the plaintiff’s name from a summons. The appellee relies upon a case from Maine which holds that such writ cannot be amended. ( Jones v. Sutherland, 73 Me. 157.) The appellee relies upon general statements in our decisions to the effect that juris-
diction over the person of a defendant can be acquired only by issuance and service of process in the method prescribed by the statute or by voluntary appearance, and that such statutory method is exclusive of any other method of service. (Butler County Comm'rs v. Black, Sivalls & Bryson, Inc., 169 Kan. 225, 217 P. 2d 1070.)
The appellee also relies upon McFadden v. Mid-States Manufacturing Corp., 175 Kan. 240, 262 P. 2d 838, where the court said:
“. . . The authorities are in accord that one of the essentials of any process is that it name the party who must respond. The process must show the party for whose benefit the action or proceeding has been instituted, and the party who is to be served. The naming of the defendants is a mandatory requirement. . . .” (p.242.)
The appellee argues it would not do to allow the clerk to add to the summons the plaintiffs’ names after a copy of it had been delivered to the appellee, because the delivered copy would not then be a true copy in the hands of the defendant.
We do not think the failure to name the plaintiffs in the summons in the instant case was a fatal defect. The summons gave the appellee the name of the plaintiffs attorney, the case number assigned to the case which had been filed in the district court of Republic County, Kansas, and gave sufficient information regarding the nature of the action to inform the appellee of the parties bringing the suit. If not within the appellee’s personal knowledge at the time of service, certainly the names of the plaintiffs were available to the appellee in short time by inquiry over the telephone. We fail to see how a mistake made by omitting the plaintiffs’ names from the summons, upon all the facts and circumstances here disclosed, could prejudice the rights or substantially injure the defense of the appellee. It would be ironical to say such omission was fatal when we have cases holding that a petition naming the wrong plaintiff can be amended by substituting the name of the proper plaintiff.
It was apparently recognized by the legislature that attorneys and elected officials, such as the clerks of district courts and sheriffs, would from time to time make mistakes. Realizing this fact, the legislature enacted 60-759, supra, permitting the amendment of process to correct a mistake in the name of a party when such amendment does not change substantially the claim or defense. In making application of the foregoing statute to the cases, the court has admonished that amendments should be liberally granted, to the end that such cases should be determined on their merits, rather than on technicalities of procedure — on matters of substance, rather than matters of form.
The power of discretion conferred by the provisions of G. S. 1949, 60-759, upon the trial court, is not an absolute or an arbitrary power, but a power of judicial discretion. Such discretionary power is granted under the statute in the furtherance of justice relative to the substantive rights of the parties, and not to impede justice with respect to such rights. In other words, procedural matters are designed to aid parties litigant in a court of law to resolve conflicts on the basis of their substantive rights, and they are not designed for use by a trial court to the prejudice of such rights. Refore a judgment will be reversed for refusing to permit an amendment of a pleading or process, it must affirmatively appear from the record that there was an abuse of discretion by the trial court. (Fisher v. Pendleton, 184 Kan. 322, 336 P. 2d 472, 74 A. L. R. 2d 1274.)
In our opinion the trial court abused the exercise of its power of discretion in failing to sustain the appellants’ oral motion to amend their petition by changing the name of the appellee to “N. C. K. Electric Cooperative, Inc.;” in failing to sustain the appellants’ oral motion to amend the process; and in quashing service of process upon the appellee.
The judgment of the lower court is reversed.
Parker, C. J., dissents from paragraph 3 of the syllabus and the corresponding portions of the opinion. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s order sustaining plaintiff’s motion to strike certain portions of defendant Spains answer which stricken portions, Spain contends, constitute a material defense to the allegations of plaintiffs petition and are, therefore, necessary to his presentation of a full and complete defense to plaintiffs purported cause of action.
In brief, the pertinent portions of plaintiff’s petition alleged that on January 22, 1955, Spain and Messerschmidt, a partnership, by written contract, agreed to construct, complete, and deliver a residence dwelling to plaintiff along with certain other improvements. Plaintiff completed performance of the contract on his part but defendants defaulted in the construction of the dwelling and improvements and thus made it necessary for plaintiff himself to complete performance of the contract, which he did in the following particulars:
“Concrete driveway ...................................... $350.00
“Doors on China Closets .................................. 30.00
“Glass Doors on Pass thru Window......................... 15.00
“Second Septic Tank ..................................... 292.00
“Install Deep Sink in Utility Room.......................... 25.00
“Install Utility Built-ins ................................... 75.00
“Install Bathroom Divider Glass............................ 10.00
“Install 5 Totalities at $8.00 each........................... 40.00
Total ................................................ $817.00”
The terms of the contract provided that the dwelling was to be completed by defendants on or before June 1, 1955, but the petition alleged defendants abandoned it on August 2, 1955, and plaintiff was unable to complete the dwelling for occupancy until September 24,1955. The remainder of the petition referred to damages with which we are not presently concerned.
As heretofore mentioned, part of Spain’s answer was challenged by a motion to strike. Only part of the motion was sustained by the trial court’s order and for purposes of clarification, we shall briefly summarize the portions not stricken. Spain admitted that during 1954 and 1955 he and Messerschmidt had a partnership for the purpose of constructing residences in and around Wichita. Spain did not sign the building contract in question, did not authorize execution thereof by Messerschmidt, and had no knowledge of its execution. Spain knew that in the early part of 1955 Messerschmidt had some dealings with plaintiff and Messerschmidt had commenced to build plaintiff’s home but Spain denied entering upon the construction of plaintiffs home himself. Spain had entered into a contract with the Messerschmidts and Dyes whereby he sold all. his interests to the four of them. In May, 1955, Spain conversed with plaintiff and advised plaintiff he had sold out everything to the Messerschmidts and Dyes and he had no further connection with their building contracts including plaintiff’s home. In other words, Spain was no longer Messerschmidt’s partner. Plaintiff thereupon advised Spain he knew Spain was no longer engaged in business with Messerschmidt. That he knew Messerschmidt had become a partner with L. G. Dye, and that partnership had taken over the work and obligations in connection with the building of plaintiffs home. Plaintiff was satisfied with such arrangement and he would no longer look to Spain to perform any of the terms and conditions of the contract.
The answer further stated that in June, 1955, plaintiff and his attorney had discussed the construction of plaintiff’s home with Spain and plaintiff had stated he was not looking to Spain for the construction of his home because he knew Spain had no further connection and interest in the building contract, but he was looking to Dye and Messerschmidt. If Spain had ever had any obligation to erect plaintiff’s residence, the contract had been abrogated and terminated, with which plaintiff orally agreed.
We now come to the stricken portions of the answer to the effect that after June, 1955, Spain had no information whatsoever relative to the construction of plaintiff’s home, and he had no knowledge of any default in the performance of such building contract by Messerschmidt and Dye until this action was filed on January 23, 1960. Plaintiff had never requested Spain to complete the dwelling nor had he advised Spain of any default in performance of the contract, if such did occur. Plaintiff knew L. G. Dye had paid for labor and material on plaintiffs residence and had sued Spain to recoup, but plaintiff had not refuted Dye’s claim or advised Spain that plaintiff had to finish the contract. Spain alleged plaintiffs cause of action was barred by both the three year and the five year statute of limitation but if not, then plaintiff was barred under the doctrine of laches because any cause of action plaintiff had had accrued in September, 1955. That if there had been any default Spain had no knowledge of such until the commencement of this action, and further, if any default had occurred, then Messerschmidt and Dye would have been responsible to Spain for whatever damages plaintiff might recover in this act. Had plaintiff commenced his action in proper time, or given notice to Spain of any defult, Spain could have protected himself against Messerschmidt and Dye, but by the time the present action was commenced, it was barred by the statute of limitation and Spain cannot now legally hold Messerschmidt and Dye responsible to him for any claims allowed against him. Additional reasons stated were that Messerschmidt and Dye were in such financial condition no recovery could be had against them and their whereabouts were unknown to Spain.
The above concludes the stricken portions of the answer. In the remainder of the answer Spain merely elucidated on plaintiff’s prejudicial conduct which deprived Spain of a cause of action and stated plaintiff was thereby estopped from bringing this action against Spain and that such action should be dismissed.
The record discloses defendant’s answer alleged facts to the effect that plaintiff not only knew of the subsequent agreement between Spain and the Dyes and Messerchmidts and was satisfied therewith and did not look to Spain for any damages, but in reality he looked to Messerschmidt and Dye for relief under their contract. The answer, partially in the nonstricken portions and partially in the stricken portions, also alleged further facts attempting to set up a defense of laches or equitable estoppel. Although plaintiff contends the doctrine of laches does not apply to pure actions at law, which he claims this to be, and applies only to suits in equity, our cases do not support his theory. For instance, Spradling v. Hawk, 133 Kan. 545, 1 P. 2d 268, states:
“Laches does not grow out of the mere lapse of time and will not defeat an action, unless there has been some change in the condition or relations of the property or the parties which would prejudice the rights of the adverse party.” (Syl. ¶ 4.)
In the corresponding portion of the Spradling opinion (p. 550) Harris v. Defenbaugh, 82 Kan. 765,109 Pac. 681 is cited. A reading of the Harris case indicates the question of laches was there more fully discussed and the following ruling was made:
“The doctrine of laches is founded to some extent upon the principles of equitable estoppel. Where, by reason of acquiescence or long lapse of time, there is a possible loss of testimony or increased difficulty of defense, the doctrine may be applied in the discretion of the court; but laches does not consist in mere lapse of time.” (Syl. ¶ 5.)
We have not overlooked other contentions of plaintiff. However, he would call upon this court to examine evidence that has not been introduced either in the trial court or in this court which, of course, cannot be done at this stage of the proceedings. If the matters stricken from Spain’s answer are proved by evidence on the trial of the issues, we believe such allegations will constitute a meritorious defense to plaintiff’s cause of action. See Boettcher v. Criscione, 180 Kan. 39, 299 P. 2d 806, where this court stated:
“An order sustaining a motion to strike is appealable as a final order if it determines any part or all of a lawsuit or as applied to an answer, if it in effect deprives the defendant of a meritorious defense which, if supported by evidence, would defeat plaintiff’s cause of action, or a part thereof.” (p. 44.)
The inescapable conclusion is that the order of the trial court on the motion to strike should be reversed and the cause remanded with directions to reinstate the stricken portions of the answer and proceed with the trial of the cause.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an order of the trial court denying a post-sentence motion by appellant (defendant) to set aside his plea of guilty to the crime of breaking jail and to vacate the judgment of conviction and sentence ordered thereon.
From the record presented by defendant it is difficult to determine what relief he seeks or through what legal procedure he intends to achieve such relief. The trial court accepted his plea of guilty, found him guilty of jail break, and sentenced him to confinement in the state penitentiary for a term of not to exceed three years as provided by G. S. 1949, 21-735. The state filed a motion challenging this court’s jurisdiction and seeking dismissal of the appeal, which motion was denied by this court with permission to renew at the hearing on the merits of the case and it was so renewed. Thus the first question to be determined is jurisdictional.
The record shows the trial court’s journal entry of judgment was dated February 6, 1962, and that defendant, while represented by court-appointed counsel, P. C. Frazee, a duly-licensed and practicing attorney of Syracuse, Hamilton county, Kansas, entered a plea of guilty to the charge of jail break in violation of G. S. 1949, 21-735, and was convicted and sentenced thereunder. No appeal was taken therefrom and the time for appeal passed under G. S. 1949, 62-1724, which, in short, provides that a defendant may appeal at any time within six months from the date of the sentence.
On August 8, 1962, six months and two days after the conviction and sentence, defendant filed a motion denominated “Motion to Vacate and Set Aside Plea of Guilty, Sentence and Judgment.” Without evidence or argument the trial court on September 14, 1962, denied this motion. Further, defendant’s motion showed on its face that he was in the penitentiary and was seeking an order of the trial court to be brought from such penitentiary to the district court of Hamilton county in order that evidence could be presented. It appears defendant was seeking a writ of habeas corpus but the Hamilton district court was without jurisdiction to entertain such an action for the reason that the warden of the state penitentiary, upon whom service would have to be obtained, was in Leavenworth county which, of course, is outside the jurisdiction of the Hamilton district court. (State v. Chance, 187 Kan. 27, 28, 353 P. 2d 516.) From the motion of defendant it might be inferred he was seeking to obtain relief by the issuance of a writ of error coram nobis, but that could not be available to him because he, too, was in Leavenworth county and the Hamilton district court had no jurisdiction over him and, therefore, the motion could not be entertained by that court for the purpose of obtaining either writ. (State v. Chance, supra, pp. 28, 29; State v. Robertson, 190 Kan. 775, 378 P. 2d 39.) It follows that since the trial court had no jurisdiction of the proceeding, this court acquired none on an appeal from the trial court’s dismissal thereof.
In order to afford defendant every possible benefit, we have also considered the present appeal as having been taken from the original conviction and sentence. However, the appeal was not filed with this court until October 8, 1962, which was out of time. We do not deem it necessary to consider the statement of counsel for the state that at the time of hearing defendant had received and accepted a parole on his present sentence.
We conclude defendant has failed to show that his substantial rights have been prejudicially affected or that the trial court in any manner erred in dismissing his motion for lack of jurisdiction.
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The opinion of the court was delivered by
Jackson, J.:
On July 24, 1961, William M. Ferguson, attorney general of Kansas, brought an action under the new statute which had recently been passed by the Kansas legislature in relation to obscene books and writings. He thereupon caused to be filed before the district judge in Geary county at Junction City, the county seat, an information setting out that the P-K News Service of that city had in stock and possession a quantity of paper-back books which were named in the information. We are told that the judge was given seven copies of the books for perusal before issuing the warrant for seizure. The judge’s remarks about his reading of the books may be found in the transcript of the proceedings of July 25, 1961. The court did not delay in issuing the warrant under the Laws of 1961, ch, 186, sec. 4. (Now also found in G. S. 1961 Supp. 21-1102c.)
Thereafter, the sheriff of Geary county was given a search warrant and notice of hearing. Harold Thompson and Robert Thompson, owners of the P-K News Service, were given notice to appear on August 7,1961 to determine whether the books seized were obscene. After serving the warrant, the sheriff reported and certified that he had found 1715 individual copies of the paper-back books.
On August 7, 1961, the interveners — now appellants — filed a motion to quash. The court heard arguments on this motion on August 7, and on August 11, denied the motion to quash. On August 8, the appellants moved for a continuance. This motion was granted and the court continued the case until September 14. On September 6, appellants moved that they be granted a jury trial. This was denied. Thereafter, the matter was tried to the court, and the court handed down a short memorandum opinion on September 19, 1961. We are setting out the opinion here as the clearest way of showing what the trial court thought about the case:
“Memorandum Decision
(Filed September 19, 1961)
“The sole question before the Court at this time is whether the books in question, as shown in the warrant issued by this Court, are obscene literature as defined in Chapter 186 of the Session Laws of the State of Kansas, 1961.
“The test to be employed under our law is taken directly from an instruction approved by the Supreme Court of the United States in the case of Roth vs. the United States, which was decided together with Albert vs. State of California in 354 U. S. 476, 1 L. Ed. 2d 1498 [sic], 77 S. Ct„ 1304. This Court must then look to these two decisions.
“The test of obscenity as laid down by the Court in the Roth case is as follows: ‘Whether to the average person, employing contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.’
“The four words or phrases italicized above form the yardstick by which these books are to be judged. The first two are impossible as to ascertainment to a certainty. The ‘dominent theme’ of the book is antonymous to ‘isolated excerpts’. Webster’s New World Dictionary of the American Language, College Edition (1960), defines ‘prurient’ as follows: ‘1. Having lustful ideas or desires. 2. Lustful, lascivious, lewd: as, prurient longings. 3. Itching.’
“The Court approved as a further guide the definition of obscenity in the Model Penal Code, Section 207. 10(2), as follows: ‘A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond the customary limits of candor or representation of such matters.’
“This Court has further kept in mind, based upon the above decisions, that sex and obscenity are not synonomous.
“This Court would draw a line as between the books in question here and the books introduced by the intervener, that being the purpose for which the books were written. In the case of the books introduced into evidence by the intervener, the core of the said books would seem to be the plot, with sex being subservient thereto and only acting as an agent to carry the plot to its intended conclusion, while in the books in question, the core would seem to be that of sex, with the plot, if any being subservient thereto.
“This Court has made the rule of the Roth case, and the test as set forth in the law in question, operative in this case in the following manner: If the books in question showed this Court that their dominant purpose was calculated to effectively incite sexual desires, and the Court further believed that they would have this effect on the average person residing in this community, then they are not entitled to the protection of the Amendment to the Constitution. This Court believes that the books under indictment here fall within the last statement and are not entitled to the said protection.
“It Is Therefore Ordered, Adjudged, and Decreed that the books in question are found to be in violation of Chapter 186 of the Session Laws of the State of Kansas, 1961, and shall be turned over to the Sheriff of Geary County to be destroyed by said sheriff upon the further order of this Court.”
Appellants have now appealed to this court and are asserting all of the matters urged to the trial court.
Turning to the statute (G. S. 1961 Supp. 21-1102a) we readily see that the first section contains a definition of obscenity. We believe that the test for obscenity which is provided is adequate and we are applying it in this case.
It would seem that the vital question is whether these seized books were in fact obscene. The test for obscenity is not easy to state. It is said that Irvin S. Cobb was once called as an expert witness in a case of claimed obscenity. He was asked to give a definition of obscenity. His answer was: “If the depth of the dirt exceeds the breadth of the wit, then in my opinion the book is obscene.”
Appellants argue that there was no evidence showing comparison of the seized books with other books in common circulation. The trial court did point out the difference between the seized books and some twenty-nine others that were taken from the Junction City public library.
The attorney general’s brief contains a section in which each of the thirty-one seized books is listed by name and then the pages upon which obscenities occur are given along with a short description. We have checked the cited pages and find that they well bear out the descriptions. We would certainly agree that the books as a whole come within the definition found in paragraph 4 of the syllabus in Roth v. United States, 354 U. S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304, where it is said:
“(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest — i. e., material having a tendency to excite lustful thoughts.” (p. 477)
We are of the opinion that the seized books are in fact hard core pornography. We feel certain that young G. I.’s from Fort Riley— many of whom frequent Junction City — would be of the same opinion. We believe that the seized books are obscene by the definition found in the Roth case, or by the definition found in the statute or by any other definition.
We shall now answer briefly certain other matters. First of all, obscenity is not protected by the First Amendment to the Constitution of the United States nor is it protected by the due process clause of the Fourteenth Amendment nor, of course, under section 11 of our own Bill of Rights to the Constitution of Kansas, see Roth v. United States, supra.
The present case is not a criminal case but a civil case. The appellants are claiming that they had a right to a jury trial. If that were true, appellants would have to point out what form of action at common law formed the basis for the present suit. Both the provision in section 5 of the Bill of Rights of the state constitution which reads: “The right of trial by jury shall be inviolate” and Amendment VII of the federal constitution preserve only the right of trial by jury as it existed at common law. This action grows out of a statute, and we know of no basis for it at common law. Therefore, there was no right to a jury trial.
We believe that , the currently seized books are only attempts to carry pornography to the “nth” degree; that smut and obscenities seem to be the chief purpose of the books; that the story — what there is of it — is simply a framework upon which to hang the pornography. Certainly there is no literary merit in the thirty-one books seized. They are trash.
Having considered all matters raised in this case, the order will be made to affirm the trial court’s ruling. It is so ordered.
Price and Robb, JJ., dissent. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiffs (appellees) Bonicamp, Koelling and Smith, a partnership, engaged in the business of certified public accounting, brought this action to recover on an account for services rendered by them to defendant (appellant) R. B. McNeely.
The original petition filed July 12, 1960, sought to recover $2,802.50 due on an itemized account attached to the petition, to which petition the court sustained defendant’s motion to make definite and certain and overruled defendant’s motion to strike certain portions of the petition. In compliance with the order an amended petition was filed which, in pertinent part, alleged that prior to January, 1944, at the request of the defendant, plaintiffs performed services in accounting for defendant on an account upon which yearly and monthly services were performed by plaintiffs and upon which periodical payments were made by defendant, the last credit being an adjustment of $300 allowed to defendant on April 30, 1959, and the last service being performed by the plaintiffs on August 26, 1959, leaving a balance due of $2,802.50. An itemized statement was attached and made a part of the petition.
The petition further alleged that the charges made for the services were customary, reasonable and proper and that invoices were mailed to the defendant periodically; that on numerous occasions defendant made oral statements and promises concerning said account; that the statements and promises concerned the total balance then due; that in May, 1960, defendant requested, and received, an itemized statement of said account in its entirety and made no objection to such statement. Plaintiffs prayed for judgment for the amount due as aforesaid.
The defendant filed a motion to the petition to have the court determine the question of whether or not the petition disclosed on its face that the statute of limitations had run as to part of the account. This motion was overruled and the defendant filed his answer setting up as an affirmative defense the statute of limitations as a bar to a portion of the account.
Giving the petition as amended a liberal construction, it will be noted it is framed in such a manner that the plaintiffs could conduct their action on any one of two theories: one, on an open running account, and the other, that it was an action on an account stated.
Trial was had to a jury, evidence was introduced, and the court instructed the jury on an account stated as follows:
“You are further instructed that if you find from the evidence that the parties hereto met on or about May of I960 and agreed to an amount due the plaintiffs for accounting services rendered to the defendant and that there was a meeting of the minds as to the amount due, then in the absence of mistake or fraud, said transaction constitutes a new agreement between the parties, regardless of any past agreements or transactions they may have made, and the plaintiffs may recover, if you find that they are entitled to recover, for the amount of the new agreement, if you find one was so made, whatever that amount may be, not exceeding $2,802.50.
“In this connection, you are further instructed that the burden of proving mistake or fraud, if any, rests upon the defendant.”
The defendant made no objection to this instruction, nor does he now contend it was erroneous.
The jury returned a verdict in favor of plaintiffs for the amount claimed. The defendant filed a motion for a new trial, which was overruled, and this appeal was then perfected.
Before considering the question raised by defendant, we are confronted with a motion to dismiss this appeal because defendant has failed to comply with the requirements of G. S. 1949, 60-3311, which pertain to filing a transcript of proceedings in the lower court. However, the want of a transcript and the consequent defective abstract of the evidence do not always require a dismissal; the want of these merely limits the scope of review. (In re Estate of Fitzroy, 172 Kan. 339, 240 P. 2d 163.)
Defendant admits the allegations of plaintiffs’ petition as amended were supported by the evidence and states that the only question involved is purely a question of law as to whether or not the petition as amended shows upon its face that a portion of the account sued upon was barred by the statute of limitations, and contends his abstract setting forth the pleadings and his motions lodged thereto were sufficient to determine this question.
The plaintiffs filed a counter abstract with this court covering pertinent portions of the evidence introduced at the trial on the theory of account stated. The evidence disclosed that the parties on May 20, 1960, met and discussed the account; that on that day a demand note was prepared in the sum of $2,802.50, the balance due on the account, at which time defendant stated he did not want to sign a demand note for the reason that should anything happen to him then plaintiffs could make demand on his wife for payment of the note; that subsequent thereto plaintiffs mailed to defendant an installment note for the amount; that defendant at no time raised any objection to the amount agreed upon, nor did he say anything to indicate that he objected to the balance of $2,802.50.
No useful purpose would be gained to narrate the evidence further. Suffice it to say that the case was tried upon the theory of an account stated without any objection on the part of the defendant to the court’s instruction No. 7, as previously set out, and said instruction became the law of the case. (Krehbiel v. Milford, 171 Kan. 302, 306, 232 P. 2d 229; Hudson, Administrator v. Tucker, 188 Kan. 202, 212, 361 P. 2d 878; Gano v. Hall, 188 Kan. 491, 494, 363 P. 2d 551.)
In Dettmer v. Fulls, 122 Kan. 98, 99, 100, 251 Pac. 396, it was stated:
“An ‘account stated’ is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. (The State v. Ill. Central R. R. Co., 246 Ill. 188, 241.) It is an agreement between persons who have had previous transactions, fixing the amount due in respect thereto, and a promise to pay the balance. (Borders v. Gay, 6 Ga. App. 734; Allen-West Commission Co. v. Hudgins, 74 Ark. 468.) An ‘account stated’ is an account in writing examined and accepted by both parties, which acceptance need not be expressed, but may be implied from the circumstances. (Leinbach v. Wolle, 211 Pa. 629, quoting Story’s Equity Jurisprudence §526.) The acceptance need not be in express terms. (Powell v. Pacific Railroad, 65 Mo. 658.) It may be inferred from retaining the account a sufficient time without making objection. (Freeland v. Heron, 7 Cranch [U. S.] 147, 3 L. Ed. 297; Patillo v. Allen-West Commission Co., 131 Fed. 680.)
“ ‘An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance.’ (1 C.J. 678.)
“ ‘ The meeting of the minds of the parties upon the correctness of an account stated is usually the result of a statement of account by one party and an acquiescence therein by the other. The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case.’ (1 C. J. 687.)
“ ‘ The statement of the account need not be in writing, nor need the agreement, if oral, be based upon writings evidencing transactions between the parties; and it is no objection that a part thereof is in writing and a part oral. So if the account is stated in writing, it is not necessary that it be signed or acknowledged in writing.’ (1 C. J. 682.)
“ ‘An account may become stated also where the statement of dealings between two persons is made out by one of them and submitted to the other, who acquiesces in its correctness and the same result is brought about where the person to whom an account is rendered subsequently acknowledges receipt of it and promises to pay it.’ (1 C. J. 688.)”
In the instant case the petition as amended was sufficient to allege an account stated, and the case was tried and submitted to the jury on this theory. A review of the evidence, as shown by the plaintiffs’ counter abstract, discloses that on May 20, 1960, the parties agreed upon the indebtedness due and the amount sued for by plaintiffs; that two different notes made out for said amount, although not signed, were kept by the defendant without objection as to the accuracy of the balance due. The facts show all the essential elements of a stated account — a meeting of the minds of the parties upon the correctness of the account, and when this is shown, the law implies an agreement to pay. (Dolman & Son v. Construction Co., 103 Kan. 635, 176 Pac. 145; Harris v. Drenning, 101 Kan. 711, 168 Pac. 1106; Harrison v. Henderson, 67 Kan. 202, 72 Pac. 878.)
Based on the record here presented defendant has failed to make it affirmatively appear that error was committed, and the judgment of the trial court must be affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a conviction on a charge of unlawfully driving and operating an automobile on a public highway while under the influence of intoxicating liquor, as prohibited by G. S. 1961 Supp., 8-530.
The cause was Hied by the court, a jury having been waived by the defendant, Riddelle L. Gregory. After hearing the evidence the trial court found the defendant guilty of the offense as charged. Thereupon defendant perfected an appeal to this court wherein he contends that the trial court erred in overruling his motions for discharge at the close of the state’s case and at the close of all the evidence in the case and his motion for a new trial.
Two witnesses, Herbert Haines and Richard Darnell, testified for the state. Their testimony will be summarized.
During the course of the trial Haines testified that on November 21, 1961, at approximately 4:00 p. m., he observed an automobile in the ditch on the south side of Highway K-150, a public highway in Johnson County, Kansas. It was dusk and raining slightly. He noticed that the windshield wipers and lights of the automobile were on. He further testified that he continued approximately four to five hundred feet beyond such vehicle and then turned around and returned to where it was located; that he then observed the windshield wipers and lights had been turned off; that the tracks showed the automobile had been traveling to the west and indicated that it had gone into the ditch at approximately a 35 to 40 degree angle with reference to the line of the highway; that such tracks led up to the rear wheels of the vehicle; that the defendant was standing just outside of the automobile, on the driver s side, holding onto the door to steady himself; that the defendant’s eyes were blood-shot and he had a very strong odor of alcoholic beverages; that in answering questions defendant’s speech was slow, like it might be a thick tongue, and that defendant appeared to be in a stupor and required assistance in getting up the bank of the ditch. Haines also testified that on the way to the county jail the defendant told him that the vehicle in question was a rented station wagon; that he was the owner of the Smak’s Drive-In in Olathe, Kansas, and was making a delivery there. This witness also testified that at the county jail, during a “coin test,” he observed Gregory try to pick up a coin and that in doing so he felt all around and all over the floor before he could finally locate it; and that during a “finger-to-nose test,” the defendant placed his fingers on his cheeks. During the course of the examination Haines stated that in his opinion defendant was under the influence of intoxicating liquor when he observed him at the scene of the accident.
Darnell, a deputy sheriff, who observed defendant at the county jail, testified that at that time defendant was unshaven, his eyes were bloodshot, his clothes messed up and his shoes muddy. He also stated that defendant’s speech was slow and slurred, that his actions were slow, and that when he asked him where he was going he replied he was the owner of Smak’s and was making some deliveries to Smak’s. This witness further testified that he administered the “coin test” and “finger-to-nose test” to defendant who, with regard to the former, hit on either side of the coin, and, with regard to the latter, touched the side of his face and slid his finger over to his nose. This witness also testified that the defendant was intoxicated when he reached the county jail.
The defendant’s motion for an order discharging him, based on grounds that the evidence failed to prove that he had driven or operated the automobile in question at any time in the State of Kansas during the date in question was overruled.
Following the court’s action on the above mentioned motion the defendant testified as a witness on his own behalf. While testifying in that capacity (1) he admitted that he had been drinking in the State of Missouri on the day in question, consuming approximately five scotch and soda drinks and three beers; (2) he stated that by mid-afternoon of that day he “did not feel so good,” that when he noticed a man hitchhiking, he asked him to drive him to Olathe, that after they left the State of Missouri and entered the State of Kansas, the automobile ran off the highway into the ditch, that when he woke up the hitchhiker was gone, and that he did not know the name of the alleged hitchhiker and had not seen him since the automobile ran into the ditch; and (3) he denied having driven the automobile after leaving the State of Missouri. So far as the record discloses no other witness testified in defendant’s behalf.
The state recalled Haines and Darnell as rebuttal witnesses. Each testified, in substance, that the defendant on the day of his arrest told them that he ran into the ditch to avoid a car that was coming “at him head on.”
Appellant’s claims of error with respect to the action of the trial court in overruling his motion for discharge at the close of all the evidence in the case and his motion for a new trial, as well as his claims respecting the propriety of the trial court’s ruling on the first motion for discharge, to which we have previously referred, are all based upon the fundamental premise that the record discloses no substantial evidence proving or tending to prove all of the elements necessary for conviction under the provisions of G. S. 1961 Supp., 8-530.
In support of his position on the point just mentioned appellant suggests that this court has determined four separate elements which the state must establish beyond a reasonable doubt before there can be a conviction on a drunken driving charge. He relies on State v. Bailey, 184 Kan. 704, 339 P. 2d 45, which states:
. . The offense of unlawfully driving a motor vehicle upon a public highway while under the influence of intoxicating liquor is comprised of several elements, each of which must be proved beyond a reasonable doubt by the State. The State must prove at the time in question (1) the defendant was operating the motor vehicle in question; (2) that the instrumentality which the defendant was operating was a motor vehicle within the contemplation of such term in the statute; (3) that the defendant was operating such vehicle on a public highway; and (4) that he was under the influence of intoxicating liquor. . . .” (p. 711.)
Appellant does not appear to question the proof of the elements of the offense other than the one identified in the Bailey case as (1), i. e., “the defendant was operating the motor vehicle in question.” In this connection, citing State v. Hendrix, 188 Kan. 558, 363 P. 2d 522, and State v. Rhoten, 174 Kan. 394, 257 P. 2d 141, he states:
“. . . that there is a lack of substantial evidence to support his conviction because the circumstances produced by the State to show he was operating a vehicle do not exclude every reasonable hypothesis except such operation
We have no quarrel with appellant’s statement of the law as set forth in State v. Bailey, supra. However, we cannot agree with the construction which he places on the facts in the case at bar. The record discloses positive evidence that appellant was the only person about the scene of the accident; that he was leaning on the door, on the driver’s side, of the car; that he turned off the lights and the windshield wipers while Haines was turning around to give aid; and that he stated he was making a delivery to Smak’s Drive-In in Olathe. Moreover, there was evidence, in the form of admissions against interest, to the effect he had driven the automobile into the ditch, notwithstanding his denials to the contrary during the trial.
In the face of the facts of record the only reasonable conclusion which could be gathered from the evidence was that the appellant was driving the motor vehicle. In any event, conceding there was some testimony to the contrary, it was for the trier of facts to determine what evidence was to be believed.
See State v. Osburn, 171 Kan. 330, 332, 232 P. 2d 451, which holds:
“It is the function of the jury, not that of the court of appellate review, to weigh the evidence and pass upon the credibility of the witnesses and, if there is substantial competent evidence to support it a verdict will not be disturbed on grounds it is based on insufficient evidence or is contrary to the evidence.” (Syl. f 1.)
See, also, State v. Stout, 175 Kan. 414, 417, 264 P. 2d 1056; State v. Haught, 180 Kan. 96, 299 P. 2d 573; and State v. Russell, 182 Kan. 649, 653, 323 P. 2d 913, and decisions therein cited.
Assuming, arguendo, that only circumstantial evidence was submitted, the weight to be given such evidence is to be determined by the trier of the facts. It is not the function of this court to weigh the evidence. See State v. Murphy, 145 Kan. 242, 65 P. 2d 342, which holds:
“When considering on appeal the sufficiency of circumstantial evidence to sustain conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That was a question for the jury and the trial court, and the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt, following State v. Brizendine, 114 Kan. 699, 220 Pac. 174.” (Syl. |4.)
For other decisions of like import see State v. Routs, 169 Kan. 686, 691, 221 P. 2d 841; State v. Rhoten, 174 Kan. 394, 399; 257 P. 2d 141; and State v. Dill, 182 Kan. 174,319 P. 2d 172.
In State v. Crosby, 182 Kan. 677, 324 P. 2d 197, we held:
“On appellate review of a conviction of a criminal offense the fact that incriminating circumstantial evidence might also be deemed compatible with innocence is not controlling, and the question before this court is not whether such evidence is incompatible with any reasonable hypothesis except guilt. That is a question for the jury and the trial court, and this court’s function is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt.
“It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court.” (Syl. ¶¶ 4 and 5.)
See, also, State v. Cooper, 190 Kan. 101, 372 P. 2d 289, where it is held:
In reviewing an order overruling a motion to discharge the defendant in a criminal case, the Supreme Court on appeal examines the record to determine whether there is an absence of substantial evidence proving or tending to prove the essential elements of the crime charged. If from all the facts and circumstances disclosed by the evidence the jury might have reasonably drawn an inference of guilt, the defendant’s motion for discharge is properly overruled, and the verdict of guilty will not be disturbed.” (Syl. ¶ 2.)
The appellant relies on In re Estate of Hayden, 174 Kan. 140, 254 P. 2d 813. The facts before us make it clearly distinguishable. In that case two men were found dead at dual controls of a wrecked airplane and we were dealing with the question of opinion testimony, based on speculation and conjecture, to establish which man had charge of the controls at the time the accident occurred.
Based on what has been heretofore stated and held we must conclude that the facts in this case provided the basis for a reasonable inference by the trial court that the appellant was operating the motor vehicle. In fact, no other reasonable hypothesis could be drawn.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was a divorce action. The court granted a divorce to the plaintiff wife, awarded permanent alimony, and made a division of the property.
The plaintiff has appealed, contending the district court abused its discretion in making a division of the property and in awarding the defendant personal property acquired by her from her personal earnings.
The parties were married in 1936 and they have one son who is of age. Both parties worked almost continuously during the marriage. During World War II the defendant was in the Navy and his family received a government allotment. The allotment check plus some pay he received was deposited in a joint bank account. During that period, the plaintiff worked and she used her paycheck for the family living expenses. When the parties returned to Wichita they had saved approximately $6,500. They purchased a home and an adjoining rental property for $10,000, making a down payment of $5,000 thereon. A mortgage was given for the balance and at the date of the trial there was a balance owing of $283.77. After fhe purchase of the properties and furniture, the rental payment of $50 per month was paid on the mortgage.
Following their return to Wichita the plaintiff was employed by Sears Roebuck & Company and the defendant was employed by Boeing Airplane Company. The plaintiff and defendant were approximately 50 years of age and both were working when the action was commenced and at the time of trial. There was no evidence of the gross salaries of either of the parties, nor was there any evidence that either had inherited any property or received any property by way of a gift. At the conclusion of the testimony, the court required that an inventory of assets of a safety deposit box be made and filed by counsel of the parties. In addition, counsel for the defendant filed an inventory showing assets of the parties to be $20,570.15, the accuracy or validity of which was not disputed. Included in the inventory was a joint savings account in the sum of $965.32 which stood in the names of the plaintiff and the son and pledged to secure a loan to the son, and in the safety deposit box were government bonds in the amount of $1,703.60, purchased by the plaintiff from her earings which stood in her name alone. The remainder of the government bonds in the safety deposit box of the value of $4,006.90 stood in the names of the plaintiff and the defendant and were purchased by the defendant from his personal earnings.
Based upon the testimony adduced and the inventory, the court awarded the plaintiff the home and the rental property of the value of $10,000, less the mortgage indebtedness, or a net value of $9,716.23; the household contents in each house of the value of $1,050; a joint bank account in the sum of $1,072.95 standing in the names of plaintiff and the son; cash in plaintiff’s possession of $530, and insurance policies having a cash surrender value of $893.67, totaling $13,262.85. The defendant was awarded a Buick automobile of the value of $500; the parties’ joint bank account of $96.16 to which plaintiff had not contributed; the joint savings account of $965.32 standing in the names of plaintiff and the son; cash in his possession of $36, and government bonds standing jointly in the names of the parties and in the name of the plaintiff alone in the sum of $5,710.50, and awarded the defendant $3,000 which was made a lien upon the real estate. Property set aside to the husband, including the $3,000 award made a lien upon the real estate, totaled in the sum of $10,307.98. By deducting the $3,000 award to the defendant from the value of property awarded the plaintiff, it is observed she was awarded property of the value of $10,262.85. In addition, the defendant was ordered to pay attorneys fees for the plaintiff and defendant in the sum of $1,250, plus the costs of the action, which reduced his share to $9,057.98.
The plaintiff’s argument is based on two premises. First, that the court’s judicial discretion was limited to awarding to her one-half of the jointly acquired property, and second, that the court should have first awarded to her some $2,668.92 as her sole and separate property which she saved from her personal earnings (the joint savings account of $965.32 and government bonds in the amount of $1,703.60).
We shall first discuss plaintiff’s second premise. The defendant concedes that pursuant to G. S. 1949, 60-1511, where a divorce is granted for fault of the husband, it is the duty of the court to restore to the wife all property owned by her before the marriage or acquired by her in her own right after the marriage. The section, however, provides further as follows:
“And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof.”
The defendant contends that if, under the facts and circumstances, the plaintiff’s second premise is erroneous, there is no basis whatsoever to substantiate the first premise.
We are of the opinion that the property in question, that is, the joint savings account and the government bonds standing in the names of plaintiff and the son or in her name alone, was “acquired by the parties jointly during their marriage” and was subject to division in the sound judicial discretion of the court. In Raney v. Matney, 128 Kan. 426, 278 Pac. 26, the court, speaking through Mr. Justice Burch, and after quoting that portion of Sec. 60-1511 set out above, said:
“The statute clearly contemplates that in adjusting property rights the divorce court may inquire into and determine property origins. In this instance the court made an investigation and found the land was acquired by the husband and wife out of their joint earnings after marriage. The statute provides that no matter in which party title stands the court may give property so acquired to either one. . . . Prima facie, the distinction in the statute is between property originally acquired separately by one spouse, and property originally acquired jointly by both, and when divorce is granted for fault of the wife (here, for fault of the husband) it is not material whether title of property originally acquired with joint funds stands in one or the other, or both. . . .’’(l.c.427.)
In Forrey v. Forrey, 167 Kan. 77, 204 P. 2d 725, the husband and wife had lived apart for over twenty years. Prior to their separation eight children were born to the marriage. Following the separation, the defendant husband devoted himself to his business and accumulated considerable property while the wife reared the eight children. In addition to granting the wife permanent alimony, the court gave her certain pieces of property acquired by the husband during the separation, which stood in his name. In the opinion reference was made to Sec. 60-1511, and it was said:
“This opinion might very easily be extended indefinitely on the question of the extent of plaintiff’s efforts and industry in carrying out her part of the marriage relationship in the rearing, earing for and educating the eight minor children of the parties during the long period of years they were separated but it is sufficient to say that under the facts of this case we have no hesitancy whatsoever in saying that the plaintiff must be said to have contributed to the accumulation of the property and that surely in this sense of the word it was ‘acquired by the parties jointly during their marriage’ within the meaning of the provision of the statute heretofore quoted. . . .” (1. c. 81.)
See, also, Elliott v. Elliott, 154 Kan. 145, 114 P. 2d 823; Taylor v. Taylor, 174 Kan. 21, 254 P. 2d 301, and Cunningham v. Cunningham, 178 Kan. 97, 283 P. 2d 405.
In the instant case the plaintiff and defendant started their married life with no assets at all. Both were thrifty and worked almost continuously for 25 years. Neither received anything other than by their labors. The real property stood in the name of the parties jointly; bonds acquired by the defendant were placed in the names of the parties j'ointly and the defendant deposited his paychecks in the joint bank account. But that was not true of the wife. She established a joint savings account with the son and all bonds she purchased from her earnings were placed in her own name. Under these circumstances we have no hesitancy in concluding that the property in question must be said to be property “acquired by the parties j'ointly during their marriage” within the contemplation of Sec. 60-1511, and was subj'ect to a division between the parties in the sound judicial discretion of the district court.
There remains for disposition the plaintiff’s second premise that the court erred in making a just and equitable division of the property. This court has long adhered to the view that an award of alimony and division of property made by the district court in a divorce action will not be disturbed unless it is clearly shown that there was an abuse of discretion. (Walno v. Walno, 164 Kan. 620, 192 P. 2d 165; Forrey v. Forrey, supra; Goetz v. Goetz, 180 Kan. 569, 306, P. 2d 167; Garver v. Garver, 184 Kan. 145, 334 P. 2d 408.)
The award of money and property to the plaintiff, after taking into consideration payment of attorneys fees and costs of the action by the defendant, is considerably more than one-half of the property owned by the parties at the time of the divorce, and under the circumstances we cannot say the district court abused its discretion. On the contrary, it appears that it justly and equitably divided the property acquired by these parties during their marriage.
From what has been said it follows that the judgment appealed from should be and is hereby affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This action involves the application of the “grace period” provision of the Uniform Policy Act pertaining to policies of accident and sickness insurance.
There is no controversy as to the pleadings, and the facts are not in dispute.
The plaintiff, Floy S. Parker, is a resident of Emporia, Kansas. She is the sole beneficiary of an insurance policy issued by the defendant, Continental Casualty Company, to Wilbern W. Parker, plaintiff’s husband. The policy provided indemnity for loss of life through accidental means. The policy was issued January 23, 1952. It provided for payment of premiums quarterly.
Wilbern W. Parker paid all quarterly premiums due under the policy except the one due February 1, 1961. He died on February 24, 1961, as the result of accidental injury. On February 28, 1961, plaintiff paid the quarterly premium due February 1, 1961, by mailing defendant a check for $25.00. Plaintiff notified defendant of the death of Parker on March 2, 1961. The defendant sent plaintiff proof of loss forms which were promptly executed and returned to the defendant.
There was no “grace period” specifically set forth in the policy for the payment of renewal premiums not paid by the renewal dates. The defendant denied liability under the policy and this action was commenced.
The plaintiff contended that a thirty-one day “grace period” was made a part of the policy by reason of the provision of G. S. 1961 Supp., 40-2203 (A) (3).
The defendant contended that the statute providing for a “grace period” did not become effective until five years after the act became effective on June 30, 1951, by reason of the provision of G. S. 1961 Supp., 40-2213.
The district court rendered judgment in favor of the plaintiff and defendant has appealed.
We will first present the pertinent section of the act.
G. S. 1961 Supp., 40-2202 covers the form of the policy to be used and does not require specific attention.
G. S. 1961 Supp., 40-2203 contains the following introductory statement:
“Except as provided in paragraph (C) of this section each such policy delivered or issued for delivery to any person in this state shall contain the provisions specified in this subsection in the words in which the same appear in this section: . . .”
The paragraph (C) to which the section refers, deals only with filing policies and submission of policies to the insurance commissioner.
Paragraph (A) (3) of G. S. 1961 Supp., 40-2203 provides that a provision shall be included in the policy as follows:
“ ‘Grace period: A grace period of_’ (insert a number not less than ‘T for weekly premium policies, TO’ for monthly premium policies- and ‘31’ for all other policies) ‘days will be granted for the payment of each premium falling due after the first premium, during which grace period the policy shall continue in force.’ . . .”
G. S. 1961 Supp., 40-2204 provides:
“(A) Other policy provisions: No policy provision which is not subject to section 3 [40-2203] of this act shall make a policy, or any portion thereof, less favorable in any respect to the insured or the beneficiary than the provisions thereof which are subject to this act.
“(B) Policy conflicting with this act. A policy delivered or issued for delivery to any person in this state in violation of this act shall be held valid but shall be construed as provided in this act. When any provision in a policy subject to this act is in conflict with any provision of this act, the rights, duties and obligations of the insurer, the insured and the beneficiary shall be governed by the provisions of this act.”
The section with which we are chiefly concerned, G. S. 1961 Supp., 40-2213, provides:
“A policy, rider or endorsement, which could have been lawfully used or delivered or issued for delivery to any person in this state immediately before the effective date of this act may be used or delivered or issued for delivery to any such person during five (5) years after the effective date of this act without being subject to the provisions of sections 2 [40-2202], 3 [40-2203] or 4 [40-2204] of this act.”
The act contains the following penalty provision:
“Any person, partnership or corporation willfully violating any provision of this act or order of the commissioner of insurance made in accordance with this act, shall forfeit to the state of Kansas a sum not to exceed five hundred dollars ($500) for each such violation, which may be recovered by a civil action. The commissioner of insurance may also suspend or revoke the license of an insurer or agent for any such willful violation.” (G. S. 1961 Supp., 40-2214.)
The last two sections of the act (Laws of 1951, Chapter 296) which were not carried into the General Statutes should also be noted.
“Sec. 16. Sections 40-1109, 40-1109a, 40-1109b, 40-1405, 40-1406, 40-1407, and 40-1408 of the General Statutes are hereby repealed.
“Sec. 17. This act shall take effect and be in force from and after its publication in tire statute book.” (The act was published in the statute book June 30, 1951.)
The appellant summarizes its contention as follows:
“It is appellant’s contention that Section 40-2213 means just what it plainly says, namely that policies without a grace period that could have been lawfully issued prior to the effective date of the Uniform Act, may be issued for a period of five (5) years after the effective date of the act and are not governed by the act and no grace period is to be read into them by virtue of the act.”
The appellant would contend that the effective date of G. S. 1961 Supp., 40-2202, 40-2203, and 40-2204 was June 30, 1956, while the effective date of the other sections of the act was June 30,1951.
The construction suggested by appellant, if sustained, would render the entire act unconstitutional. The Constitution of Kansas does not permit closely related parts or sections of an act to become effective at different times.
Article 2, Section 19, provides:
“The legislature shall prescribe the time when its acts shall be in force, and shall provide for the speedy publication of the same; . . .”
This court first considered the matter in Commrs of Cherokee Co. v. Chew, 44 Kan. 162, 24 Pac. 62. It is stated:
“. . . The plaintiff in error contends that the act of 1887, chapter 159 of the laws of that year, took effect after its publication in the statute book, and was in force, or became operative as to the offices named therein, upon the expiration of the terms of the respective occupants thereof. If this construction is adopted, the act takes effect in part at one time and in part at other and different times, and may on that account be obnoxious to tire constitutional provision above quoted, which requires the legislature to fix a time when its enactments shall take effect and be in force. If another construction can be placed upon § 8 of the Laws of 1887, above quoted, which frees it from any objection under the constitutional provision, and such construction is equally consistent with the language of said § 8 and with the intention of the legislature in enacting the law of which § 8 is a part, such construction should be adopted. If we construe the words, ‘and after the present term of the officers hereinbefore named shall have expired,’ to mean after the terms of all the officers named shall have expired, the act not only takes effect but becomes operative in all its parts and upon all the offices therein named at the same time, and' is thus freed from the objection that it takes effect piecemeal, and also, as we think, from the objection that the legislature in its passage did not fix a time when the act should take effect and be in force. . . .” (p. 164.)
In Comm’rs of Miami Co. v. Hiner, 54, Kan. 334, 38 Pac. 286, it is again stated:
“The constitutional limitation referred to provides that ‘the legislature shall prescribe the time when its acts shall be in force.’ This provision plainly requires that the legislature shall fix a single definite time when its act as an entirety shall become a law. According to the practice and legislative course in this state, the last section of every act fixes a definite time when the act as a whole shall go into effect. It is sometimes by publication in a newspaper, in the statute book, or at some fixed time after a publication has been made. It was not intended that one section or provision of an act should become a law, while other sections or provisions of the same act were in an inchoate and embryonic stage. A legislative act, whether general or special, is passed as an entirety, approved as an entirety, and the generally accepted interpretation of the constitutional limitation is that it must become a law as an entirety. . . .” (p. 336.) (See also, Finnegan v. Sale, 54 Kan. 420, 38 Pac. 477, and State v. Deets, 54 Kan. 504, 38 Pac. 798.)
The question was next considered in State v. Newbold, 56 Kan. 71, 42 Pac. 345. In that case this court was considering an act relating to fees and salaries of the county officers of Summer County. The act changed the fees and salaries of all of the county officers except the county surveyor. The act provided that the county surveyor was to receive compensation for his services as now provided by law, “. . . but he shall not receive pay for keeping his office open for the convenience of the public for more fihan one day each week.” It was noted in the opinion:
“. . . The tenth and twelfth sections of the act in question read as follows:
' “ ‘Sec. 10. This act shall not effect the fees or salaries of the present county treasurer, county clerk, county attorney, register of deeds, clerk of the district court, sheriff, or probate judge, but shall be in full force and effect as to county surveyor.’
“ ‘Sec. 12. This act shall take effect and be in force from and after its publication in the official state paper.’
“The contention on behalf of the defendant is, that the act takes effect at different times, and therefore, under the decision in the case of Comm’rs of Miami Co. v. Hiner, 54 Kan. 334, and other cases following it, is void. . . .” (p. 72.)
In the opinion the court stated:
“. . . The act became a law on publication, and actively operative as to the county surveyor. As to the other county officers, it was also a law when published, but it did not change the compensation of the then incumbents of the county offices named, but did fix the compensation of their successors.” (p. 74.)
The last case in which the question was considered is that of State, ex rel., v. Meek, 86 Kan. 576, 120 Pac. 555. As the case reviews the previous decisions and contains the last expression of this court, we quote from the opinion at some length:
“The second and only other objection made to the act on constitutional grounds is that it violated the provision that ‘the legislature shall prescribe the time when its acts shall be in force.’ (Const, art. 2, § 19.) That provision has been interpreted to imply that a single definite time must be fixed when an act as an entirety shall become a law, and in several instances a statute has been held to be void because of a failure to comply with that rule. (Comm’rs of Miami Co. v. Hiner, 54 Kan. 334, 38 Pac. 286; Finnegan v. Sale, 54 Kan. 420, 38 Pac. 477; The State v. Deets, 54 Kan. 504, 38 Pac. 798.) The two later cases cited merely profess to follow the earlier one, without extending the doctrine there declared, although it may be doubted whether the last one actually fell within the rule. In the original case the section relating to the time of taking effect of the statute expressly provided that one portion should take effect at one fixed time, and another portion at a different one. In the opinion it was said:
“ ‘Acts are frequently passed in the body of which provision is made that they shall act upon certain classes and communities at different times, and upon the happening of certain contingencies; but there is a clear distinction between such acts and the one we are considering. In those cases the act goes into effect and becomes a law as an entirety, and if the act meets every contingency when it arises, and operates alike upon all that come within the scope of its authority, it is regarded as uniform in its operation, and is not to be deemed invalid merely because it does not become applicable to the classes, communities, or things at the same moment of time, or which may be subsequently governed by it. To be valid, however, such an act must become a law in its entirety, and not in sections or fragments.’ (Comm’rs of Miami Co. v. Hiner, 54 Kan. 334, 337, 38 Pac. 286.)
“The act of 1909 now under consideration is of the kind described in this quotation. By its express terms it took effect upon its publication. It all became a law at that time. It provided that in the counties to which it applies the district court should consist of ‘two or more’ divisions; that upon its taking effect ‘the duly elected and presiding judge of the district court’ should be the judge of the first division; that the governor should appoint a judge for the second division, but not for the third unless there should be a vacancy in the office of judge of the court of common pleas; that in case of such vacancy the governor should appoint a judge of the third division, and thereupon the court of common pleas should be discontinued. A separate section provided that the act should not interfere with the court of common pleas prior to January 13, 1913. The effect of this provision upon the others just mentioned is a matter for interpretation, but in any view there is no postponement of the time of taking effect of any part of the act. The statute fixes a mle of future conduct. It prescribes what shall take place in various contingencies, some of which may never happen. What may actually be done under it is uncertain, depending upon the conditions that arise. But every part of the statute became the law of the state upon its publication. The distinction is clearly pointed out in The State v. Newbold, 56 Kan. 71, 42 Pac. 345. (See, also, 36 Cyc. 1201.)” (Emphasis ours. p. 579.)
It is the duty of this court to uphold legislation rather than defeat it. It is presumed that the legislature intended to pass a valid law. If there is any reasonable way to construe legislation as constitutionally valid, it should be so construed.
In State ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537, the court stated, beginning at page 658 of the opinion:
“As preliminary to a consideration of the contentions of the plaintiff, we refer to long and well-established rules of this jurisdiction to the effect that the constitutionality of a statute is presumed and that all doubts must be resolved in favor of its legality and before the statute may be stricken down it must clearly appear the statute violates the constitution (Carolene Products Co. v. Mohler, 152 Kan. 2, 102 P. 2d 1044; Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P. 2d 530; State, ex rel., v. Board of Regents, 167 Kan. 587, 207 P. 2d 373); that it is the court’s duty to uphold the legislation rather than defeat it and if there is any reasonable way to construe the legislation as constitutionally valid, that should be done (Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316); that, at the threshold of the inquiry of validity of a statute, courts start with the presumption that the lawmakers intended to enact a valid law and to enact it for the accomplishment of a needful purpose (State, ex rel., v. Board of Education, 137 Kan. 451, 453, 21 P. 2d 295); . . .”
(See, also, Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 322 P. 2d 731, and State, ex rel., v. Board of County Commissioners, 188 Kan. 318, 362 P. 2d 81.)
In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836, it is stated:
“If possible, the court will construe a statute to prevent discrimination and unequal protection of the laws. This court will always approach questions challenging the constitutionality of a statute with a disposition to determine them in such a manner as to sustain the validity of the enactment in question. (Berentz v. Commrs of Coffeyville, 159 Kan. 58, 152 P. 2d 53.) The construction supporting a statute is preferred to one destroying it. (Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 936.) Where possible, the provisions of an act must be considered together to resolve consistency rather than inconsistency, and a construction upholding the provision of the statute is favored. (Terrill v. Hoyt, 149 Kan. 51, 87 P. 2d 238.) . . .” (p. 294.)
There is still another reason why the construction which appellant attempts to place on G. S. 1961 Supp., 40-2213, would not be tenable. Chapter 296 of the Laws of 1951 repealed, effective June 30, 1951, all of the existing statutes pertaining to policy provisions for accident and sickness insurance. It repealed G. S. 1949, 40-1109, which contained some seventy separate paragraphs covering policy provisions most of which were similar to the provisions of G. S. 1961 Supp., 40-2203. It repealed G. S. 1949, 40-1109a which covers policy provisions for family expense polices. It repealed G. S. 1949, 40-1405 to 40-1408, which covered policy provisions for mutual assessment, health and accident associations.
We cannot assume that although these sections were specifically repealed, the legislature intended that they remain effective, by implication, for a period of five years, such time as it is contended G. S. 1961 Supp., 40-2202, 40-2203, and 40-2204, were to become effective. Neither can we assume that there was intended to be a period of five years without statutory requirements for policy provisions.
We construe G. S. 1961 Supp., 40-2213, to mean that a policy, rider or endorsement which could have been lawfully used or delivered or issued for delivery immediately before the effective date of the act, could be used for five years after the effective date of the act without containing the additional provisions set out in G. S. 1961 Supp., 40-2202 and 40-2203, but that such provisions would be read into the policy.
It will be noted that the only place the word “used” is found in the statute is in G. S. 1961 Supp., 40-2213. The legislature intended that the old policies could be used for a period of five years, subject to the provision of the act, while the companies were adjusting their policy provisions to conform to the new law.
We are informed that such a construction cannot be harmonized with the fact that section 13 of the act (G. S. 1961 Supp., 40-2213) also permits policies to be used and issued for a five year period without being subject to section 4 of the act (G. S. 1961 Supp., 40-2204). Perhaps it cannot. However, we should not for that reason destroy the intent and purpose of the legislature. Section 4 (A) of the act is in the same situation as sections 2 and 3 (G. S. 1961 Supp., 40-2202 and 40-2203) insofar as the application of section 13 is concerned. We do not believe the legislature intended to include the reference to section 4 (B) in section 13. The reference appears to be an inadvertent error. The language used in section 4(B) has the same effect as that used in G. S. 1949, 40-1408, and is quite similar to the language used in G. S. 1949, 40-1109 (i). These provisions were repealed. It cannot be assumed that the legislature intended to repeal the two provisions without some provision to replace them before the expiration of five years. It must have been the intent of the legislature to make reference only to section 4 (A) in section 13 of the act. As so construed, all of the provisions of the act are in harmony.
The intent and purpose of the legislature should govern the construction of a statute even though words or statutory references at some place in the statute must be inserted or omitted.
It has been stated:
“In this jurisdiction a fundamental rule, to which all others are subordinate, is that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted (Hunziker v. School District, 153 Kan. 102, 107, 109 P. 2d 115, and cases there cited). See, also, West’s Kansas Digest, Statutes, § 181, and Hatcher’s Kansas Digest [Rev. Ed.], Statutes, § 71.
“Another rule of equal importance is that in construing a statute the legislative intention is to be determined from a general consideration of the whole act. Effect must be given, if possible, to the entire statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so far as to make them consistent and sensible. (Iola B. & L. Ass’n v. Allen County Comm’rs, 152 Kan. 365, 103 P. 2d 788.) This rule, stated in various forms, has been applied by this court throughout its history. See West’s Kansas Digest, Statutes, § 205, and Hatcher’s Kansas Digest [Rev. Ed.], Statutes, § 77.” (In re Estate of Diebolt, 187 Kan. 2, 353 P. 2d 803, p. 13.)
“. . . In construing the statute, the object of the statute must be kept in mind and such construction placed upon it as will, if possible, effect its purpose even though the statute be somewhat indefinite. If it is susceptible of more than one construction it must be given that construction which will best effect its purpose rather than one which would defeat it, and this is true even though such construction is not within the strict literal interpretation of the statute, and even though both are equally reasonable. (59 C. J. §571, pp. 961-964.)
“Another well-established rule of construction was reiterated and applied in the recent case of Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115, where it was said:
“ Tt is a fundamental rule of statutory construction, to which all others are subordinate, that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. This rule, stated in various forms, has been applied by this court throughout its history.’ (p. 107.)” (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550, p. 420.)
“The books are full of rules for statutory construction, but they were all enunciated with the idea of determining what the legislature had in mind in enacting the acts under consideration. It is a cardinal rule that all statutes are to be so construed as to sustain them rather than ignore or defeat them; to give them operation if the language will permit, instead of treating them as meaningless. (Lewis’ Sutherland Statutory Construction, § 498.)
“In Black on Interpretation of Laws (2d ed.) is the following:
“ ‘When the interpretation of a statute according to the exact and liberal import of its words would lead to absurd or mischievous consequences, or would thwart or contravene the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason, disregarding or modifying, so far as may be necessary, the strict letter of the law.’ (§ 29.)” (Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042, p. 536. See, also, Tatlow v. Bacon, 101 Kan. 26, 165 P. 835, and Coney v. City of Topeka, 96 Kan. 46, 149 P. 689.)
The policy in question was subject to the grace period provided by G. S. 1961 Supp., 40-2203 (A) (3) from the time it was issued.
The appellant also complains of the judgment allowing appellee attorney fees as a charge against appellant in the amount of $400. The complaint is well founded.
G. S. 1961 Supp., 40-256 provides in part as follows:
“. . . if it appear from the evidence that such company or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected part of the costs. . . .”
The phrase “without just cause or excuse” was added to the section by amendment in 1957. (Laws of 1957, Chap. 276, Sec. 1.) The language used appears to be clear and unambiguous. The question for determination is, did the appellant have “just cause or excuse” for challenging the application of the grace period, as provided in G. S. 1961 Supp., to the policy in question? We believe that what has been said in the opinion leaves no doubt but that it did.
Whether attorney fees are to be allowed must depend on the facts and circumstances of each particular case. We are constrained to hold that an insurance company has just cause to seek an interpretation of the ambiguous provisions of a statute. It is only where the insurer refuses “without just cause or excuse” to pay in accordance with the terms of the policy that an allowance can be made to the insured for reasonable attorney fees. (Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P. 2d 829; Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432; Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219, and Lindesmith v. Republic Mutual Fire Ins. Co., 189 Kan. 201, 368 P. 2d 35.)
The judgment of the district court ordering payment of the principal sum due under the policy is affirmed. That part of the judgment ordering defendant to pay plaintiffs attorney fees in the sum of $400 is reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an original proceeding in habeas corpus wherein the petitioner seeks his release from the Kansas State Penitentiary, where he is presently confined pursuant to sentences rendered by the district court of Franklin County for the crimes of attempted larceny of an automobile (Case No. 2817) and of breaking jail (Case No. 2820).
The primary question presented is whether the petitioner, who was improperly granted a parole, is entitled to credit on his sentence for the time during which he was delinquent on such parole.
On September 16, 1955, the petitioner was sentenced by the Franklin County district court (Case No. 2817) to the Kansas State Penitentiary on his plea of guilty to an information charging him with attempting to steal an automobile in violation of G. S. 1949, 21-533 and 21-101. He was sentenced “until discharged therefrom according to law.” Reference to G. S. 1949, 21-534 and 21-101, Second, reveals that a term of from two and one-half years to seven and one-half years is prescribed for this crime.
After the petitioner’s conviction, but prior to his delivery to the State Penitentiary, he escaped from the Franklin County jail. On September 30, 1955, in the district court of Franklin County (Case No. 2820) the petitioner pleaded guilty to an information charging him with the offense of breaking jail in violation of G. S. 1949, 21-735. The court thereupon sentenced him to a term of two years which was increased to four years pursuant to the provisions of G. S. 1949, 21-107a, commonly known as the habitual criminal act. G. S. 1949, 21-735, provides that a sentence for breaking jail in violation of such statute must commence at the expiration of the original term of imprisonment.
The record discloses that the petitioner was paroled on July 2, 1958, and declared delinquent while on parole by the Board of Probation and Parole on September 8, 1958. The petitioner, however, was not returned to the Kansas State Penitentiary until January 14, 1962, thus making him delinquent on parole for a period of three years, four months and six days.
The petitioner contends that since he had not served the minimum time on his sentences; that is, the sentence imposed in Case No. 2817, and the minimum time required on the sentence imposed in Case No. 2820, the parole should not have been granted under the terms of G. S. 1961 Supp., 62-2245, and that by reason thereof he should not be required to serve the time he was delinquent on such parole.
The respondent concedes the petitioner was improperly granted a parole, but denies the petitioner is entitled to his release.
The provisions of G. S. 1961 Supp., 62-2245, authorize the Board of Probation and Parole to parole a prisoner “At any time after service of the minimum term of sentence.” The Attorney General of Kansas has ruled that where a prisoner is sentenced to two consecutive sentences, the minimum term which must be served before the prisoner is eligible for parole includes service of the first sentence in its entirety and service of the minimum term of the second sentence.
The petitioner in the instant case was paroled prior to the above opinion of the Attorney General and before the petitioner had served the minimum term as that phrase has been construed. It is thus apparent the petitioner should not have been granted the parole on the 2nd day of July, 1958.
The petitioner seems to reason that his release under these conditions was in effect a commutation of his sentence, citing In re Jones, 154 Kan. 589, 121 P. 2d 219; and that he should not be required to serve the time he was delinquent on parole because he was a fugitive from justice under the terms of G. S. 1961 Supp., 62-2250, last paragraph.
In the Jones case the Governor of Louisiana released a prisoner to Federal Authorities without making any conditions prior to his release, and the court held the Governor s action was in effect a commutation of the prisoner’s sentence. The case does not help the petitioner here who accepted a parole under specifically stated written conditions from the State Board of Probation and Parole.
This court has held that the expiration of time without imprisonment because of an abortive parole for which the petitioner had applied could not be deemed execution of a sentence of confinement. (In re Jackson, 107 Kan. 167,190 Pac. 608.)
The United States Court of Appeals for the Tenth Circuit said lapse of time without the imprisonment or restraint contemplated by law does not constitute service of sentence. (Yates v. Looney, 250 F. 2d 956, 957.)
The Supreme Court of Michigan has likewise indicated in In re Cammarata, 341 Mich. 528, 67 N. W. 2d 677, cert. den. 349 U. S. 953, 99 L. Ed. 1278, 75 S. Ct. 881, that a prisoner who has accepted the grant of his freedom upon certain conditions, and later violates them, cannot claim that the action which led to his release was an ultra vires act. See, also, In re Patterson, 94 Kan. 439, 146 Pac. 1009, where this court held that acceptance of a parole is acceptance of its conditions, and In re Tabor, 173 Kan. 686, 250 P. 2d 793, Syllabus ¶ 3, to the same effect.
The record in this case discloses that the petitioner was improperly sentenced by the district court of Franklin County in Case No. 2820 for the crime of breaking jail. The provisions of 21-735, supra, are that the penalty for breaking jail shall be “confinement and hard labor not exceeding three years.” The district court in ordering a two-year sentence, which was doubled to a term of four years under the habitual criminal statute, erroneously referred to G. S. 1949, 21-736, which relates to breaking jail before conviction.
It is also apparent the district court did not comply with the provisions of G. S. 1949, 62-1521 (now repealed but effective when the petitioner was sentenced in 1955), which read in part:
“. . . the court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum term provided by law for the crime for which the person was convicted and sentenced, . . .”
The rules applicable where the trial court imposes an erroneous sentence upon a criminal defendant are stated in Johnson v. Hand, 189 Kan. 103, 367 P. 2d 70, in the following language:
“It is therefore apparent the sentence imposed by the trial court was in error, and, being in error, it is considered to be void under our decisions. Edwards v. Hudspeth, 159 Kan. 37, 151 P. 2d 698; Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837, and authorities cited therein.) . . .
“Kansas has always considered an erroneous or irregular sentence the same as a void sentence, and thus within the power of a court to substitute a new and valid sentence. Under the circumstances this court may remand a prisoner for further proceedings in the district court to correct a void or erroneous sentence, . . .” (p. 104.)
The record in this case should not be left in a state of equivocation. (Pippin v. Edmondson, 177 Kan. 123, 125, 276 P. 2d 315.)
Although not disclosed in the record, it is a foregone conclusion from the filing of the writ herein that the State Roard of Probation and Parole determined the time, from the issuing of the warrant to the date of the petitioner’s arrrest, should not be counted as time served under the sentence. (See, G. S. 1961 Supp., 62-2250.)
In conclusion we hold the petitioner’s contention that he is entitled to credit on his sentence for the time he was delinquent on parole is wholly without merit, and he has not made it appear that he is entitled to his liberty at this time. Having accepted the parole, he cannot complain of being penalized for failure to comply with the conditions of his parole.
The sentence imposed by the district court of Franklin County in Case No. 2820 being void, it is ordered and directed that the petitioner be taken before the district court of Franklin County, Kansas, for imposition of a proper sentence in accordance with G. S. 1949,21-735 and 21-107a.
The writ is denied. | [
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The opinion of the court was delivered by
Jackson, J.:
This is a divorce action in which the plaintiff has filed his petition alleging that his wife has been incurably insane for a period of more than five years. She is presently an inmate of the Osawatomie State Hospital — a state institution for the insane. While she has not been in continuous .residence in any one hospital for a period of five years, it is shown she has been in mental institutions and under psychiatric care in excess of five years.
In view of the above situation, the guardian ad litem appointed for the wife filed a demurrer to the petition of the husband and the trial court sustained the demurrer despite the amendment of the statute as found in G. S. 1961 Supp., 60-1501. The statute now reads as follows:
“Eleventh, insanity for a period of five (5) years, the insane person having been an inmate of any state or federal institution for the insane, or of a private sanitarium, and affected with any incurable type of insanity: Provided, That no divorce shall be granted because of insanity until after a thorough examination of such insane person by three (3) physicians to be appointed by the court before which such action is pending, all of whom shall agree that such insane person is incurable: Provided further, however, That no divorce shall be granted on this ground to any person whose husband or wife is an inmate of a state institution in any other than the state of Kansas, unless the person applying for such divorce shall have been a resident of the state of Kansas for at least five (5) years, prior to the commencement of an action: And provided further, That a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant.”
The original draft of the Eleventh ground for divorce, Ch. 228, Laws of 1931, read as follows:
“Eleventh, insanity for a period of five years, the insane person having been an inmate of a state institution for the insane in the state of Kansas, or an inmate of a state institution for the insane in some other state for such period, or of a private sanitarium, and affected with any of the following types of insanity: paranoia; paresis; dementia praecox; Huntington’s chorea, or epileptic insanity: Provided, That no divorce shall be granted because of insanity until after a thorough examination of such insane person by three physicians who are recognized authorities on mental diseases, one of which physicians shall be a superintendent of a state hospital for the insane, and the other two physicians to be appointed by the court before whom the action is pending, all of whom shall agree that such insane person is incurable: Provided further, however, That no divorce shall be granted on this ground to any person whose husband or wife is an inmate of a state institution in any other than the state of Kansas, unless the person applying for such divorce shall have been a resident of the state of Kansas for a least five years prior to the commencement of an action: And provided further, That a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant.”
It is clear from the last provision that the insane spouse must have been in a mental hospital for more than five years before the cause of action would lie. The language was changed somewhat in both the 1947 and the 1951 versions.
It will be noticed, of course, that the wife in this action had been in mental hospitals or institutions for considerably more than five years.
The statute may have been amended to more nearly fit most cases of incurable insanity. Although years ago, the mentally ill were simply put under custodial care and kept there, psychiatry is more experimental in these days. The wife in this case had been in and out of mental hospitals, public and private, since the early part of 1956, or for seven years.
Laws of 1931, Ch. 228 as noted read as follows:
“Eleventh, insanity for a period of five years, the insane person having been an inmate of a state institution for the insane in the state of Kansas or an inmate of a state institution for the insane in some other state for such period or of a private sanitarium ...” (Emphasis added.)
It will be seen that in the 1947 and 1951 versions of the act, the language “for such period” is omitted.
A case in point is State, ex rel., v. Richardson, 174 Kan. 382, 386, 256 P. 2d 135, where it is said:
“We will presume that the legislature in revising the mentioned statute intended to make some change in the existing law and we will, therefore, give effect to the amendment. A change in phraseology or a deleting of a phrase of tire original act raises a presumption that the change of meaning was also intended. Summarized, it may be said that under G. S. 1949, 72-317, it was necessary to hold an election, that section being repealed by G. S. 1951 Supp. 72-507, the provisions pertaining to election being omitted, an election authorizing the joint building is not required, but is to be determined by the boards of the respective districts. Any other construction would simply mean the legislature accomplished nothing by its revision. It must be assumed it was intended to supply some want, to fill some deficiency, to add something to make existing legislation more complete. (Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 674, 63 P. 2d 165; City of Emporia v. Norton, 16 Kan. 236.) Section 72-507 is complete in itself. It says definitely the two boards shall determine the question. They did so and the trial court erred in holding otherwise.”
The majority of the court is of the opinion that the statute now means the insane spouse must have been insane for a period of five years but that it is not necessary to show that the insane spouse has been a patient in any mental hospital or institution continuously for the five years. The statute would rather put the test upon the three physicians who must agree that the spouse is incurably insane.
We know that the Topeka State Hospital has not been filled to capacity for some time since many of its patients are allowed to live outside as “out patients.” Under modern methods of treatment of mental illness, it would be a most severe case where the patient was confined during all of the first five years.
We believe the trial court erred in passing upon the statute and that the demurrer of the guardian should be overruled. It is our opinion that the husband is entitled to a divorce if three court-appointed physicians agree that the wife is incurably insane. The order sustaining the demurrer is reversed and the case remanded for further procedure in keeping with the above opinion.
Parker, C. J., and Robb, J., dissent. | [
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The opinion of the court was delivered by
Jackson, J.:
This appeal involves a damage action based upon an automobile collision in Wichita. The plaintiff-appellant recovered a verdict but brings this appeal claiming the damages assessed by the jury were inadequate, and that she should have been granted a new trial.
The accident occurred on May 28, 1960, at approximately eight o’clock in the evening. Appellee was driving in a northerly direction on Broadway Street or North U. S. Highway 81 in Sedgwick County, Kansas. At the time it was dark, warm and raining, and after signaling for some 300 feet with his turning light, he drove into a private drive after making a left turn. Appellant testified that at the time she entered or left the intersection of Broadway and 33rd Streets she saw appellee start to make his left turn. On cross-examination, appellant testified that she was just past the intersection when she first saw appellee making his left turn. Still later it appeared that appellant meant that she had gone some 50 or 100 feet past the intersection when she first saw the appellee turning.
Appellee testified that he saw appellant just as she left the intersection and that he had already commenced his turn.
An expert witness testified in answer to a hypothetical question that appellant’s speed must have been 66.1 miles per hour at the time áppellee first began his turn. Appellant had testified that she hit her brakes as soon as she was aware of appellee’s turning car.
Officer Stackley, one of the experts, testified that appellant’s car should have come to a stop before hitting appellee’s car, if traveling only 40 miles per hour. The speed limit was said to be 40 miles an hour.
It might also be mentioned that appellant’s car traveled some 200 feet beyond the place of impact with appellee’s car as it went into the driveway and also sideswiped another north bound car on Broadway.
In finding the verdict for the appellant the jury answered five questions as follows:
“We, the Jury, impaneled and sworn in the above entitled case, do upon our oath find in favor of the plaintiff and assess damages as follows: First cause of action: $750.00. Second cause of action: $ none. Date of this verdict April 5, 1962.
“And the jury did further make and return the following answers to the following special questions, to-wit:
“Question No. 1: At the time when the defendant was commencing his left turn into the driveway how many feet north of the driveway was the plaintiff’s automobile?
“Answer: 50 to 75 feet.
“Question No. 2: What was the speed of the plaintiff’s automobile at the time when the defendant was commencing his left turn into the driveway?
“Answer: 40 M. P. H.
“Question No. 3: Do you find that the speed found by you in the preceding question was a contributing cause of the accident and the alleged injuries of the plaintiff?
“Answer: No.
“Question No. 4: Was the plaintiff driving her automobile at a speed which was reasonable and prudent under the conditions existing at the time?
“Answer: Yes.
“Question No. 5: l£ you find for the plaintiff, then state what act or acts of negligence you find against the defendant?
“Answer: Failure to exercise proper caution in negotiating a left turn under the prevailing weather conditions.
“Date April 5, 1962.”
It will be noted that in the answer to Question 1, the jury placed the two cars nearer together than indicated above.
The trial court found and ordered that the verdict should be accepted and discharged the jury.
While the evidence was not too clear as to whether appellant or appellee was negligent, there was no question as to the answers to the special questions and we are going to take the opinion of the trial judge as to the validity of the verdict. See Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60.
In arguing the case appellant attempts to assert that the evidence of pain and suffering and disability was conclusive on the jury. We do not so read the evidence.
In the trial the appellant used a Dr. Lovett and did not call the doctor who had taken care of the appellant. In testifying in answer to a hypothetical question, Dr. Lovett said, in answer to a statement of counsel which asked:
“. . . do you have an opinion, based on reasonable medical certainty, as to whether there is or could be a causal connection or relationship between that injury and disability, which you found, and the accident in which this lady was involved?
“A. I think there could be a causal relation.” (Emphasis supplied.)
The doctor further testified that a varicose vein condition developed separately and was not at all involved as an injury received from the accident.
The cross-examination of the doctor continued and we find a question and answer as follows:
“A. Well, I think they could show in one way that she did have a reason for having pain, but I couldn’t relate it to the accident, if that is what you mean.
“Q. Anything that might be related to this accident then, doctor.
“A. Nothing.
“Q. So that you found no evidence here, for example, that there was any decrease in the space between two of these vertebrae or two of these bones which would indicate that this disc material in between the vertebrae was ruptured or that anything had happened to it?
“A. That’s right.”
While appellant may argue that her evidence was undenied as to her car damage, even that would not prevent the jury from raising some question as to it if they had reason to doubt it. In the case of In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, at page 439 we find the following discussion. We believe it is apropos to the matter in hand. We quote the following:
"Plaintiff erroneously argues that finding as though a demurrer had been interposed and sustained to her evidence. She claims there was uncontradicted evidence to support her claim and the court was therefore obliged to allow it. The contention cannot be sustained. Assuming there was no evidence which directly contradicted the testimony offered in her behalf, the trial court was not compelled to accept that testimony and to give effect thereto. As the trier of the facts, it was the province and duty of the court to determine what weight and credence it would give to the testimony of the witnesses on both sides of the case. Of course, a jury or court cannot arbitrarily or capriciously refuse to consider the testimony of any witness but, on the other hand, it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence is uncontradicted. (State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986; Potts v. McDonald, 146 Kan. 366, 69 P. 2d 685; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230; Briney v. Toews, 150 Kan. 489, 494, 95 P. 2d 355; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.)”
We might point out that the second cause of action in the appellants petition was based upon the alleged failure of the appellant to be able to render service to her husband. Appellant asked $5,000.00 based upon the second cause of action. The jury was unable to find any loss to appellant’s husband which the jury was able to say occurred because of the automobile wreck here involved.
There was sufficient evidence to support the jury’s verdict and it was approved by the trial court and the judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the defendant in a criminal action from all orders, judgments and decisions of the trial court and especially from the trial court’s order overruling defendant’s motion for new trial.
Defendant was charged, under G. S. 1961 Supp., 41-901, with selling alcoholic liquor at retail without first obtaining a state license to sell such liquor. Roth parties waived a trial by jury and agreed to submit the case to the court.
The state’s evidence consisted of certain stipulations growing out of a number of colloquies had between counsel for the parties, and between them and the trial court, and in condensed form were to the effect that the action was based upon G. S. 1949, 41-1004, which states in pertinent part that the possession of a special tax stamp from the government of the United States authorizing the sale of alcoholic liquor by a person not licensed under G. S. 1961 Supp., 41-901, shall be prima facie evidence the person holding such special tax stamp is selling alcoholic liquor in violation of our Kansas statute; that the state had no evidence of an actual sale in the case but was relying upon the stipulations; and that the quantity of liquor found on defendant’s premises consisted of forty-three fifths and three pints of various named wines, ten and one-half quarts and eleven pints of whisky, and some gin and vodka. The state rested at the conclusion of the stipulations and defendant demurred to the state’s evidence which demurrer was overruled. We pause to note that the parties have failed to cite any authority showing that a demurrer is proper in a criminal case and our research has produced none.
The provision of 41-1004 is clear that possession of a special tax stamp of the federal government authorizing the sale of alcoholic liquor is prima facie evidence that the person holding such special tax stamp is selling liquor in violation of the act and such statutory provision cannot be ignored. Since the state by the above stipulations, presented a prima facie case, the trial court did not err in overruling whatever it considered the demurrer to the state’s evidence to be.
However, defendant did not rest upon his purported demurrer but had himself called as a witness and testified that he had been in possession of the federal tax stamp for approximately one or two years. When asked why he purchased the stamp, he answered, “Well, I had intentions of selling some liquor.” Defendant stated he kept liquor around the premises for parties he had there and also testified:
“Q. This whiskey there is just for your use, is that right, for you to drink alone? A. Well, me and all my friends.
“Q. And you provide the whiskey for all these parties, is that right? A. No, I don’t provide it all, they pay for it.” (Our emphasis.)
Defendant further testified he had parties at his house once or twice a week with ten or twenty people present and the people who were there paid for part of the liquor and beer.
After all the evidence was submitted the trial court found the defendant guilty and pronounced sentence. No question is raised on appeal concerning the sentence.
Defendant asked for and was granted permission to file a motion for new trial wherein he stated (1) the court had wholly ignored the stipulated evidence setting out that on the day in question no sale of liquor had been made by the defendant; (2) the trial court’s judgment was not sustained by sufficient evidence; and (3) the court erred in arbitrarily creating a conclusive presumption of guilt from prima facie evidence. The motion for new trial was overruled. Hence this appeal in which it is specified as error that the trial court erred in refusing to sustain defendant’s demurrer to the evidence of the state, which point we have already sufficiently covered herein and need not discuss further; and that the trial court erred in refusing defendant a new trial when the judgment was not sustained by the evidence, and no evidence was introduced by the state. The plain and simple answer to the second contention is that when defendant saw fit to take the stand and testify that he kept wine, whisky, gin and vodka in his home for the benefit of his guests and that he received payment for sale of such alcoholic liquors .to such guests, he thereby cured any defect in the state’s evidence as to sale.
It is further urged the trial court erred in arbitrarily creating a conclusive presumption of guilt but the record discloses that defendant, in taking the witness stand not only failed to rebut any of the prima facie evidence deduced from the stipulation of the parties but by his own testimony furnished the evidence sufficient to sustain a conviction by the jury.
Finally, it is contended the trial court erred in holding there was a rational connection between the possession or a special tax stamp of the federal government and the sale of liquor sufficient to overcome the statutory presumption of innocence. In this appeal the burden is upon defendant to show that his substantial rights were prejudicially affected but this he has failed to do. Without repeating what has already been stated herein, we think the record, which reflects defendant’s own testimony, is sufficient to support the judgment of the trial court.
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The opinion of the court was delivered by
Parker, C. J.:
This is a bastardy proceeding instituted under the provisions of G. S. 1949, Chap. 62, Art. 23, which provides, among other things, that the rules of evidence and tibe competency of witnesses shall be the same as in civil cases and that the trial and proceedings of the prosecution in district court shall in all respects, not therein otherwise provided for, be governed by the law regulating civil actions.
We are not disposed to burden our reports with the facts of the case since, as will presently be disclosed, they are neither necessary nor required in order to dispose of the decisive questions raised by the appellee (defendant) respecting the rights of the appellant (State) on appellate review.
For all purposes essential to a disposition of the decisive questions involved it suffices to say:
That the case was instituted and came on for trial in accord with the provisions of the statute above cited.
That during the course of the trial the trial court admitted evidence, in the form of a stipulation of facts, which appellant claimed, and the appellee denied, was sufficient to establish the fact of nonaccess between the relatrix and her living husband during the involved period of gestation.
That after the stipulation had been admitted the appellant attempted to introduce evidence on the part of the relatrix to the effect the appellee was the father of the child in question. Appellee objected to all evidence of this character on the ground the relatrix was not competent under the circumstances to testify so as to bastardize such child. Ultimately the trial court sustained the objection and refused to admit the evidence.
Following exclusion of the foregoing testimony appellant did not see fit to offer further evidence. Upon its failure to do so the trial court found that the cause should be dismissed and rendered its order and judgment accordingly. Thereupon appellant gave notice of appeal from the judgment and order of the district court dismissing the action and brings the cause to this court with an abstract, containing a single specification of error, which states in substance that the trial court erred in sustaining appellee’s objection to any testimony on the part of the relatrix.
On oral argument, and by a motion to dismiss, based on jurisdictional grounds, appellee directs our attention to the fact that although appellant appealed from the order and judgment dismissing the involved bastardy proceeding it failed to specify that action as error, hence the propriety of such ruling is not subject to appellate review.- This contention has merit and must be upheld. We note a few of the decisions supporting this conclusion.
Rice v. Hovey, 180 Kan. 38, 299 P. 2d 45, holds:
“Rule No. 5 of the Supreme Court requires that the abstract of the appellant shall include a specification of the errors complained of, separately set forth and numbered.
“Appellants’ failure to comply with Rule No. 5 of the Supreme Court Rules (174 Kan. XI; G. S. 1949, 60-3826 [now 188 Kan. XXVII]) by including in their abstract of record an abstract of the pleadings and of the evidence to enable this court to arrive at a full understanding of the questions involved and their failure to include a specification of errors complained of separately set forth and numbered, is fatal, and following Miller v. Rath, 173 Kan. 192, 244 P. 2d 1213 and Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626, the appeal is dismissed.” (Syl. ¶ 1 & 2.)
And in the opinion states:
“Error is never presumed and it is the duty of the party complaining to indicate wherein it was committed. This court cannot review error, which is claimed was committed, if none is specified (Quick, Receiver v. Purcell, supra).” (p. 39.)
To the same effect is Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626, where it is held:
“On appeal the rule is that error is never presumed, and it is incumbent upon the party complaining to indicate wherein it was committed.
“Rule No. 5 of the Supreme Court requires that the abstract of the appellant shall include a specification of the errors complained of, separately set forth and numbered.
“A motion for a new trial or a notice of appeal does not constitute a specification of the errors complained of within the meaning and purport of Rule No. 5 of the Supreme Court.” (Syl. ¶[¶ 1, 2 & 3.)
And in the opinion said:
“Manifestly, this court cannot review error which is claimed was committed, if none is specified. Error is never presumed (Quivira, Inc. v. Quivira Co., Inc., 173 Kan. 339, 245 P. 2d 972; Elliott v. P. H. Albright Farm Loan Co., 129 Kan. 280, 282 Pac. 749), and it is the duty of the party complaining to indicate wherein it was committed. (Fakes v. Osborne, 165 Kan. 176, 193 P. 2d 218.) All that the abstract of the instant appeal contains is a motion for a new trial and a notice that appellant appeals from the judgment rendered against him. A motion for a new trial or a notice of appeal does not constitute a specification of error within the meaning and purport of Rule No. 5. (Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377.)” (P. 320.)
For supporting decisions of like import see Lambeth v. Bogart, 155 Kan. 413, 415, 125 P. 2d 377; Miller v. Rath, 173 Kan. 192, 193, 244 P. 2d 1213; Jeffers v. Jeffers, 181 Kan. 515, 517, 313 P. 2d 233; Wilson v. Evans, 185 Kan. 520, 522, 345 P. 2d 1002; Otto v. Swartz, 186 Kan. 689, 692, 693, 352 P. 2d 12; In re Estate of Rosey, 187 Kan. 254, 256, 356 P. 2d 849; Jones v. Kansas City Embalming & Casket Co., 190 Kan. 51, 372 P. 2d 60. See, also, page 259 of the opinion in Blevins v. Daugherty, 187 Kan. 257, 356 P. 2d 852, which cites numerous authorities dealing with situations where the rule has been considered, discussed, and applied, under divers conditions and circumstances, in many decisions, both civil and criminal.
In passing we are not unmindful the record discloses a single specification of error to the effect the trial court erred in sustaining appellee’s objection to any testimony on the part of the relatrix. We are not concerned with the propriety of this claim of error for, under our decisions, rulings not particularly specified in or raised by a notice of appeal present nothing for appellate review. See, e. g., Baker v. Maguire’s Inc., 176 Kan. 579, 272 P. 2d 739; Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P. 2d 849; O’Brien v. Jones, 183 Kan. 170, 326 P. 2d 257; Otto v. Swartz, 186 Kan. 689, 693, 352 P. 2d 12.
Under the related facts and circumstances adherence to Rule No. 5 and the decisions heretofore cited requires that the instant appeal be dismissed.
It is so ordered. | [
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