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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment forfeiting an automobile as a nuisance because it had been devoted to the business of transporting intoxicating liquors.
On November 6, 1930, the car was discovered on a busy street in Topeka. It was “double parked” in a way which prevented other parked cars from backing away from the curb. This attracted the .attention of a traffic policeman, who took the car to the police station. A newspaper in the car contained the address of Vincent Eecleston, a resident of Kansas City, Mo. The same day Eecleston reported the car to the police department of his home town as being-stolen. Although notified of the proceedings to forfeit the car, Eecleston did not venture into this jurisdiction to claim it.
The appellant filed an answer in the proceedings, setting up a chattel mortgage which covered the car executed by Vincent Eccleston, and alleged that he had purchased the car on the installment plan from a Topeka car dealer.
Judgment of forfeiture was decreed against the automobile, and the chattel mortgagee appeals.
1. The first contention is that the state waived its right to confiscate because the information contained a typographical error in the number of the motor of the car. The car was'described thus:
“One Ford coupé, motor number A-347085 with Missouri license number 643-177.”
The correct number of the motor was A-3470825, and at the trial the state was permitted to amend the information in that particular. The statute, R. S. 21-2162 to 21-2167, inclusive, does not require the stating of the motor number of an automobile subjected to forfeiture proceedings. On the contrary it says:
“In said complaint or information it shall not be necessary to accurately describe the automobile, vehicle or other property so used, but only such description shall be necessary as will enable the officer executing the warrant to identify it properly.” (R. S. 21-2163.)
2. The next contention is that the liquors found in the automobile were not shown to be intoxicating. A witness for the state testified that in the rumble seat of the car were three grips, two hand satchels and one portfolio. In these were bottles and cans of alcohol and whisky. On cross-examination the witness, a policeman, was asked about his familiarity with such beverages and he said he could identify whisky by its smell. This was sufficient. (State v. Brown, 119 Kan. 874, 241 Pac. 112.)
3. The next point urged is that the state had adduced no proof that the car was not stolen in Kansas City, Mo., on the day it was found on the street in Topeka. The state had no such burden. When it had shown that it was being used in transporting liquors its case against the automobile was complete. The fact, or pretense,, that the car had been stolen from its owner in Missouri would not necessarily exempt it from confiscation. (State v. Stephens, 109 Kan. 254, 198 Pac. 1087; State v. Morris, 124 Kan. 143, 257 Pac. 731; State v. Boucher, 126 Kan. 796, 271 Pac. 278; Commonwealth v. Certain Motor Vehicle, 261 Mass. 504; and see Anno. — Property-Used in Violating Liquor Law, 47 A. L. R. 1055.) Moreover, the-statutory notice was given to the owner and all others concerned to-show cause why the automobile should not be adjudged forfeited,, and the owner did not appear. This appellant, who did appear,, claimed a special ownership of the car by virtue of a chattel mortgage, but it is settled law that the claim of a mortgagee of an automobile put to illegal use will not prevent its forfeiture under the statute. (State v. Stephens, supra; State v. Morris, supra.)
It is finally contended that the state did not show by competent, evidence that the car belonged to Vincent Eccleston as charged in the information. We think it did. Moreover, proof of that fact was: not necessary to the state’s case; and furthermore, if Eccleston was-not the owner of the car, this appellant, whose only claim to it is, based on the chattel mortgage executed by him, has no concern with, this lawsuit.
The record contains no error and the judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a money judgment against Rachel R. Kramer for an indebtedness owed by her father, the late W. J. Grist, of Jefferson county.
Plaintiffs’ theory of the action was based on the assumption that Rachel had possessed herself of certain assets of her father’s estate at his death and converted them to her own use, and was liable in consequence for his indebtedness to plaintiffs to the extent of the assets she had thus obtained which had belonged to her father.
Plaintiffs alleged that they were partners in the lumber and hardware business at Rock Creek in Jefferson county; that until his death in January, 1928, W. J. Grist, owned and operated a farm of 480 acres in that vicinity; and that plaintiffs had sold to him various goods, wares and merchandise upon an open running account, and that Grist owed plaintiffs the sum of $993.74 therefor.
Plaintiffs further alleged that some time prior to his death Grist and his daughter Rachel formed a conspiracy to defraud his creditors, and to that end he secretly executed to her and to her husband, Roy Kramer, certain bills of sale and other instruments pretending to convey all his real and personal property, and that no consideration passed to Grist therefor.
It was further alleged that no administration of the estate of W. J. Grist had been instituted by Rachel or anyone else, and that she had announced her intention not to have such estate administered under supervision of the probate court.
Plaintiffs also alleged that on the death of her father, Rachel immediately took possession of the Grist farm and all the personalty and caused sale bills to be printed and published to the effect that all the personal effects on the premises would be sold at public auction on February 17, 1928.
On that date plaintiffs filed this action and obtained from the probate judge a temporary restraining order to prevent the holding of the auction. The order was served forthwith, and Rachel and her husband immediately gave bond to deliver the proceeds into the control of the court and to abide its judgment, and the sale was permitted to proceed.
Later plaintiffs filed an amended petition setting up the facts originally alleged with some further detail. Defendants answered with a general denial, and raised the legal point that plaintiffs could not maintain the action, and alleged that there were other debts of the estate of W. J. Grist than that due the plaintiffs.
Other parties were impleaded in the action, some of whom filed pleadings, but their rights are of no present concern.
A jury was waived and the cause was tried at length. The court made fifty-four findings of fact which cover fifteen printed pages of the abstract, and concluded therefrom that judgment for costs should be rendered in favor of defendants.
Plaintiffs appeal, specifying various errors which will be considered as nearly as practicable in the order of their presentation.
1. Error is assigned on the trial court’s holding that the certificates of sale for the milk cows, horses and mules passed good title to the miscellaneous farm chattels which defendant Rachel sold at auction on February 17, 1928, shortly after her father’s death. It is quite true that of the particular certificates of sale which were introduced in evidence one covered horses and mules and the other cows and heifers, and neither referred to the farm machinery, poultry and swine. However, as we read the findings, the trial court did not hold that those particular assignments of sale passed title to the miscellaneous chattels on the Grist farm. Rachel testified that there were other certificates of sale executed to her by her father which had been mislaid or lost. The witness Owens, who appeared to know a good deal about Grist’s business during his last years, testified that Grist did not own any farm machinery. Roy Kramer testified that the harrow, cultivator, corn planter and other implements which were sold at the auction belonged to himself and his wife. There were twenty-five items on this list, which included such articles as a lard press, an oiler and a “lot of junk,” as well as the miscellaneous farming equipment. These twenty-five items brought $102.10 at the sale— according to our computation of the pertinent part of finding No. 52. There was substantial testimony to show that the cattle were part of a herd which Rachel’s father had mortgaged to one Martin to secure a bona fide indebtedness, and that she had assumed that mortgage, and that part of the cattle sold-at the auction were those mortgaged to Martin and their increase. Other cattle had been purchased by Roy Kramer and taken to the Grist' farm. The swine sold at the auction were shown to be the increase of some sow pigs placed on the farm by Roy Kramer. The poultry had been taken to the Grist farm from the Kramer home in Ozawkie. The foregoing is not a complete summary of the evidence touching the ownership of the personal chattels sold at the auction, but it will serve to show that the error assigned on the want of evidence to support the pertinent finding of the court cannot be sustained. The suggestion is made that there was no change of possession to Rachel. The evidence inherent in the circumstances would justify a finding to the contrary, one to the effect that when Rachel acquired the farm and arranged to have her father occupy it for the rest of his life that she was in fact in possession of it and all the personalty thereon, and that the occupancy of W. J. Grist was merely that of Rachel’s tenant and agent. He did business in her name, wrote checks in her name or her husband’s, and when he needed, cash in these transactions "he had to go to Rachel for the money.”
2. Error is also assigned on the court’s finding that Rachel had acquired good title to the Grist farm of 480 acres. To a reviewing court that finding is apparently so unassailable that we marvel at appellants’ contention to the contrary. The farm had been sold in foreclosure to satisfy first and second mortgages amounting to about $20,000. The time to redeem was running out. Grist’s efforts to obtain a new loan to redeem the farm had been unsuccessful, chiefly because he was burdened with $50,000 indebtedness to other creditors. Grist made a deed to Rachel, hoping she could borrow the requisite money to redeem the farm, but that effort was futile. That deed did not convey anything to Rachel. When the time to redeem had expired the Citizens State Bank of Valley Falls became the absolute owner of the farm, having bought it at foreclosure sale to protect its interest as second mortgagee. The bank held title by sheriff’s deed. That the bank did not want the farm and was still willing that Grist or his daughter might have it for the amount of money the bank had in it took nothing from the strength of the bank’s title. Eventually a plan was devised by which Rachel could acquire the farm. That plan was to get a^deed to it from the bank and mortgage the farm on her own responsibility and to scrape together money enough by the sale of her own and her husband’s assets to pay the bank. It would serve no purpose to go into details of that transaction. The older Grist had no part in it other than his natural concern to see his daughter get the farm which had once been his but which he had irrevocably lost. There was no place in that transaction where the question of Grist’s good or bad faith could have affected it in the slightest degree. If the bank had made Rachel a present of the farm, plaintiffs could not question the validity of her title.
3. Plaintiffs complain because the trial court did not make specific findings on certain evidential matters to which plaintiffs would attach much significance. We think that the fifty-four findings which the court did make were more than sufficient to cover the matters in issue, and to indicate with sufficient clarity the proper judgment to be rendered in the action, as well as to enable a reviewing court to discern with what candor and consideration the trial court did deal with the evidence. That fully satisfied the statutory requirements touching special findings. (Alexa v. Alexa, 108 Kan. 38, 193 Pac. 1083; Diver v. Fourth National Bank, 132 Kan. 36, 294 Pac. 924.)
In Phillips v. Okey, 111 Kan. 732, 207 Pac. 1106, it was said:
“In making findings of fact as required by the civil code, section 297, the trial court is not bound to adopt and follow a categorical outline of questions of fact submitted by the litigants or either of them.” (Syl. If 3.)
4. Plaintiffs would make a point out of the fact that W. J. Grist did not comply with the purported terms of the life lease by which he held the farm under a grant from Rachel. We fail to see how that fact concerns these plaintiffs. If Rachel was satisfied with her life tenant’s performance or nonperformance, no one else could be heard to complain. Manifestly her chief concern was to provide a home for her father in his old age. Of course, a good talking point against the bona fides of the lease from Rachel to her father can be made from Grist’s failure to keep up the improvements and pay the taxes and the interest due on the mortgages which Rachel had given on the farm, as he had agreed to do, but such an argument does not compel a conclusion that Rachel converted to her own use any property of her father’s estate, and that is the limit of plaintiff’s concern with her and her father’s business arrangements in this lawsuit.
5. The nearest appellants get to a material point against the correctness of the judgment is in relation to certain specific property which plaintiffs allege that they sold to Grist and which Rachel took charge of and sold at the auction on February 17, 1928. A witness testified that there were four monitors and riding listers purchased from plaintiffs, and that these were on the farm when Grist died. The sale bill indicated that a “1-row monitor” would be offered for sale at the auction, and the clerk’s list of what was sold has an item showing that one monitor was sold for $14.80. The list of chattels sold does not indicate the sale of any other monitors and does not show the sale of any riding lister. There was no evidence to show that the “1-row monitor” sold at the sale for $14.80 was one of the four monitors alleged to have been purchased by W. J. Grist from plaintiffs. S'o an apparently complete answer to this point urged by plaintiffs is that plaintiffs failed in their proof. Moreover, there is no such thing in this state as a general vendor’s lien on chattels where the vendor parts with their possession. If such a lien is desired it must be arranged for between vendor and vendee by special contract or chattel mortgage. (Davison v. Davison, 125 Kan. 807, 810, 811, 266 Pac. 650.)
6. Error is assigned in permitting Rachel to testify on her own behalf regarding transactions with her deceased father. This testimony had reference to Rachel’s promise to her father to pay the debt he owed to one Martin, who had a mortgage on Grist’s herd of milk cows. But that fact was otherwise competently shown, and as there was no jury to be misled by the admission of this technically incompetent evidence, the error was nonprejudicial. (Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Giacomini v. Giacomini, 128 Kan. 699, 280 Pac. 916.)
7. The other objections to the judgment have been patiently considered, but they are not of sufficient gravity to disturb the judgment and would not justify further discussion. Throughout our review of this record we have been impressed that it is merely a chronicle of disputed facts with which it was the peculiar province of a trial court to deal and one which does not lend itself readily to modification on appeal. Mayhap the plaintiffs would have had better success in their effort to show that Rachel possessed herself of some of her father’s chattels if they had caused an administrator to be appointed and had set to work the machinery of the law for the administration of decedents’ estates, but even an administrator would have had to show that defendants had obtained possession of W. J. Grist’s property and had converted it to their own use before he could have gotten a hold of such assets and reduced them to cash so as to pay the just demands of plaintiffs — a task which might have been no more successful if undertaken by an administrator than it has been without one. At all events no palpable error appears in the record, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover upon an accident policy for being struck by lightning, with the usual requirement that the bodily injuries sustained be through accidental means, directly and independently of all other causes. The verdict and judgment were for the plaintiff.
Defendant insurance company appeals, assigning as error the overruling of objections to the use and form of certain hypothetical questions asked by plaintiff, the overruling of the demurrer to evidence of plaintiff, the giving and refusal to give certain instructions and overruling the motion of defendant to set aside answers returned by the jury to certain special questions. There was no contention that the plaintiff was not suffering a disability at the time of the trial from neurasthenia and psychoneurosis, and the jury in two separate answers so found.
The contention of the appellant is that this condition was not the result of a stroke of lightning on June 16, 1927, but that it had existed nearly a month prior to that time and was coexistent with an operation for appendicitis on May 20, 1927, and was aggravated by two subsequent operations which were natural sequents of the operation for appendicitis.
The jury answered several questions contrary to the appellant’s contention on these lines, among which are the following:
“What do you find to be the moving, direct and proximate cause of the plaintiff’s condition? A. Struck by lightning.
“Do you find that the plaintiff’s disability resulted from bodily injuries sustained by accidental means directly and independently of all other causes? A. Yes.
“If you answer question No. 1 in the affirmative, then state:
(a) When? A. June 16, 1927.
(b) How? A. Struck by lightning.
(c) The nature and character of said bodily injuries. A. Shock to nervous system.
“Do you find that plaintiff Stecher was suffering from neurasthenia on or prior to May 20, 1927? A. No.
“Do you find that plaintiff Stecher was suffering from psychoneurosis on or prior to May 20, 1927? A. No.”
The appellant contends that the verdict, answers to special questions and judgment should not stand and the plaintiff be permitted to recover when the undisputed evidence submitted by the plaintiff shows that the disease or physical ailment, which is the sole cause of the present inability of the plaintiff to work, is the same identical disease from which he was suffering nearly a month before the lightning stroke occurred.
This undisputed evidence submitted by the plaintiff, showing the preexistence and identity of the disease now producing or causing the disability, is the basis of the argument of the appellant for the errors claimed to have been committed by the trial court in overruling the objections to certain hypothetical questions asked by plaintiff, overruling the demurrer to the evidence of plaintiff, giving and refusal of instructions and” refusing to set aside answers to certain special questions. The argument of the appellant contained in the very statement of the proposition is unanswerable if the premises are accurate.
To determine the accuracy and force of premises as stated, some preliminary inquiries are necessary. First, is the plaintiff bound and conducted by the testimony of his own witness, when the evidence given by such witness is against the interest of the plaintiff? The emphasis placed upon the fact of the evidence having been submitted by the plaintiff would lead one to infer there was a distinct difference as to the source of it, but while a party cannot impeach his own witness nor attempt to discount his credibility, yet he is never concluded by the statements made by any of his witnesses other than himself, and can with his other witnesses contradict such statements, leaving to the jury to determine, even among his own witnesses, the matter of weight and credibility. (Wallach v. Wylie, 28 Kan. 138; Deering v. Cunningham, 63 Kan. 174, 65 Pac. 263; and Walls v. Zinc Co., 113 Kan. 700, 216 Pac. 308.)
The evidence referred to as having been submitted by the plaintiff was that of the physician and surgeon who was selected and employed by the plaintiff himself to perform the operation for appendicitis, and the two subsequent operations, and who did perform them. He was the only physician who testified as to the facts and circumstances in connection with or surrounding the three operations. Many of the details concerning those operations are apparently not necessary to the determination of the issues here involved relative to the origin and identity of the disease with which the plaintiff now suffers. As far as any of the details may be involved, the evi dence of this physician was undisputed by other physicians. His professional opinions and conclusions, however, were disputed by them in some instances based upon the facts and circumstances related by him, and some of his opinions were disputed by the plaintiff himself and by other witnesses who were not physicians.
Special emphasis is placed upon the testimony of this physician as to the physical condition of the plaintiff prior to the lightning incident on June 16,1927. He testified in answer to questions asked by the plaintiff’s counsel that he saw the plaintiff shortly before the trial and that “He is suffering from chronic neurasthenia.” He was then asked, “What in your opinion, Doctor, is the cause of that condition which you last found him to be in?” and his answer was, “He had the condition when I first saw him. He was neurasthenic at that time in May, 1927.”
As opposed to this opinion the plaintiff himself testified that he was twenty-nine years old, gave his business, duties and activities and further said: “My health was in good shape prior to March. I weighed 150 pounds. Did not know there was anything wrong with me. I slept well at nights and worked hard during the daytime. On the 20th of May, 1927, I was operated on. I was in the hospital nineteen days from the operation. I had been feeling good and expected to go to work within ten days. I was not nervous. I slept well nights and was able to be up walking around.” At another place, after describing the lightning stroke and his condition two or three days thereafter, he said: “I began to feel nervous and some pain started back.”
The mother o'f the plaintiff testified that before he was operated on he was “an industrious, vigorous, healthy boy,” and described his nervous condition after the stroke.
His father testified with reference to his condition after the operation for appendicitis that “He was not nervous after he got back from the hospital.”
Three other neighbors and friends testified to his apparent good health prior to the time of his operation for appendicitis.
If the existence of this nervous condition professionally expressed by the word “neurasthenia” is such as can be detected and recognized only by an expert, then the evidence of this physician as to it prior to the operation is undisputed. Appellant cites the case of Sly v. Powell, 87 Kan. 142, 123 Pac. 881, in support of the theory that it was a matter for expert medical testimony only and in justification of the position maintained by the appellant that the evidence along this line was undisputed. It was there said in the opinion that—
“It may be said here that, while some palpable conditions may be understood and stated by a layman, the questions whether there was a fracture of the bone, or whether the articular surfaces of the joint were normal, . . . and whether, in the condition of the finger, appellant had given the patient skillful and proper treatment, should not be determined on the testimony of unskilled witnesses.” (p. 148.)
That was an action for damages for malpractice, and in the first paragraph of the syllabus it was said:
“In an action against a physician and surgeon to recover damages for malpractice for failing to properly reduce a dislocation and treat an injured hand nonexpert witnesses can testify as to external appearances and manifest conditions observable by anyone, but whether a surgical operation has been performed with a reasonable degree of skill, knowledge and care, and whether the patient was thereafter skillfully and properly treated, are questions of science to be established by the testimony of witnesses of special skill and experience and not by testimony of those who are without special learning and skill as to such operations and practice.”
In another case of like character it was held:
“Ordinarily only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or an operation performed with a reasonable degree of skill and care, but testimony as to many matters connected with the treatment of a patient, such as the statements and acts of the physician or surgeon as well as the external appearances and manifest conditions which are observable by anyone, may be given by nonexpert witnesses.” (Yard v. Gibbons, 95 Kan. 802, syl. ¶ 3, 149 Pac. 422.)
The court in its instructions defined neurasthenia and psychoneurosis as a nervous debility. Webster defines the former as “a condition of nervous debility,” “nervous prostration,” and the latter as “any mental neurosis,” and neurosis as “a functional nervous affection or disease.” Is this condition such — as was said in the decisions above quoted — as can only be detected and observed by experts, or is it one of those “external appearances and manifest conditions which are observable by anyone?” Is nervous debility something the party himself would know he had, if he had it, and could it be recognized and observed by his parents and intimate neighbors? We are not convinced that the fact of its presence or absence is something known only to the expert, and if not, then the evidence of this particular physician to the effect that the plaintiff had this nervous condition in May is not undisputed.
The first assignment of error presented in the brief of appellant is the overruling of the objections to improper hypothetical questions. It is urged that the questions were improper because they failed to contain substantial facts shown by the evidence, and the case of Kelsey v. Armour & Co., 119 Kan. 837, 241 Pac. 453, with others is cited in support of the proposition. There the evidence showed an X-ray plate had been made one month after the injury which conclusively showed bone growths in the knee joint; this evidence, shown by the plates not being rebutted, the court held should have been included in the hypothetical question. The part omitted was uncontroverted and admitted to be a fact, and that makes the distinction. No one hypothetical question can contain both sides of a controverted matter. The questions here did contain the statement of the plaintiff himself and other witnesses as to his good health — assume that prior to May 16 “he was a healthy, normal, vigorous individual.”
The criticism of the hypothetical question propounded to Doctor Conwell has merit. He was the first witness called by the plaintiff and admittedly called out of order, and the question asked him was based upon the history of the case given by plaintiff and upon his own examination by X-ray and otherwise. If he had been the only professional witness giving an opinion, and the facts upon which the question to him was based had not been in substance introduced later, the admission of his opinion might have been serious error. This situation, however, does not apply to any of the other physicians called by the plaintiff.
Objection is made to the hypothetical questions because they di<¿ pot contain more details as to the second and third operations and did not contain a statement that the body did not show any marks or burns after the lightning stroke. The fact of the second and third operations was stated, and in most instances what was found and accomplished, but the questions did not contain reasons or theory assigned as no witness seemed to attribute to them any producing cause. They were regarded as sequels to the operation for appendicitis. The physician performing them said they are not responsible for his condition. He was supported in this view by Doctor Hartman. So the details of the second and third operations, we think, were not essential to a proper hypothetical question. As to the negative situation of there being no marks or objective injuries, the giving of other features and omitting such would impliedly indicate the absence of such.
We think there was no error in overruling the objection to the hypothetical questions asked the several physicians. The one asked Doctor Conwell is subject to criticism, but under all the circumstances we think it was not prejudicial.
The error assigned as to the overruling of the demurrer of the defendant to plaintiff’s evidence, failing to give a peremptory instruction for a verdict for defendant, and refusal to set aside the answers to some of the special questions are all based upon the appellant’s theory that the evidence of the physician performing the operation as to the condition of the plaintiff before the lightning stroke was undisputed, and since we have held otherwise, and since there was at least some evidence to the contrary, these matters are all disposed of under the rule that some evidence is all that is required to support such rulings and findings upon appeal.
Objection is made to the answers to special questions Nos. 8 and 10, to the effect that the second and third operations were exploratory. The evidence of the physician making both of them was that the third was exploratory, and the plaintiff stated in his evidence with reference to the second that his physician told him before the operation “that they would have to operate again to find out what was wrong.” If the jury credited this testimony, it would be sufficient to sustain these answers.
Appellant insists that the demurrer to plaintiff’s evidence should have been sustained, and the plaintiff should not be permitted to recover in this action because there were no bodily injuries shown. The policy insures against bodily injuries, and it is argued that neurasthenia or nervous debility is not a bodily injury. Several cases are cited from this and other states determining the right of parties where there were no objective injuries of the body, but all of them are damage suits except one and it was an action for workmen’s compensation and consequently we get very little help as to the situation here involved. The apparent sole protection afforded by this policy is against “bodily injuries,” and under the provision for double liability it specifically names “by being struck by lightning.” Our attention is not called to any provision in the policy which would limit the liability to external or visible injuries. Many accident policies do so provide and, of course, would be protected under such clause.
“A very usual provision in accident insurance policies is that the insurer shall not be liable unless there is some external and visible sign or mark of the injuiy, or the injury shall leave a visible mark on the body, or some other language of similar import, in which case no recovery can be had where the requirement is not met.” (1 C. J. 433.)
Without any provision requiring such injuries to be objective and with the specific inclusion of stroke by lightning, we are inclined to think that the requirement of the injury to be objective would be reading into the contract more than could reasonably be implied.
It was recently held in the case of Moore v. Fidelity & Casualty Co., 203 Cal. 465, 265 Pac. 207, that blood poisoning was a bodily injury within the meaning of these terms in an accident policy.
We have carefully considered the instructions refused and those given, and, as usual, we find the court did not include in the ones given all and every feature contained in those requested, and, as usual, some omissions and changes are apparently proper, while others, if added as requested, might have been proper; but without specifying each of the many details enumerated concerning them in appellant’s brief, we conclude that no substantial right of the defendant was omitted or misdirected and there was no reversible or prejudicial error in the giving and the refusal of instructions.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Háns Kretchmar brought this action against the city of Atchison, and three persons, Albert H. Lehman, F. W. Mangelsdorf and A. E. Mize, city commissioners, and also Bert C. Wells, city manager, to recover damages in the sum of $25,000 for the loss of an eye resulting from the explosion of firecrackers thrown by a group of unknown persons which, it is alleged, constituted a mob.
A demurrer to plaintiff’s petition was overruled and afterwards, when his evidence was presented, a demurrer was filed by each of the defendants on the ground that plaintiff had Jailed to establish a cause of action against any of the defendants. This demurrer was overruled as to the city and sustained as to the other defendants. The city again demurred and raised the question that under the evidence it was not liable upon any theory other than its alleged liability under the mob act, and this demurrer was sustained, the court holding that the plaintiff was not entitled to recover on any ground other than its liability under the mob act. Evidence was proffered as to the liability of the city under the mob act and the jury failed to arrive at a verdict, whereupon it was discharged and the case continued to the next term of court.
The city appeals from adverse rulings on the motion for judgment on the pleadings; on its demurrer to plaintiff’s evidence, as well as on rulings admitting evidence produced by- plaintiff; and the plaintiff has filed a cross appeal and assigned error on the rulings sustaining the demurrer as to the individual defendants, also on the ruling that under the issues the city was only liable under the mob act, and he also complains as to rulings in the admission of evidence and of instructions given and refused.
The questions suggested by the city are that the pleadings and opening statement of counsel did not present facts sufficient to constitute the members of the firecracker group a mob within the meaning of the mob act. It also makes the claim that the plaintiff’s evidence did not establish sufficient facts to constitute members of the group of persons a mob, nor establish a cause of action in favor of plaintiff against the city within the mob statute.
On the part of the plaintiff the contention is there was error in holding that the city was only liable under the mob act and also in holding that the mayor and other officers were not personally liable for their failure to preserve the peace and disperse the firecracker group and enforce the city ordinance prohibiting the shooting of firecrackers. He assigns error on the refusal to permit evidence of the police officials tending to show that the city and its officers did nothing to enforce city ordinances and keep the streets in a safe condition for travel.
Taking up the question discussed by counsel and which was raised by the defendant’s demurrer to plaintiff’s evidence on the issues presented by the pleadings, and the opening statement of counsel, it may be said that the city is not liable for acts done in its governmental capacity as distinguished from its private and proprietary capacity. A city being a political entity, a mere' agency of the state, there is no common law liability in cases of this character in the absence of a statute imposing the liability, and it is universally held that it cannot be made liable for failure to perform such duties by which persons using the street may be injured. Of course, it is the duty of the officers to police the city and enforce its ordinances, preserve order and peace on the streets, but the municipality is exempt from liability for an injury resulting from its failure to perform such public and governmental duties or for the improper or negligent exercise of its powers and duties in that respect. The enforcement of an ordinance designed to prevent disorderly assemblages in the streets like that complained of here is certainly governmental in character, and without a statutory provision to the contrary there is no civil liability of the city for the negligent performance of this duty by its officers. That rule has been frequently decided in this court and is generally the governing rule in the courts of other states. Among the many decisions of our own relating to the rule the following may be cited: Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 18 Pac. 506; La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272; Edson v. Olathe, 81 Kan. 328, 105 Pac. 521; Everly v. City of Gas, 95 Kan. 305, 147 Pac. 1134; Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12; Frost v. City of Topeka, 103 Kan. 197, 173 Pac. 293; Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348.
The plaintiff calls attention to the decision of Malchow v. City of Leoti, 95 Kan. 787, 149 Pac. 687, where a city was held liable for the blocking of a street with a merry-go-round and its equipment consisting of an engine, water tank, piles of coal, swings, guy ropes and trash of various kinds, which obstructed traffic by vehicles in the street and made it difficult and dangerous for pedestrians to get through the labyrinth without injury. That case is based on the corporate and ministerial duty of a city to maintain its streets in a condition of safety for public travel and making it liable for struc tural defects, excavations and other defects which render the street dangerous for travel and is unlike a case where persons passing along the street may be annoyed or injured by others using.the street. The rule in the Malchow case is held to be an exception and the ministerial duty imposed directly on the city makes it responsible for negligence in discharging that duty, but it has been held that the liability' — -
“Does not extend to improper and unreasonable uses of the highway contrary to governmental ordinances enacted for the convenience and safety of the traveling public, and the city is not liable for breaches of such ordinances although committed with the knowledge or even the ^participation of its officers.” (Everly v. City of Gas, supra, p. 307.)
With reference to that case it was said in Rose v. City of Gypsum, supra, that—
“The Malchow-Leoti case does not turn upon the question of a city’s liability for misuse of the street, nor does that case qualify anything that this court has so often said touching a city’s nonliability for the acts or delicts of its officials in relation to governmental duties.” (p. 421.)
It follows that the duty of a city to enforce the ordinances prohibiting persons or groups of persons from shooting firecrackers on the streets on the Fourth of July or at any other time must be held to be governmental, and under the authorities cited and the rule universally recognized by the courts the city is immune from liability for the negligence of its officers in failing to enforce such an ordinance unless there be a statute imposing such liability. The court ruled correctly so far as it applied that rule when it sustained the demurrer on every ground except its liability under the mob act.
We still have the question: Does the mob statute making a city liable for the action of a mob apply to the firecracker group of men and boys who in their celebrating frolic the evening before the Fourth of July caused the injury to plaintiff? There is no material dispute as to the happening of the accident. The evidence is that as the plaintiff was walking down on one side of Commercial street a group of persons were shooting firecrackers and other explosives on the opposite side of the street and a firecracker thrown across the street happened to explode near the plaintiff’s face and injured one of his eyes. While he still has a perception of light in his eye he cannot see to read or even see his hand held in front of him, and the evidence is that the eye is so impaired that it is of no practical use to him. It was shown that on the evening of his injury, other groups and persons were shooting firecrackers on the same and other streets of the city without interference by the police. Did the group of five or more persons that were shooting firecrackers constitute a mob within the meaning of the mob act? It reads:
"All incorporated cities and towns shall be hable for all damages that may accrue in consequence of the action of mobs within their corporate limits, Whether such damage shall be the destruction of property or injury to life or limb: Provided, however, That the number of persons that shall constitute a mob under this act shall be five or more.” (R. S. 12-201.)
It may be-noted that there is no proof that the five or more unidentified persons shooting firecrackers had assembléd for the purpose of injuring plaintiff, or any other person, or with the intent of destroying property. Their acts in shooting firecrackers were, of course, a violation- of the ordinance, but there was nothing to show it to be a riotous group intent on doing some violent act or of injuring anyone traveling on that street. They were engaged each for himself in the old-fashioned method of celebrating the natal day, a practice which was contrary to an ordinance of the city, which seems to have been a dead letter, or at least it was not enforced by the officers of the city. Instead of being a tumultuous and riotous assemblage, bent on committing violence and wrong as against persons or property, it was rather a good-natured frolic of the young men acting individually without purpose to inflict injury to life or limb or cause the loss of property. Nor does it appear there was any concerted action in the throwing of the firecracker, as each man shot his own firecrackers, which caused the injury to plaintiff. Nor' was it designed to annoy or hurt the plaintiff as the distance it was thrown, which was clear across the street, ivas so great as to indicate an absence of purpose to injure him. There was at least no mass purpose to do violence to anyone by the haphazard throw. We think the firecracker group cannot be regarded as coming within the meaning of the mob act. A number of cases have been decided in which a mob has been defined, and the controlling principles applied. In Cherryvale v. Hawman, 80 Kan. 170, 101 Pac. 994, relied on by plaintiff as sustaining his view that the group constituted a mob, a mob was defined as “an unorganized assemblage of many persons intent on unlawful violence either to persons or property.” There the act was held applicable to a charivari, where a bride and groom were taken against their will by-force and placed on a wagon and drawn up and down the streets making proclamation of their nuptials, introducing them to people in burlesque speeches, drawing large crowds and causing disorder and some tumult. There was a common intent to do violence to the bride and groom, and mass action; therefore that case cannot be considered as authority in the present case. Another case relied on by plaintiff is Blakeman v. City of Wichita, 93 Kan. 444, 144 Pac. 816. There a prisoner was placed in a city jail with a large number of other prisoners. The latter, about thirty in number, organized what is called a kangaroo court and proceeded to try the plaintiff for breaking into their home. They found him guilty of the charge. He was then severely whipped with a strap furnished by one of the police officers. The injuries inflicted rendered him unfit for labor for a period of six months thereafter. The attacking parties joined together to do violence to the injured man. There was a common purpose and joint action in inflicting the injuries that were suffered and the attacking parties were rightly held to be a mob, but the rule there applied does not fit the facts of the instant case, nor does it furnish authority for holding the firecracker group to be a mob. Among other cases relating to the mob act and touching its application are the following: Harvey v. City of Bonner Springs, 102 Kan. 9, 169 Pac. 563; Sanger v. Kansas City, 111 Kan. 262, 206 Pac. 891; Hendren v. Arkansas City, 122 Kan. 361, 252 Pac. 218; Koska v. Kansas City, 123 Kan. 362, 255 Pac. 57; Seigler v. Kansas City, 131 Kan. 504, 292 Pac. 937. The ruling in the cited cases does not warrant a holding that the group performing in Atchison, where plaintiff suffered his injury, constitutes a mob within the meaning of the statute on the subject. In Aron v. Wausau, 98 Wis. 592, a somewhat similar question arose under the mob act of that state. There the plaintiff was injured by the explosion of a firecracker on a city street in violation of an ordinance by a group of persons who were exploding firecrackers on the Fourth of July, without a common purpose to injure anyone, and it was held that he could not recover damages from the city under the mob and riot act, which provided that three or more persons shall be guilty of a riot if they assemble in a violent and tumultuous manner to do any unlawful act or being together attempt to act in a violent, unlawful and tumultuous manner. In the opinion it was said:
“There is nothing in the complaint to indicate that the crowd in the street, or on the sidewalk, or any three or more persons in the crowd, had any common intent or purpose to injure the plaintiff or any other person by the explosion of the cannon cracker in question. It was thrown and exploded by some one unknown to the plaintiff. Others were throwing and exploding firecrackers, but each person was, apparently, the sole manipulator of his own firecracker, and there was no common intent or purpose, of any three or more persons, to explode any particular firecracker, much less to injure the plaintiff or any other person by such explosion. It is equally apparent that it was not a mob.” (p. 597.)
The conclusion is that the demurrer to plaintiff’s evidence should have been sustained and judgment rendered for the city.
There is a further complaint by the plaintiff of the action of the court in sustaining the demurrer to the allegations of his petition as to the personal liability of the mayor, city commissioners and city manager. These officers are vested with legislative and executive functions involving the exercise of judgment and discretion and cannot be held liable for failure to enforce a governmental ordinance of the city; at least they were not liable in the absence of malice or corruption. The plaintiff did allege conclusions as to malice, but facts showing malice were not pleaded. The demurrer admitted issuable facts, but did not admit the naked conclusions of the pleader. There was no error in sustaining the demurrer to plaintiff’s petition as against these officers.
In view of the conclusions reached, it is not necessary to consider some objections made to rulings on the admission of evidence.
The ruling on the city’s demurrer to plaintiff’s evidence is reversed and the cause is remanded with the direction to sustain the demurrer and render judgment for the city.
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The opinion of the court was delivered by
Davis, J.:
Isaac John South, a minor, was injured during a physical altercation with defendants Joshua Mills and James McCarter in the mobile home park where both Isaac and Joshua lived with their parents. Isaac’s parents brought suit on behalf of their son against Joshua and James, their parents, American Family Mutual Insurance Company, and the owner/manager of the mobile home park, defendant-appellee S and J Investments of Topeka, Inc., (S and J). Relevant to this appeal, the district court granted summary judgment in favor of S and J, finding it was not negligent as a matter of law and was not the legal cause of Isaac’s injuries. The Court of Appeals granted the plaintiffs’ application to take a civil interlocutory appeal, and the case was transferred to this court pursuant to K.S.A. 20-3017.
On September 3, 2001, plaintiffs Linda and John South entered into a “Rental Agreement for Manufactured Home Site” (rental agreement) with the owners of Green Acres Mobile Home Park (Green Acres), defendant S and J. Although the rental agreement was signed only by John and Linda, their minor son, Isaac South, was listed on the agreement as a resident of the home in Green Acres. In the agreement, Linda and John agreed to abide by all of the Green Acres Community Guidelines (community guidelines).
Section 5, Installation of New & Existing Mobile Homes, provides in relevant part: “The management reserves the right to (1) refuse admittance and accommodations to anyone without stating any cause or reason, (2) decline to allow any space to be occupied, or (3) refuse to accept further rent.”
Section 8, “Liability of Management,” provides in part:
“(a) It is understood and agreed by the residents that all common areas furnished by Green Acres Community such as automobile parking spaces, streets and recreational facilities shall be deemed gratuitously furnished and that if the Resident or any other person used the same, it shall be at the user’s [sic] own risk. All persons using any facilities do [sic] so at their own risk.”
Section 14, entitled “Noise,” provides:
“(a) Avoid excessive noise. Play radios, televisions and stereos softly. Have respect for your neighbors. Residents must be responsible for the conduct of their guest. The property is privately owned and the right to evict any objectionable person or persons who may cause a disturbance or become a nuisance is reserved. The management shall be the sole judge of the existence or cause of such action.”
On May 11, 2002, plaintiffs and defendants Joshua Mills and his parents Michael Mills and Loretta Tindell lived in the Green Acres Mobile Home Park owned by defendant S and J. That evening, Isaac drove past the Mills home on his way home from work. Joshua and James testified that Isaac was staring at them as he drove by. Joshua testified that he asked Isaac why he was staring at him, and they had a conversation where Isaac threatened them. Isaac testified that they starting cussing at him as he was driving by. Isaac drove home, changed his clothes, and walked back to the Mills’ residence to see what their problem was.
Joshua and James were standing in the Mills’ yard when Isaac arrived. The three minors offered conflicting accounts of what happened next. Isaac testified that Joshua was holding a BB gun and told him to leave. They exchanged words and Joshua took a swing at Isaac, James punched Isaac in the face, knocking out his tooth, and Isaac fell to the ground where James and Joshua kicked him. Isaac retreated to the road but returned near the Mills’ vehicle to retrieve his hat. When he was leaning over to pick up his hat, James punched him in the mouth and broke his jaw.
Joshua and James characterized Isaac as the aggressor who swung at Joshua first. Joshua’s father Michael Mills heard cussing and came outside and twice told Isaac to go home, but he refused. Loretta Tindell also came outside. When Isaac came back into the yard to retrieve his hat, James saw a knife, so he punched Isaac in self-defense. Michael Mills also testified that he saw a knife in Isaac’s hand and he found a knife in the yard the next morning. After James punched Isaac, Isaac walked home.
Isaac’s father, John South, testified that when Isaac arrived home he looked as if he had been beaten because his jaw was hanging down and he was bleeding. Isaac said he had been “jumped,” and his father took him to the emergency room. Isaac had emergency surgery to wire his jaw back together, and then he had subsequent surgeries that required two bone grafts from his bottom jaw. His medical expenses were approximately $30,000 at this point, and he will require further medical treatment.
Nearly 2 years before this incident occurred, Jack Benge, a shareholder of S and J, received a complaint from a Green Acres tenant’s babysitter that two boys were cussing in the mobile home park and asked if something could be done. The tenant explained that she thought one of the boys lived up the street. Benge spoke with John Carey, an officer of S and J and owner and operator of Modem Mobile Home Sales, a neighboring mobile home park. Carey identified one of the boys as a resident of Modem Mobile Home Sales who was being evicted, and he identified the other possibly as James McCarter.
At Benge’s direction, his attorney Jerold Berger sent James a letter dated July 18, 2000, which provided in relevant part:
“It has been brought to my attention that you have been coming on the property even though the owners and operators have requested that you stay off the property.
“Please consider this a formal request to stay off of the property known as Green Acres Mobile Home Community. Should you continue to violate this request you will be guilty of a criminal trespass. It is our intentions to fully follow through with prosecuting you if you continue to trespass on this property.”
In his deposition, Benge denied knowing where the information for the substance of this letter was obtained, nor did he know of anyone who had spoken with James. James’ father, Mark McCarter, signed a sworn declaration that he reviewed this letter after his son received it in the mail. Mark spoke with the park manager about the letter, and the park manager said the letter resulted from information she had that James might have been involved in a fight on the premises. Mark told the manager that James was not involved in a fight and that James had an aunt who lived on the premises. The manager agreed to allow James back on the premises because she did not have any evidence that James was involved in a fight and because his aunt lived on the premises.
Nancy Ketter, the operations manager at the time, denied having this conversation with Mark McCarter. Ketter had no knowledge of James being seen on the Green Acres property until the day of the subject fight, and she testified that no additional letters or further action had been taken against James. Ketter received no reports that James was on the property after the July 18, 2000, letter was sent, and she did not inform the other tenants that he had been advised to stay off of the premises.
The plaintiffs filed an action against James and his parents Mark and Jill McCarter, Joshua and his parents Michael Mills and Loretta Tindell, and American Family Mutual Insurance. The district court allowed the plaintiffs to amend the petition to add S and J as a defendant. Relevant to this appeal, the plaintiffs alleged in the amended petition:
“37. That notwithstanding the judgment of defendant S AND J INVEST-. MENTS INC. OF TOPEKA that defendant McCarter was an ‘objectionable person or persons who may cause a disturbance or become a nuisance/ the former [allowed] the latter to continue to come on the premises to associate with defendant Tindell and her son, the minor defendant Joshua Allen Mills.
“38. That neither at the time plaintiffs entered into the said landlord-tenant agreement, nor at anytime thereafter, were they aware of the aforesaid judgment having been made by defendant S and J Investments of Topeka, Inc., or that it was suffering the minor defendant McCarter to continue to come on the premises to associate with Loretta Kay TindeE and her son, the minor defendant Joshua Allen MiEs, or that these residents constituted a danger to the safety and welfare of other tenants of the mobEe home park.
“39. That defendant S AND J INVESTMENTS INC. OF TOPEKA knew or should have known that Loretta Kay TindeE and minor defendant Joshua AEen MiEs were aEowing the minor defendant James Aubrey McCarter to come onto the premises and that the two minor defendants presented a danger to the safety and welfare of the residents, including the plaintiffs.
“40. That by the common law of this state, the owner of a business has a duty to provide security for patrons or customers on the premises when circumstances exist from which the owner could reasonably foresee a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.
“41. That defendant S AND J INVESTMENTS INC. OF TOPEKA breached its duty to plaintiffs by fafling and refusing to take further action to prevent the minor defendant James Johnson Aubrey McCarter from coming on the premises; and that said breach is the proximate cause of the injuries and losses suffered by tire plaintiff, as is more fuEy set out above.
“42. That defendant S AND J INVESTMENTS INC. OF TOPEKA breached its duty to plaintiffs by failing and refusing to evict Loretta Kay TindeE and her son, the minor defendant, Joshua Alien MiEs from the premises; and that said breach is the proximate cause of the injuries and losses suffered by the plaintiff, as is more fuEy set out above.”
On September 25, 2003, the district court granted Loretta Tin-dell’s motion for summary judgment and stayed the proceedings against Michael Mills because he had filed for bankruptcy. The court reasoned that the plaintiffs failed to show that Joshua acted willfully or maliciously or that he intended to cause injury to Isaac necessary for a claim under K.S.A. 38-120 (recovery from parents for malicious or willful acts by certain children), tbat Loretta exercised reasonable care by taking steps to end the fight, and that she was, thus, not liable for a failure to intervene. The court found that had Michael not filed for bankruptcy, his motion for summary judgment would have also been granted.
On January 8, 2004, the district court granted summary judgment to Joshua because he did not cause Isaac’s injuries. As to defendants Mark and Jill McCarter, the court found that a genuine issue existed as to whether their son James had acted willfully or intended to cause injuries to Isaac. However, because the plaintiffs did not present evidence that the injuries were the result of parental neglect on the part of the McCarters, the court granted them partial summary judgment by limiting their liability to $5,000 under K.S.A. 38-120.
S and J filed a motion for summary judgment arguing that it was not liable for Isaac’s injuries because it could not have reasonably foreseen that Isaac would go to the Mills’ residence and fight with Joshua and James, nor could it have provided reasonable security to prevent it from happening. As reasonable persons could only arrive at one conclusion, that the fight was not foreseeable, it argued that summary judgment should be granted as a matter of law.
The plaintiffs’ response to the summary judgment motion raised several arguments: (1) The attack occurred in a common area reserved for control by S and J; (2) S and J was aware of James’ propensities and failed to warn the plaintiffs; (3) this case was distinguishable from Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991); and Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993), where no landlord-tenant relationship existed and the case was more analogous to the university/student relationship in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993); (4) S and J was ignoring its prior knowledge and efforts (by letter) to keep James out of Green Acres and credibility issues arose regarding the contents of the letter; (5) conflicting evidence was presented regarding the material fact of whether S and J had allowed James back on the premises after the letter was sent; (6) a special relationship was created through the rental agreement which provided S and J with the sole right to prevent James from coming on the premises, which was similar to the student-university relationship in Nero; (7) S and J undertook a duty for a third party, Isaac, under Restatement (Second) of Torts § 324A (1964); and (8) a special relationship existed under Restatement (Second) of Torts § 314A (1964) and Fortney v. Hotel Rancroft, Inc., 5 Ill, App. 2d 327, 125 N.E.2d 544 (1955), because the rental agreement required S and J to exercise vigilance for the security of the plaintiffs; a question of fact exists on whether S and J was negligent in carrying out its responsibilities once having assumed the duty to keep troublemakers off the premises under Restatement (Second) of Torts § 323 (1964), Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 657 P.2d 532 (1983), and Cunningham v. Braum’s Ice Cream & Dairy Stores, 276 Kan. 883, 80 P.3d 35 (2003).
S and J responded, arguing the letter written 2 years prior to the incident did not constitute foreseeability, S and J had no prior knowledge that Isaac would confront Josh and James and engage in a fight, the plaintiffs misinterpreted Section 14 of the rental agreement which applies to noise caused by tenants, S and J did not breach its contract because the agreement reserves the right to “evict” any person and not “eject” any objectionable person as argued by the plaintiffs, and the fight was not foreseeable under the totality of the circumstances.
On August 13, 2004, the district court granted S and J’s motion for summary judgment, reasoning:
“As a matter of law, Defendant S and J Investments was not negligent. First, Defendant did not have a duty to evict the Tindell family under the facts when viewed in light most favorably for Plaintiff. Second, neither Joshua Tindell, Loretta Tindell, nor S and J Investments were the legal cause of Plaintiff s injuries. See September 25, 2003 Memorandum Decision and Order and January 8, 2004 Memorandum Decision and Order. Finally, because Plaintiff s evidence is susceptible to only one legal inference, the question of proximate cause is a question of law. Cullip by & Through Pitts v. Domann by & Through Domann, 266 Kan. 550, 556 (1999). Accordingly, the Court finds no liability on Defendant S and J Investments.”
The plaintiffs filed a motion for additional findings and for amendment of the judgment in favor of S and J to allow application to the Court of Appeals for an interlocutory appeal and for a stay. The plaintiffs argued that the trial court had misconstrued their claim by resting its ruling on the conclusion that the plaintiffs’ claim against S and J was based solely upon its failure to evict the Tindell (Mills) family. The plaintiffs pointed to their claims in the second amended petition that S and J breached its duty to the plaintiffs by failing to take further action to prevent James from coming on the premises after he had earlier been banished from the mobile home park. The plaintiffs reiterated their arguments under Restatement (Second) of Torts § 323 and § 324A.
S and J responded that the motion included additional arguments not raised in the plaintiffs’ response to its motion for summary judgment. The trial court agreed, ruling that a surreply was not allowed under Shawnee County Rule 3.202(b). However, it granted the motion for interlocutory appeal and stay under K.S.A. 60-2102, reasoning:
“This Court has made a finding that, as a matter of law, S & J Investments was not negligent. This Court feels this finding creates a substantial ground for difference of opinion. While this Court feels there was no duty to plaintiff by S & J, it is conceivable that an Appellate Court may view this controlling question of law differently. The law generally does not support summary proceedings against a party seeking such redress. Failure to stay these proceedings could lead to trial which is not economically wise for the parties.”
The plaintiffs filed an interlocutory appeal with the Court of Appeals. This court granted the plaintiffs’ subsequent motion to transfer the case to the Supreme Court pursuant to K.S.A. 20-3017.
On appeal, the plaintiffs argued the trial court failed to carefully analyze and apply the Restatements and Kansas case law in granting summaiy judgment to S and J. They contend that S and J owed them a duty and was negligent in rendering the service it recognized as necessary for the protection of the South family under the landlord-tenant rental agreement and the “Community Guidelines” under both Restatement (Second) of Torts § 323 (1964) and Restatement (Second) of Torts § 324A (1964). Additionally, the plaintiffs contend that S and J is hable under various provisions of the Restatement addressing premises liability, including Restate ment (Second) of Torts § 341A (1964), Restatement (Second) of Torts § 314A, and Restatement (Second) of Torts § 344.
“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 summary judgment, the facts subject to tire dispute must be material to the conclusive issues in the case. On appeal, we apply die same rules and where we find reasonable minds could differ as to die conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
“ ‘In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove die existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.’ ” Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied 525 U.S. 964 (1998) (quoting Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 [1992]).
In Kansas, a plaintiff in a negligence action must first prove the existence of a duty owed to him or her by tire defendant. The existence of a duty is a question of law over which this court’s review is unlimited. Roe v. Kansas Dept. of SRS, 278 Kan. 584, 592, 102 P.3d 396 (2004).
Premises Liability
The plaintiffs argue that S and J is hable under various provisions of die Restatement addressing premises liability. They cite several cases discussing these Restatement principles which they argue are analogous to this case. S and J argues it is not hable under a premises liability theory and urges this court to disregard many of these arguments because drey are being raised for dre first time on appeal.
Examination of the pleadings below, specifically the plaintiffs’ response to the motion for summary judgment, reveals that the plaintiffs did make some premises liability arguments below concerning special relationships formed under § 314A and that the relationship here was similar to the university/student relationship in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993), which discussed the applicability of § 344. Although the arguments on appeal expand upon those arguments raised below, we reject S and J’s contention that the plaintiffs’ arguments are raised for the first time on appeal. Moreover, the trial court did not address all the questions regarding the existence of a duty but concluded that no duty arose under the rental agreement to evict the Tindell (Mills) family, whom James was visiting at the time of the incident giving rise to this lawsuit.
The prevailing rule in Kansas is that in the absence of a “special relationship” there is no duty on a person to control the conduct of a third person to prevent harm to others. D.W. v. Bliss, 279 Kan. 726, Syl. § 3, 112 P.3d 232 (2005). “ ‘A special relationship may exist between parent and child, master and servant, the possessor of land and licensees.’ ” Gragg v. Wichita State Univ., 261 Kan. 1037, 1045, 934 P.2d 121 (1997) (quoting C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 [1993]). Restatement (Second) of Torts § 314A (1964) sets forth the basis for the existence of a special relationship in cases involving a possessor of land:
“Special Relations Giving Rise to Duty to Aid or Protect
“(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
“(2) An innkeeper is under a similar duty to his guests.
“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.”
The reporter’s notes to § 314A contain statements of the drafters as to the provisions in issue. Comment e explains:
“The duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not hable where he neither knows nor should know of the unreasonable risk. ... He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate.”
Citing § 314A, the plaintiffs point to Fortney v. Hotel Rancroft, Inc., 5 Ill. App. 2d 327, 125 N.E.2d 544, reh. denied (1955), where the Illinois Appellate Court found that an innkeeper owes his or her guest a very high degree of care and must protect his or her guest while at the inn against injuries from third persons. Fortney provides little support for the plaintiffs’ position, however, as the duty owed by an innkeeper to a guest in Illinois (“very high degree of care”) is different from the reasonable care standard owed by a landlord to a tenant in Kansas, as discussed below.
In this case, the plaintiffs hinge a good portion of their argument on the fact that a special relationship and therefore a duty existed by reason of the rental agreement requiring S and J to exercise vigilance for the security of the South family. They emphasize the agreement’s reservation of the exclusive right to determine who was an objectionable person and to eject any such person from Green Acres with or without cause. The plaintiffs cite several cases in support of their argument; however, review of the rental agreement and community guidelines do not support a finding that a contractual duty to provide security existed in this case.
The plaintiffs cite Bundy v. Sky Meadows Trailer Park, 1989 WL 125379 (Ohio App., unpublished opinion filed October 23, 1989), where the plaintiff was bitten by a dog owned by another resident of a trailer park owned and operated by Sky Meadows. The plaintiff sued Sky Meadows and the dog’s owners for negligence resulting in the dog bite. Facts were established to indicate that Sky Meadows had actual knowledge that the dog ran freely around the trailer park and had bitten other children in the past. Furthermore, Sky Meadows had a rule stating that “animals must not run at large,” which was never enforced against the owners of this particular dog, despite its past attacks on children. 1989 WL at *1-2.
The Bundy court first distinguished a mobile home trailer park from an apartment complex because the common premises of the park and the residents’ conduct may be restricted or controlled by park rules. The court held that Sky Meadows had a duty to enforce the rules and regulations of the trailer park; hence, by contract, Sky Meadows had a duty to prevent animals from roaming the premises of the park. Further, the court stated a “special relation” existed due to the fact that Sky Meadows had knowledge of the dog’s vicious propensities and promulgated rules prohibiting ani mals from running at large. Notice and knowledge of a dog’s propensity to roam and attack children obligates the trailer park operator to take affirmative action. 1989 WL at *2-3.
In order for Bundy to have relevance to this case, the plaintiffs must establish that the defendants in this case undertook to provide security for the plaintiffs. Two Kansas cases are important in this regard. In Beshears v. U.S.D. No. 305, 261 Kan. 555, 930 P.2d 1376 (1997), Beshears was a high school student who was injured in an after-school-hours, off-school-premises, prearranged fight with another troubled disruptive student who had warned the school counselor and assistant principal 2 days before the fight about the problem between them because he was worried about getting expelled. The district court found no duty existed and granted summary judgment in favor of the school district in a negligence action.
On appeal, Beshears argued in part that the school district breached its duty to him during school hours, when a special relationship existed between them, to follow its own policy of giving in-school suspension for after-school fights even if the fight occurred off school premises, if it was based on statements made at school. The school district’s expulsion policies did not mandate suspension or expulsion but left the decision to the school’s discretion. This court found that the policy did not show that the school district undertook to protect its students from unknown prearranged off-school-premises fights and its efforts to regulate after-school fighting did not impose an absolute duty to control off-school-premises fighting. 261 Kan. at 563.
In Parker v. Dillon Co. Inc., No. 90,108, unpublished opinion filed January 30, 2004, rev. denied 277 Kan. 925 (2004), a customer brought negligence and breach of contract claims against a groceiy store and the store’s private security contractor when he was injured after interrupting an armed robbery. On appeal, the customer argued the contractor undertook to render services to the store which it should have recognized were necessary for the protection of customers; therefore, based on Restatement (Second) of Torts § 324A (1964), the store had a legal duty to protect customers from foreseeable criminal activity.
In determining whether a duty arose under a provision which explained the scope of the undertaking by the contractor s security guards, the court noted that the provision included services to protect not only Dillon’s property, but also “people.” The court acknowledged that a broad reading might lead to the conclusion that “people” included customers, but it found that the more appropriate reading was that “people” referred to employees. The court reasoned: “Courts should not strain themselves to create ambiguity in a written instrument where, in common sense, there is none.” Slip. op. at 6.
In this case, Section 14 of the Green Acres Community Guidelines, entitled Noise, provides:
“(a) Avoid excessive noise. Play radios, televisions and stereos softly. Have respect for your neighbors. Residents must be responsible for the conduct of their guest. The property is privately owned and the right to evict any objectionable person or persons who may cause a disturbance or become a nuisance is reserved. The management shall be the sole judge of the existence or cause of such action.”
S and J argues that this provision only provides S and J with the authority to “evict” a noisy tenant. S and J points to the use of the word “evict” rather than “eject.” Evict is defined as: “To expel (a person, esp. a tenant) from real property, usu. by legal process. Also termed put out.” Black’s Law Dictionary 594 (8th ed. 2004). Eject is defined as: “To cast or throw out” or “To expel or thrust out forcibly ie.g, disorderly patrons).” Black’s Law Dictionary 556 (8th ed. 2004).
While the term “evict” is usually applicable to tenants, we note that S and J uses the term “person” rather than resident after specifically referencing both residents and guests. In contrast to Parker, a common-sense reading of this provision would read “person” in a broader sense to encompass both residents and guests, and conclude that S and J was trying to reserve the right to evict any objectionable person who causes a disturbance or becomes a nuisance, not just its residents or tenants.
However, we must also read the language in the context of the provision’s aim. Rather than dealing with the security of tenants, this provision aims to curb excessive noise in the trailer park. This distinguishes the facts of this case from Bundy, where Sky Mead ows had knowledge of the dog’s vicious propensities and promulgated rules in the rental agreement prohibiting animals from running at large so that the duty was apparent. Moreover, the language does not mandate that S and J evict any objectionable person; rather, the decision is discretionary as in Beshears. We conclude that the above provision imposed no contractual duty upon S and J to provide security for its tenants.
S and J also briefly refers to the Landlord’s Duties provision which provides that except for conditions beyond the landlord’s control, the landlord shall “[mjaintain all common areas of the Manufactured Home Community in a clean and safe condition.” Section 8(a) of the community guidelines provides that common areas include automobile parking spaces, streets, and recreational facilities. The undisputed evidence in this case established that James delivered the final blow while they were standing in the Mills’ yard on a grassy area near where the Mills’ vehicle was parked. Thus, we conclude that the above guideline created no duty on the part of S and J to protect the tenants from the harm that resulted in this case.
The other provision S and J cited before the trial court provided: “The management reserves the right to (1) refuse admittance and accommodations to anyone without stating any cause or reason.” However, when taken in context, this provision referred to the installation of new and existing mobile homes in the mobile home park. We conclude that this provision did not impose a contractual duty upon S and J to monitor the security risk of guests of tenants of Green Acres.
A question remains whether a special relationship existed between S and J and Isaac arising out of their relationship as a landlord-tenant or landowner/invitee-licensee. Although Kansas law previously provided that the duty owed by a possessor of real property to an entrant upon the property was dependent upon the entrant’s status, this court has eliminated the common-law distinctions between the duties owed to licensees and invitees and set up reasonableness of action and foreseeability of injury as the foundations of premises liability. Cunningham v. Braum’s Ice Cream & Dairy Stores, 276 Kan. 883, 886, 80 P.3d 35 (2003).
“ ‘The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that are to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all circumstances are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, tire individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.’ ” 276 Kan. at 886 (quoting Jones v. Hansen, 254 Kan. 499, 509-10, 867 P.2d 303 [1994]).
Premises liability law is not limited to cases where there is a physical defect in the premises. See Walters v. St. Francis Hosp. & Med. Center, Inc., 23 Kan. App. 2d 595, 598-601, 932 P.2d 1041, rev. denied 262 Kan. 969 (1997) (ordinary and reasonable care does not require a hospital to warn an invitee about the possibility of becoming queasy or fainting from witnessing a medical procedure because this is a danger that is open, obvious, and known to the invitee). Restatement (Second) of Torts § 341A (1964) provides:
“A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to cariy on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.” (Emphasis added.)
The plaintiffs argue that a duty arises under Restatement (Second) of Torts § 344 (1964), which is entitled “Business Premises Open to Public: Acts of Third Persons or Animals.” Restatement (Second) of Torts § 344 (1964) provides:
“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”
The comments give an explanation of the section:
“f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.”
The plaintiffs cite Griffin v. West RS, Inc., 97 Wash. App. 557, 570, 984 P.2d 1070 (1999), where the Washington Court of Appeals held that the special relationship between landlord and tenant is the same as the relationship between a business and its invitee. However, the plaintiffs fad to recognize that the Washington Supreme Court reversed this case on appeal and declined to reach the duty of care issue. See Griffin v. West RS, Inc., 143 Wash. 2d 81, 88, 18 P.3d 558 (2001).
This court has applied the principles of § 344 in circumstances involving a landlord-tenant or university/student relationship in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993). In Nero, a plaintiff female college student who was sexually assaulted by another student in a coed dormitory filed a negligence suit alleging the university had a duty to protect her and had failed to exercise reasonable care to do so. The university was aware that the alleged perpetrator had been charged with rape for an incident that had occurred approximately 1 month earlier in another coed dormitory and had temporarily assigned him to reside in an all-male dormitory; however, he was subsequently permitted to move into another coed dormitory where the second alleged sexual assault took place. The trial court granted summary judgment for the university, and the plaintiff appealed arguing the university had a duty to protect the residents of university residence halls.
This court found that the university/student relationship does not in and of itself impose a duty upon universities to protect students from the actions of fellow students or third parties. Citing Restatement (Second) of Torts § 344 (1964), the court also noted the general rule that a landowner has no duty to protect an invitee on the landowner s premises from a third party’s criminal attack unless the attack is reasonably foreseeable and prior similar acts committed upon invitees furnish actual or constructive notice to a landowner. The court found that the university, as a landlord furnishing housing to its students, owed student tenants the same duty to exercise due care for their protection as a private landowner owes his or her tenants. As such, it concluded that “a university has a duty of reasonable care to protect a student against certain dangers, including criminal actions against a student by another student or a third party if the criminal act is reasonably foreseeable and within the university’s control.” Because reasonable people would disagree whether the attack was foreseeable, the district court erred in granting summary judgment when an issue remained for the trier of fact. 253 Kan. at 583-85.
Although this case likewise involves a landlord-tenant relationship, Nero is different from this case as it involved a rape in the context of a student/university relationship and the university possessed concrete information concerning previous alleged criminal conduct. Moreover, the university as landlord had taken reasonable steps to keep the alleged perpetrator away from the location of the incident (coed dorm) but then shortly thereafter allowed the perpetrator to return without warning to the residents. In this case, there is no mention in the letter from S and J’s attorney what conduct James allegedly engaged in. The evidence falls short of clearly suggesting past criminal conduct on the part of James and rather suggests rowdy conduct and cursing. Even when viewing the evidence in the light most favorable to the plaintiffs, the evidence that James had been involved in a previous fight is tenuous at best, given that in the same conversation where the suggestion of fighting occurred diere was evidence he was not fighting and thus was granted permission to come back onto S and J’s property.
Given the risk in Nero, and knowledge of that risk by the landlord, it is understandable that we concluded the landlord had a duty to exercise reasonable care to protect its tenants from a third party’s criminal attack, for such an attack was reasonably foreseeable and within the landlord’s control. Can the same be said in the case we now consider where a landlord-tenant relationship clearly exists? We think not. Before deciding the issue, however, we further examine the issue of foreseeability. S and J relies primarily upon Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997), for tire definition of foreseeability.
In Gragg, the heirs of Barbara Gragg brought a wrongful death and survival action against Wichita State University and others after she was shot and Mlled while attending a fireworks display on the campus. The heirs argued the defendants failed to provide adequate security and lighting for the event and failed to warn of the potential for crime on or near the campus under the totality of the circumstances. The district court granted summary judgment in favor of WSU and the other defendants.
In considering whether WSU owed Gragg a duty to prevent the shooting, the court discussed Nero and Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993). Of importance to this case, the court distinguished Gragg from Nero because it was not “a landlord-tenant situation where control could have been exercised over a known attacker in proximity to protect an unknowing victim." It found Seibert more instructive, where this court considered whether a shopping center was liable to a woman who was shot in the parking lot. 261 Kan. at 1054. It quoted Seibert’s holding that an owner may be hable for the criminal acts of third parties in the business’ parking lot where “ ‘circumstances exist from which the owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken,’ ” and adopted the test for determining the foreseeability requirement as “ ‘the totality of the circumstances rule.’ ” 261 Kan. at 1054 (quoting 253 Kan. 540, Syl. ¶ 4; 253 Kan. at 548.) It further quoted:
“ Tt is only where the frequency and severity of criminal conduct substantially exceed the norm or where the totality of the circumstances indicates the risk is foreseeably high that duty should be placed upon the owner of the premises to provide security. The duty to provide security is determined under the reasonable person standard.’ ” 261 Kan. at 1055 (quoting 253 Kan. at 549-50).
The Gragg court also quoted Cupples v. State, 18 Kan. App. 2d 864, 861 P.2d 1360 (1993):
“ ‘Foreseeability, for the purpose of proving negligence, is defined as a commonsense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. [Citation omitted.] An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.’ ” 261 Kan. at 1056.
Under the facts of Gragg, the only similar incident was a shooting at a festival on another part of campus 2 years earlier, the facts did not show that the high crime level of the neighborhoods surrounding WSU had posed a security problem for previous firework displays, and no one participating in the production had any knowledge that the perpetrator intended to shoot anyone on the WSU campus. As such, the Gragg court concluded that the Graggs failed to show a special duty existed on the part of WSU to protect Gragg from the unanticipated and unexpected attack and it was not foreseeable under the totality of the circumstances that the perpetrator would shoot Gragg. 261 Kan. at 1056-57.
Gragg is obviously distinguishable from this case in that it did not involve a landlord-tenant relationship and the risk of harm must have been “foreseeably high.” However, it does set forth a totality of the circumstances standard of review and illustrates a past situation where we found that a similar shooting incident which had happened 2 years earlier in Gragg was not enough to make the current shooting foreseeable.
On the other hand, the plaintiffs cite the following cases where the courts found the conduct may have been foreseeable. In Cusmano v. Lewis, 55 Pa. D. & C.4th 1 (2002), the child of a tenant in a mobile home park shot and killed the teenage son of another tenant. The victim’s parents brought suit against the child’s parents and the mobile home park owner, arguing the owner had a duty outside the obligations it undertook as a result of the lease agreement to maintain the premises to malee it safe for persons thereon. The owner filed a general demurrer to the claim of liability claiming it owed no legal duty to prevent the shooting. The court found in relevant part:
“[T]he mobile home park was essentially a landlord with regard to the mobile home community and, as such, had an obligation to protect its tenants against not only foreseeable negligent, but also intentional, acts of third persons. The plaintiffs assert that the mobile home park had received specific knowledge of the violent propensities of the minor . . . yet, despite this knowledge, it did not take steps to remove this danger from its community by any means whatsoever. Neither did they attempt to warn or protect the tenants. The mobile home park chose to merely ignore the problem.” (Emphasis added.) 55 Pa. D. & C.4th at 6.
In denying the demurrer, the court found that the plaintiffs’ allegations of the mobile home park’s owner’s knowledge of the dangerous propensities of the minor and the defendant’s failure to act created a question of fact. 55 Pa. D.&C.4th at 6. The conduct in this case and the one we now consider are worlds apart. The questions that must be asked in this case are what knowledge did S and J have and what kind of risk was involved?
The plaintiffs cite O’Hara v. Western Seven Trees Corp., 75 Cal. App. 3d 798, 142 Cal. Rptr. 487 (1977), for the proposition that the liability of a landlord applies where the landlord had prior knowledge of the criminal propensities of a third party. In that case, the appellate court overturned a judgment of dismissal in a case where a female tenant who was raped in her apartment claimed that the owners of the apartment complex were negligent in failing to provide adequate security, in misrepresenting the security measures in effect on the premises, in concealing information concerning a man who had raped several female tenants, and in failing to warn her of the danger of rape. In finding potential liability existed, the court reasoned that the plaintiff was not the victim of a sudden unexpected outburst but, rather, fell prey to the same type of criminal conduct that had happened to the other tenants, of which the owners were aware of but failed to provide adequate security or warn the plaintiff. 75 Cal. App. 3d at 801-03. However, the plaintiffs’ reliance upon O’Hara does not help their case as it is clearly distinguishable wherein the court concluded that the landlord not only failed to warn the plaintiff of the danger of rape, but also concealed information of the rape of several female tenants so that she might agree to become a tenant.
Finally, our analysis in Beshears bears repeating. As discussed above, this court found it was not reasonably foreseeable to school officials that Beshears would voluntarily arrange to fight with another student after track practice at an isolated site away from school, even though the troubled and disruptive student had warned the school counselor and assistant principal 2 days before the fight about the problem between them. 261 Kan. at 564.
Viewing the evidence in the light most favorable to the plaintiff, we conclude under the totality of circumstances that the harm to Isaac was not foreseeable as a matter of law. See Nero, 253 Kan. at 583 (whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact — it is only when reasonable persons could arrive at only one conclusion that the court may determine the question as a matter of law). We arrive at this conclusion noting the lack of specific information as to James’ past conduct and the actual risk involved. Moreover, at the time of this incident, 2 years had elapsed from the date of the letter to the date of the incident giving rise to this lawsuit with no evidence that James had been involved in any other incidents on S and J property. S and J had no knowledge that any current problems existed between Isaac and James or that a fight might be taking place. Under the totality of the circumstances, the trial court did not err in finding that S and J did not owe a duty to the plaintiffs under a premises liability theory as the harm to Isaac was not foreseeable.
Restatement (Second) of Torts § 323 (1964)
The plaintiffs argue that a duty arose under Restatement (Second) of Torts § 323 and S and J was negligent in the services it rendered to the South family as a whole. S and J responds that this provision is not applicable to the facts of this case. This court has adopted § 323 as a correct statement of the law which can support a duty in appropriate circumstances. See Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 490, 657 P.2d 532 (1983).
Restatement (Second) of Torts § 323 (1964), Negligent Performance of Undertaking to Render Services, provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.”
“Section 323 is based upon the legal principle that a valuable consideration is not a prerequisite to the existence of a duty to exercise due care. The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which an action lies. See 57 Am. Jur. 2d, Negligence § 45, p. 392 and the many cases cited therein. Stated in another way, where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking the act must generally be performed with ordinary or reasonable care.” Circle Land, 232 Kan. at 488-89.
The plaintiffs cite Circle Land and Cunningham in arguing that S and J undertook to render services it recognized as necessary for the protection of the South family under the rental agreement and the community guidelines and a question of fact remains whether it exercised reasonable care and the South family suffered harm as a result of its reasonable reliance upon that undertaking.
In Circle Land, the plaintiffs, owners of International Harvester irrigation engines, contacted a product specialist for Amoco Oil for a recommendation on what type of oil should be used in the machines. Defendant International Harvester subsequently conducted a surveillance program on the engines and initially determined that the oil recommended by Amoco was suitable. Subsequently, damage resulted to the machines from the type of oil recommended. At trial, the plaintiffs’ theory of liability was based upon § 323, and International Harvester argued it was a mere volunteer that was conducting the surveillance on new engines to obtain information regarding engine problems that would normally occur during the warranty period. This court disagreed and found the evidence supported a claim for recovery under § 323. 232 Kan. at 488-91.
In Cunningham v. Braum's Cream & Dairy Stores, 276 Kan. 883, 80 P.3d 35 (2003), the plaintiff customers of the defendant’s ice cream store brought a negligence action against the defendant after its employees shooed them out of the store into the path of a tornado. They were injured while driving home when the tornado threw a truck into their car. The evidence established that the defendant’s employees were aware at that time that a tornado warning was in effect and had heard reports of a tornado sighting in the area. Additionally, the defendant had an emergency action plan that “if a tornado is sighted, or a Civil Defense warning sounds, anyone not wishing to leave should be directed to the ‘milk room.’ ” The employees did not tell the plaintiffs about the tornado warning or the emergency action plan. 276 Kan. at 885.
On appeal, the plaintiffs argued in part that summary judgment was inappropriate because a duty arose under Restatement (Second) of Torts (1964), quoting § 323 but citing § 324A. As such, the court addressed both provisions. In discussing whether a duty arose under § 323, the court first discussed the only two Kansas cases which had found a duty arose under § 323, Circle Land and Burgess v. Perdue, 239 Kan. 473, 481, 721 P.2d 239 (1986). In Burgess, this court found a duty arose under § 323 when a doctor voluntarily assumed the responsibility to relay a mother’s request for a partial autopsy of her son to the coroner, but he failed to do so and a full autopsy was performed. 239 Kan. at 481-82. The Cunningham court quoted from Burgess as follows:
“In most of the cases finding liability, the defendant has made the situation worse, either by increasing the danger, by misleading the plaintiff into the belief that it has been removed, or by depriving him of the possibility of help from other sources. Many of the decisions state that some such element is necessary, and that there can be no liability where the conduct in no way aggravates the situation or misleads the plaintiff, and he is left no worse off than he was before. . . 239 Kan. at 481 (quoting Prosser and Keeton on Torts, § 56, pp. 381-82 [5th ed.1984]).” 276 Kan. at 892-93.
In finding the evidence to support a § 323 duty wanting, the Cunningham court found that the only evidence of an undertaking, the emergency action plan, did not compel any particular action by the employees under the facts of this case. Additionally; it distinguished Circle Land and Burgess, where the defendant’s behaviors induced the plaintiffs’ detrimental reliance, by holding no duty arose under § 323 because no evidence was presented that the plaintiffs relied upon the emergency action plan. The court concluded that the plaintiffs “cannot demonstrate that they looked to [defendant] for services they now argue [the defendant] had a legal obligation to provide.” 276 Kan. at 895-96.
In this case, the plaintiffs argue “there is no factual question as to whether S and J undertook to render services to the South family.” As under the premises liability analysis, S and J continues to rely upon the contractual obligations under the rental agreement and the community guidelines. However, as discussed above, these provisions did not impose a duty upon S and J to provide protection for the tenants of Green Acres. As such, we conclude that the rental agreement and the community guidelines themselves do not demonstrate an undertaking to render services.
However, the question we determine is whether S and J’s actions in contacting an attorney and directing him to send a letter to James banning him from the premises constituted an undertaking to render services. A defendant’s agreement or affirmative act indicating a willingness to provide services is a threshold requirement for such a duty to arise. Cunningham, 276 Kan. at 894. The extent of the undertaking defines the scope of the duty. McGee v. Chalfant, 248 Kan. 434, 442, 806 P.2d 980 (1991).
In making this determination, we have looked at how the “undertaking” language is applied in both § 323 and § 324A cases. Aside from Circle Land and Burgess, in most cases we have not found an undertaking sufficient to give rise to a duty. See, e.g., Roe v. Department of SRS, 278 Kan. 584, 595, 102 P.3d 396 (2004) (SRS undertaking to monitor services provided by the Bureau of Indian Affairs and county mental health center was only a limited or incidental undertaking which did not give rise to a § 324A duty); Cunningham, 276 Kan. at 896 (emergency action plan was not a sufficient undertaking where it did not speak to the situation presented); Honeycutt v. City of Wichita, 251 Kan. 451, 466-67, 836 P.2d 1128 (1992) (school district’s handbook that safety patrol should be stationed at railroad crossing as needed was not an affirmative assumption of a duty to provide safety patrol at railroad so as to constitute an undertaking); Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 901 P.2d 515 (1995) (KAAMCO had not undertaken to inform nondirectly insured physicians about certain malpractice coverage).
Likewise in this case, even when viewing the facts in the light most favorable to the plaintiffs, the only evidence of any undertaking is the letter sent by S and J’s attorney to James McCarter. The letter provides no insight as to why James had been asked to stay off the premises. S and J’s owner explained the letter was sent in response to a tenant babysitter’s complaint that boys were cussing on the premises. The only evidence that the letter was sent in regard to a fight came from James’ father’s recollection of a conversation with the Green Acres operation manager, who in the same conversation, permitted James to return to the premises because she had no evidence that he was involved in a fight. Under this factual scenario, we conclude that as in Cunningham, the letter was not an undertaking to address the situation presented, i.e., to protect the residents of Green Acres from future physical harm by James but, rather, was an undertaking to respond to the complaint of a resident about noise in the mobile home park. S and J, thus, did not undertake to render a service which it should have recognized as necessary for the protection of its residents.
As S and J’s actions did not constitute an undertaking necessaiy for protection of its residents as to give rise to a duty under § 323, we need not consider whether S and J’s failure to exercise reasonable care increased tire risk of such harm or the harm was suffered because of the others’ reliance upon the undertaking. Restatement (Second) of Torts § 323(a) and (b) (1964). The trial court properly concluded drat S and J owed no duty to the plaintiffs as a matter of law.
Restatement (Second) of Torts § 324A (1964)
The plaintiffs further argue that a duty arose under Restatement (Second) of Torts § 324A (1964) and S and J was negligent in the services it rendered to Isaac. This provision was adopted by this court in Schmeck v. City of Shawnee, 232 Kan. 11, 25-27, 651 P.2d 585 (1982). Restatement (Second) of Torts § 324A (1964), Liability to Third Person for Negligent Performance of Undertaking, provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by tire other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
The plaintiffs argued that Isaac was the third-party beneficiary of the services to be rendered to his parents John and Linda South by S and J. They reason that S and J entered into an agreement with John and Linda to enforce the community guidelines which were for the benefit of their minor son, Isaac.
S and J argued that § 324A is not applicable to this action because S and J did not undertake or display a willingness to undertake services for the benefit of a third party. S and J compares this case to Cunningham where the court held that § 324A “lacks even arguable applicability to the situation before us” where there was no third party to be benefitted or protected. The court found that if a duty arose, it flowed only from the store’s undertaking to provide services directly to another, the customer plaintiffs, under § 323. 276 Kan. at 891. S and J contends that Isaac likewise fails to qualify as a third party under § 324A because he was listed as a resident in the lease agreement, and similar to Cunningham, any undertaking would be a direct relationship with no third party involved.
In light of our analysis above, we conclude that no duty arose under § 324A because S and J did not undertake to perform services for the protection of a third person or his or her things. Additionally, we note that even if such an undertaking occurred, although John and Linda South were the only ones who signed the rental agreement and the community guidelines, Isaac was specifically listed as a resident of Green Acres in the rental agreement and thus was subject to the same rules and conditions for residing in Green Acres as his parents. As in Cunningham, if a duty arose, it flowed from landlord S and J’s undertaking to provide services directly to Isaac for his safety as a resident or tenant of Green Acres and does not involve a third party as is required by § 324A. The plaintiffs’ reliance upon § 324A is misplaced.
Affirmed.
Luckert, J., not participating.
Lockett, J., retired, and Larry T. Solomon, District Judge, assigned.
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of robbery as an accessory before the fact, and appeals.
At about 10:30 in the morning of Wednesday, October 29, 1919, three men alighted at the station at Rago, a village south of Kingman, in Kingman county, from a Santa Fe passenger train coming from the west. They were Carl Sheldon, Robert Roberts, and the defendant. At about 12:15 p. m. the three men took a northbound Santa Fe train for Hutchinson, a city in the county north of Kingman, which departed from the station at which the train from the west arrived. In the meantime the defendant went to the post office, ordered his mail forwarded to Hutchinson, returned to the station, purchased his ticket for Hutchinson, and loitered about waiting for the train. The station agent asked him if he knew Sheldon and Roberts, and he said he did not know them personally, but he thought their business was gambling.
Immediately on arrival at Rago, Sheldon and Roberts went west from the station about half a mile and then north about a quarter of a mile, to the house of a Mexican who was a section hand employed by the railroad company. The Mexican was away at work on his section. Sheldon and Roberts entered the house, bound the Mexican’s wife and small child to chairs with ropes, took from the place where it was kept a sum of money amounting to $300, returned to the railroad station, and took the train for Hutchinson as stated.
That afternoon in Hutchinson the defendant purchased an automobile, and at about six o’clock in the evening arranged with Sheldon and Roberts to go to Enid, Okla. The price of the automobile was $225, of which the defendant paid $50 in cash. The next day the three men started for Enid in the automobile, avoiding the more direct route which would have taken them through Kingman and Rago. Four or five days after they arrived at Enid the defendant went to the post office, received a letter, read it, tore it up and threw it in a trash can, and then went to his automobile standing nearby, where Sheldon and Roberts were waiting. A police officer appeared, arrested the three, and held them for the Kansas sheriff.
The information charged the three men jointly with robbery in the first degree. The defendant demanded a separate trial. Sheldon and Roberts were tried first, and were convicted. The evidence connecting the defendant with the crime was circumstantial, and he claims it was insufficient to sustain the verdict.
The three men were together in Hutchinson the week before the robbery. They left there on Friday, went to Kingman, then to Norwich, and arrived at Rago on Sunday. Sheldon and Roberts went on to Belvidere, but returned to Rago on Monday. On Tuesday night the three went to Nashville, ostensibly on a gambling trip, and returned to Rago on Wednesday morning, as stated. The defendant’s brother, W. A. Ward, was the section foreman under whom the Mexican worked, and lived a block distant from the Mexican’s house. The defendant stayed with his brother until he went to Nashville. On Monday evening W. A. Ward went to the Mexican’s house to collect some money, which the Mexican paid. The Mexican took the money from the purse from which Sheldon and Roberts obtained the $300. On Tuesday the Mexican’s wife saw Sheldon, Roberts and the defendant in front of W. A. Ward’s house. They appeared to be in conversation, and pointed toward her house. Afterwards they passed by her house, and she saw their faces and was able to identify them. The week before the robbery W. A. Ward had obtained from a store some rope with which to tie a hog he was taking home to be butchered. There was evidence identifying the rope with that used to tie the Mexican woman and her child. The letter which the defendant received at Enid was written by his brother two or three days after the robbery occurred. The defendant testified the letter did not advise him he was suspected, but it might have said something about Sheldon and Roberts being suspected. The defendant said that when the three arrived at Rago from Nashville on the day of the robbery and Sheldon and Roberts immediately went west in the general direction of the Mexican’s house, they told him they were going to the stockyards to get some cards they had buried there. Referring to the trip to Nashville, a witness for the state, who saw the defendant waiting at the depot, testified he said to the defendant, “I understand you fellows were out there to have a 'game,” and asked the defendant how they came out. The defendant replied they got eighteen dollars apiece. The defendant told the sheriff of Kingman county they went to Nashville for a game, but did not have it after they got there.
Sheldon and Roberts acted with such directness, certainty and speed that they necessarily possessed full and accurate knowledge of all the conditions with which they were to deal. Although strangers in the community and, according to the Wards, not near the scene of the crime while they were at Rago, they knew that a Mexican living on the outskirts of the village kept a sum of money in his house sufficiently large to make robbery worth while, knew Where to find the money in the house, knew when the Mexican would be away from home, knew just what they would encounter, and were prepared to act accordingly. Apparently, proximity of the Mexican’s house to W. A. Ward’s house was not considered an element of danger. From what source did Sheldon and Roberts obtain their information ? Manifestly from the defendant, who obtained it from his brother. As neighbor, employer and creditor of the Mexican, W. A. Ward knew much about him. Whether or not W. A. Ward went to the Mexican’s house on Monday night to find out the size of the Mexican’s roll of bills and where he kept it, he did find out. He testified he had never seen Sheldon and Roberts. The next day Sheldon, Roberts and the defendant were acting concertedly in front of W. A. Ward’s house, and apparently with respect to the locality of the Mexican’s house, and the unity of the group was not fully dissolved until the defendant demanded a separate trial. The trip to Nashville, the return, and the leaving for Hutchinson on the first train, were to afford an alibi in case the confederates were suspected. The defendant did not go to the Mexican’s house because three men were not needed there, and because, being known at Rago, his careless presence about town would absorb attention and avert suspicion. It so happened, however, that a witness watched Sheldon and Roberts go west from the station as soon as they arrived from Nashville, a fact which, when disclosed, induced the defendant to invent the tale of cards buried at the stockyards. The quick departure from Hutchinson, forty miles north of Rago, to a town in another state far south of Rago, by the conveyance and route chosen, was designed to baffle pursuit and afford opportunity to hear from Rago. Sheldon, Roberts and the automobile were all in waiting when the defendant came out of the post office at Enid with the letter; but an officer was waiting, too.
The foregoing presents in substance the state’s theory of the case, which the jury evidently accepted. The only serious question was whether the defendant merely gave information to Sheldon and Roberts, or whether he was guilty of participation in commission of the crime. The defendant was a witness in his own behalf. He testified he had followed the harvest northward during the summer, and then had worked as a threshing hand during the fall, meeting Sheldon and Roberts at Hays-. Doubtless the jury regarded the state’s theory as fortified by the defendant’s denial of acquaintance with his associates; by his failure to give any explanation of his intimate and continued relations with them; and by his failure to give any reason for going to Hutchinson and immediately leaving there, for his sudden need of an automobile and ability to buy one, for going to Enid, for idling about Enid with his two companions, and for some other features of his conduct. The whole case considered, the jury was justified in concluding the defendant counseled, aided and abetted commission of the robbery.
The defendant takes up the chain of evidence link by link— or better, the cable of evidence strand by strand — considers each part separately, and asserts it did not .reach the defendant, and concludes the evidence concerning it was improperly admitted. Collection of W. A. Ward’s debt from the Mexican, the rope, purchase of the automobile, and gambling are among the subjects so treated. The fallacy of the defendant’s method is apparent, and need not be discussed. The connection between W. A. Ward’s visit to the Mexican’s house and the robbery has been sufficiently indicated. Sheldon and Roberts provided themselves with a rope with which to tie the Mexican woman and her child. If the rope came from W. A. Ward’s premises, the fact tended very strongly to implicate the defendant. Purchase of the automobile was pertinent, first as showing the defendant was in funds immediately after the robbery, and second as the conveyance used in the second stage of flight from the scene of the crime. The evidence relating to gambling was not offered to show the defendant was guilty of crimes other than the one charged, but to demonstrate his intimate relation with Sheldon and Roberts, who were gamblers.
The defendant complains particularly of the evidence relating to the letter and its contents. The rule that a defendant is not bound by statements in letters from third persons unless he has acted on them is cited. W. A. Ward testified' he did not know his brother was suspected when he wrote the letter, and the contents of the letter were not divulged, except that the defendant testified it might have said Sheldon and Roberts were suspected, but it did not mention his name. Consequently, it cannot be said the defendant suffered any substantial prejudice as a result of inquiry respecting contents of the letter. However, the entire letter incident constituted a relevant circumstance, the importance of which was for the jury to judge. It was a fair inference that Enid was virtually a place-of temporary refuge, and what to do next depended on advice from Rago. In due time the person who watched the progress of events at Rago mailed the letter. When it was received at Enid it was of such a character that the defendant did not care to keep it on his person, and he destroyed it, practically, if not actually, in the presence of the officer who arrested him.
Some complaint is made that proper evidence .offered by the defendant was rejected, but it does not appear the evidence was produced at the hearing on the motion for a new trial, and the rulings are not reviewable.
The defendant requested an instruction relating to circumstantial evidence, based on the decision in thé case of Carl Horne v. The State of Kansas, 1 Kan. 42, in which it was said :
“A few facts, or a multitude of facts proven, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show that the prisoner committed the crime, but they must all be inconsistent with any other rational conclusion.” (Syl. ¶ 2.)
In the present case the court directed the jury in substance that it was necessary for the state to establish guilt of the defendant beyond reasonable doubt; that each fact necessary to the conclusion sought to be established should be proved by competent evidence beyond a reasonable doubt; that all facts necessary to the conclusion should be consistent with each other and with the main fact sought to be proved; and that the circumstances, taken together, should be of a conclusive character, leading to a satisfactory conclusion, to a reasonable and moral certainty, that the defendant was guilty.
The mode of expressing the certainty required in order to convict on circumstantial evidence was not unalterably fixed by the decision in the Horne case. Thus, in the case of The State v. Adams, 20 Kan. 311, instead of instructing as requested according to the formula of the Home case, the court instructed the jury that the “circumstances must be such that [they] wholly- satisfy the minds of the jurors that the fact not only may have existed, but necessarily must have existed from the facts proven.” (p. 328.) This court approved the instruction given, saying a distinction between the two forms was not easily perceptible. The essence of the matter is that the proof as a whole must be inconsistent with any reasonable hypothesis of innocence, and this degree of assurance is attained if the proof of guilt be of a conclusive character, satisfying the mind to' a reasonable and moral certainty.
The defendant requested the following instruction:
“You are instructed that it is the duty of every juror to reach the same verdict, and you cannot return your verdict into court until all twelve members of the jury agree upon the same verdict, which must be signed by'your foreman.”
Presumably the purpose was to call attention to the individual responsibility of each juror, but the instruction not only failed of its purpose, but misstated the law. Another requested instruction was that no juror should compromise his verdict in order to get out of the jury box or secure return of a verdict. Whatever may be said of the request, there is no claim that any such conduct occurred, and consequently no prejudice to substantial rights of the defendant appears. Instructions regarding the manner in which the jury should deal with specific items of evidence were properly refused. The law of the case was correctly and adequately stated in instructions which were given.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This action involves the right of the parties in an oil and gas lease as affected by a drilling contract executed by plaintiffs to the defendant. The parties, five in number, obtained a lease on September 23, 1916, which was to run for a period of four years, and it provided if oil and gas was not produced in paying quantities within the term, it should expire and thereafter should be of no force and effect. Each of the parties had a share in the lease of different proportions. In order to develop the property, the plaintiffs, four in number, entered into a drilling contract with Johnson, the fifth member of the party, on March 31, 1919, and it provided that the defendant should take possession of the property and drill oil and gas wells on it. It stipulated that he should commence operations on or before May 1, 1919, and that the payment for and erection of a derrick should be deemed the commencement of operations. It was further provided that de fendant would begin drilling operations on or before June 1, 1919, and failing in this he was to forfeit the derrick erected on the premises. There was a further provision that he was to deliver to the plaintiffs one-eighth of the oil produced, and further that upon the completion of the first well the drilling of a second should be commenced within sixty days thereafter, and that the drilling should be continued in like manner until eight wells had been drilled, and that his failure to drill wells as stipulated should be deemed an abandonment of the contract by him except as to that part of the land on which producing wells had been drilled. The defendant did not pay for and erect a drilling derrick upon the property on May 1, 1919, as stipulated, but he did obtain material for a derrick and placed it on the premises about May 26, 1919. A derrick had not been erected nor had drilling operations begun on June 1,1919, as the contract provided, and no drilling had been done on November 8, 1919, when this action was commenced. .
The plaintiffs asked for the appointment of a receiver as a means of protecting the interests of the several parties in the lease, and also for the forfeiture of the defendant’s interests under the drilling contract. The court found and adjudged that the plaintiffs, other than W. H. Matthews, were entitled to a forfeiture of the drilling contract, including the derrick on the premises, and as to Matthews it was held that the contract should remain in full force and effect. A stipulation of the parties was made, providing for the operation of the lease during the progress of the litigation, but it was agreed that it should not prejudice the rights of any of the parties nor affect the determination of the questions at issue upon the pleadings.
It is conceded by the defendant that he failed to comply with the conditions of the drilling contract, but he contends that there was a sufficient excuse for his delay, and that no good grounds for adjudging a forfeiture existed. One excuse is that on May 29, 1919, W. H. Matthews agreed to extend the time for beginning drilling operations until July 15, 1919. It appears that W. H. Matthews did sign such an agreement, but it is clear that he acted only for himself and had no agency or authority to represent or bind the other plaintiffs. This was recognized by the defendant, who requested Matthews to pro cure the consent and signatures of the other plaintiffs to the extension agreement. They refused to consent to an extension and declined to sign the agreement. Whatever effect it may have had on Matthews who did sign the incomplete agreement, it did not affect the rights of those who refused to sign it. The court correctly held that there was no partnership relation between the parties, and that the consent of Matthews had no binding effect upon the other plaintiffs. There were good grounds for the forfeiture. The derrick was not erected in compliance with the agreement, and drilling operations were not begun at the time stipulated. The life of the oil and gas lease was of short duration, expiring by its terms in September, 1920, and therefore time was an important element of the drilling and development contract. There was no such laches or delay on the part of plaintiffs in asserting a forfeiture as will deprive them of the right to insist on a cancellation of the drilling contract, and the clearing of the way so that development of the lease may promptly proceed. While. forfeitures are not favored, the plaintiffs were clearly entitled to the relief that was awarded. (Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527.)
There is nothing substantial in the excuses of the defendant to the effect that suits of forfeiture were threatened, nor in the claim that the point at which a well was to be drilled had not been fixed by agreement.
W. H. Matthews complains of the ruling refusing a forfeiture as to him. He contends that the extension agreement which he signed and by reason of which he was denied relief, was not binding upon any of the parties because all of them did not join in its execution, and according to defendant’s testimony, he too regarded the consent and signatures of the other parties to be necessary to an effectual agreement. Assuming, however, that it was binding upon W. H. Matthews, it appears that he only consented to an extension of forty-five days, which would carry it up to July 15, 1919. Defendant, however, did not commence operations at that time, nor was any drilling done by him up until the commencement of the action. We therefore think that equity required the forfeiture and cancellation of the drilling contract as to W. H. Matthews as well as the other plaintiffs. The judgment will be modified to that extent, and when so modified, is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The main question in this lawsuit concerns the validity of a will.
The plaintiff sued her three brothers for partition of her deceased father’s estate, on the assumption that a joint will made by her father and mother in their lifetime was void on its face, and void also because it was not offered for probate within three years after her father’s death. The will, abridged, reads:
“JOINT WILL.
. “Last Will and Testament of Charles Samuelson and Christine Samuelson, Husband and Wife.
“Know all Men by These Presents, and to all to whom these presents may concern be this known, that we Charles Samuelson, of the age of 72 years and upwards, and Christine Samuelson- of the age of 75 years and upwards, of the Town of Athol, in Smith County, State of Kansas, and each being of sound and disposing mind and memory do make, publish and declare this our last will and testament in the following manner, That is to say . . .
. “Second. We, and each of us, do hereby give, devise and bequeath unto our beloved son, Frank Samuelson . . . (158 ácres described.)
“Third. We, and each of us, do hereby give, devise and bequeath unto our beloved son, Gus Samuelson, . . . (157 acres described.)
“Fourth. We, and each of us, do hereby give, devise and bequeath unto our beloved son, John Samuelson, . . . (80 acres described.)
“Fifth. We, and each of us, do hereby give, devise and bequeath unto our beloved daughter, Annie Moore (formerly Annie Samuelson . . .), [a house and messuage in Athol described] upon condition that said Annie Moore is to pay the said testators herein the sum of six ($6) dollars per month rental during the life time of said testators and each of them, and at the death of both of said testators to become the property of said Annie Moore, if the above provisions are complied with by her.
“Sixth. We, and each of us do hereby give, devise and bequeath unto our said sons, John Samuelson, Gus Samuelson, and Frank Samuelson, all our personal property, moneys, chattels and effects that we may die seized of . . .
“The above and foregoing provisions and conditions of'this our last will and testament are not to be in force or effect until we, the said Charles Samuelson and Christine Samuelson, testators herein, and each of us are' both dead, then this instrument to be and become in full force and effect.”
The trial court’s findings of fact are not controverted. In part, they read:
“2. About two weeks after the death of Charles Samuelson [April 22, 1909] his two sons, Gus Samuelson and Frank Samuelson, knew that a will had been made and had some idea about the terms of the will, but they had not seen the will and did not exactly know its contents.
“3. The widow, Christine Samuelson, had the will under her control, it being in the' hands of Uhl & Uhl, attorneys of Smith Center, Kansas.
“4. The latter part of August, 1912, Gus Samuelson, Frank Samuelson and their mother, Christine Samuelson, procured the will from the office of Uhl & Uhl and caused it to be filed for probate. It was admitted to probate by the probate judge of Smith county, Kansas, on or about the 24th day of August, 1912, but the executors named in the will did not qualify and no action was taken by the court or the executors further with reference to administering the estate of Charles Samuelson.
“5. Christine Samuelson died December 5th, 1918.
“6. The court further finds that the defendants, Gus W. Samuelson and Frank Samuelson, have occupied the premises that were attempted to be devised to them ever since the death of their father as tenants of their mother, Christine Samuelson, and have paid her rents for said premises ever since their father’s death.
“7. The evidence shows that the defendant, John C. Samuelson, never did occupy the premises attempted to be devised to him and has never had anything to do with the land.
“8. The evidence also shows that the' plaintiff, Annie L. Moore, was living in the house, which the will attempted to devise to her, at the time of her father’s death, and was paying to him for said property, and after his death she continued to occupy it. She did not in fact pay any rent after her father’s death, but the testimony shows it was the understanding she was to pay rent and her mother either neglected to collect it or didn’t care to collect it.
“9. The evidence also shows that the funeral expenses of Charles Samuelson were paid by Christine Samuelson, and that Christine Samuelson drew the rents from all the property except the house occupied by Annie L. Moore'during her lifetime, and that there remains in the estate or joint estate of Christine Samuelson and Charles Samuelson, the sum of $750.00 in cash besides other property, and that this property and money remains after paying the funeral expenses and expenses of the last illness of Christine Samuelson.”
The trial court held the will void and decreed partition; hence this appeal.
Counsel for appellants cite standard authorities sustaining ■ joint and mutual wills. Such wills are valid. (Carle v. Miles, 89 Kan. 540, 132 Pac. 146; Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421.) We are also reminded that there is a modern Kansas rule for the interpretation of wills — that the testator’s intention shall govern and that such intention is to be gleaned from the entire text of the will, giving due significance to all its parts. That, too, is correct. (Markham v. Waterman, 105 Kan. 93, 181 Pac. 621.) But so far as this record shows, the father, Charles Samuelson, owned all the property bequeathed. by this will. His wife owned none of it. When the wife, Christine, elected to take under this will, what property did the will bestow on her? None, not a word does the testament utter as to what she was to receive. So the fact that Christine joined in this will and in the bequeathing of her husband’s property can only be regarded as surplusage (Allen v. Allen, 28 Kan. 18), and the will is to be sustained if at all, by considering it as the will of Charles Samuelson.
“The wife, having nothing on which the will could operate, is held to be a mere cipher in the transaction. The will, therefore, was that of the husband in the same manner as though the wife had not signed it, and all her declarations and acts must be rejected as surplusage.” (Allen v. Allen, supra, p. 24.)
The findings of fact are that Charles died on April 22, 1909, and the will was not offered for probate until August 24, 1912 —three years, three months and eighteen days thereafter. During all that time it was under the power and control of Christine.
The statute says:
“No lands, tenements or hereditaments shall pass to any devisee in a will who shall know of the existence thereof, and have the same in his power and control for the term of three years, unless within that time he shall cause the same to be offered for or admitted to probate; and by such neglect the estate devised to such devisee shall descend to the heirs of the testator.” (Gen. Stat. 1915, § 11785.)
In view of this statute, Christine, the mother, could not acquire any interest in her husband’s property under the will. But we see no infirmity in the will so far as it devises property to the three sons and the daughter. Only two of the children, Gus and Frank, knew of the existence of the will before its probate, and it was not under the power and control of either of them. There was no suppression of the will on their part, nor on the part of Anna and John.
When Christine joined with her husband in the making of the will she assented in the presence of two witnesses to the disposition of the property made by her husband. That should be construed as a satisfaction of the statutory provision requiring the assent of one spouse to the testamentary disposition of the property of the other spouse. (Gen. Stat. 1915, § 11790.) '
Again, it may be said that Christine assented to her husband’s disposition of his property when she withheld the deed from probate until the statute barred any right in herself under the will. And, still again, when the will was probated she waived her statutory rights as widow of Charles, and neither formally nor informally did she claim any such right. It was, of course, an abortive act for her, after withholding the will from probate for over three years, to elect to take under the will, because such election would not cure her delay in probating it, nor revive her extinct statutory rights.
If we were to read into this will the intention of the parties, as gathered from the will itself and the evidence available, we would inevitably arrive at the same result. Christine joined with her husband in the making of her husband’s will. Both intended that Frank, Gus, John and Anna should have the properties as devised to them by Charles, the husband and father. Undoubtedly Charles and Christine intended that a life estate should intervene in favor of the survivor before it should descend to their children in the portions devised to them. They obviously forgot to insert a clause providing for such life estate. And while no court could remedy this will by interlining an amendment to cover that omission, the omission in fact wrought no hardship to Christine, the widow. Informally, with assent and acquiescence of her children, she did in fact enjoy the life estate until she died. The questions relating to her life tenancy which might have arisen if challenged in her lifetime need not concern us now.
But appellee insistently urges upon our attention the clause in the will which says that the devises to the children should not take effect until Charles and Christine were both dead. We do not overlook that clause, and we think it falls under the ordinary rule that it be construed with the other provisions of the instrument to uphold it rather than to defeat the will. In Ernst v. Foster, 58 Kan. 438, 49 Pac. 527, it was declared:
“A -will is to be construed, not alone by its language, but by the condition of the testator’s family and estate; and the judicial expositor should put himself as far as possible in the position of the testator, and take into consideration the circumstances surrounding him when the will was executed.” (Syl. ¶ 1.)
In Holt v. Wilson, 82 Kan. 268, 108 Pac. 87, it was said:
“Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by-subsequent vague or doubtful expressions.” (Syl. ¶ 1.)
In the analogous case of Nolan v. Otney, 75 Kan. 311, 89 Pac. 690, a deed of conveyance contained a clause providing that it should not take effect or be in force until the death of the grantor, but at that time title in the grantee should become absolute. The court said:
“The real intent of the grantor being the object of our search, the inquiry is, not what do his words mean in strict legal contemplation, but in what sense did he use them — what idea did he employ them to convey. The decisions are not in harmony on the subject, but a well-defined tendency clearly appears in .the more recent cases to uphold the deed if possible, and if necessary to that end to regard it as speaking with colloquial freedom rather than with formal accuracy. . . .
“Applying the reasoning of these cases to the facts here presented we are convinced that the real purpose of Dolan, so far as disclosed by the language of the deed now under considertion, notwithstanding his failure to express it in correct terms, was to vest a title immediately in Otney, reserving only a life-interest in himself; that is to say, the deed should be taken to mean this in the same sense and for the same reasons that such meaning is imputed in the case of the deposit of an ordinary deed under the same circumstances — the words relied upon to change the usual rule do not have that effect.” (pp. 313, 315.)
These considerations impel us to hold that title passed to the devisees on the death of their father, the testator, and he merely intended that enjoyment by them should be postponed until his wife and he were both dead. Moreover, his intention and his widow’s intention also were literally complied with, and she did enjoy the life estate notwithstanding the failure to include a provision therefor in the testament.
The judgment of the district court is reversed, and the cause remanded with instructions to enter judgment for the defendants.
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The opinion of the court was delivered by
Johnston, C. J.:
R. J. Bell was prosecuted for and convicted of obtaining money under false pretenses, and from the judgment he appeals.
The information contained fourteen counts in which he was charged with obtaining money from the parties named in the counts by false representations made to them as to the financial condition of the New Spring Creek Oil Company, the stock of which he had sold to them. It was alleged that he represented to the purchasers that the company was a prosperous and honestly managed one which was producing sufficient oil and gas to warrant the payment of dividends to its stockholders at the rate of 30 per cent per annum on its capital stock. There was testimony not only that these representations were made, but that for a time the company actually did pay dividends to stockholders at the rate of two and one-half per cent per month for a number of months. The testimony tended to show that dividends paid from the organization of the company until December, 1917, were $13,000, and that the’ entire production of the company during the same period was $1,643.30. About the date mentioned the company was reorganized and its affairs examined, when it was disclosed that instead of the company being able to pay the large dividends mentioned there was an indebtedness against it of over $31,000.
There is an assignment of error in the refusal of the court to strike out part of the information, but we find nothing substantial in the claim. Nor was there error in permitting the prosecution to amend the information by adding the word “designedly” to the charge that the defendant unlawfully,, feloniously and fraudulently made certain representations with the intent to cheat and defraud the purchasers of capital stock. The amendment was evidently made out of abundance of caution as probably the proof could have been as fully presented under the information as it was originally drawn. Neither can it be said that there was any abuse of discretion in denying the motion for a continuance on account of the amendment.
Error is further assigned on the overruling of a .motion to quash the information. The ground of the motion is that there were fourteen distinct felonies charged in fourteen separate counts, and that this was duplicity in pleading, which is not permissible, and necessarily resulted to the prejudice of the defendant. Formerly it was the practice to confine the joinder of several offenses in a pleading to misdemeanors, and in some jurisdictions that practice still prevails. The propriety of joining felonies has been considered by this court in a number of cases and the practice has been repeatedly upheld. This is conceded by the defendant, but he calls attention to decisions in other states to the contrary and insists that under any view the joinder amounted to an abuse of discretion in the present case. The question received careful attention in The State v. Hodges, 45 Kan. 389, 26 Pac. 676, where seven distinct embezzlements were joined in a single information and the defendant found guilty on six of the counts. On an appeal it was held:
“Several separate and distinct felonies may be charged in separate counts of one and the same information, where all the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment; and the defendant may be tried upon all the separate counts at one and the same time; all resting in the sound judicial discretion of the trial court.” (Syl. ¶2.)
In the case of The State v. Warner, 60 Kan. 94, 55 Pac. 342, the defendant was charged in an information stating eleven different offenses, namely, that he received deposits from eleven different depositors knowing that the bank of which he was an officer was insolvent. He was convicted of four different offenses, and the court in meeting the contention that several distinct felonies could not be,prosecuted in a single trial approved the ruling in the Hodges case, and remarked:
“The reasons for the distinction which formerly prevailed in England between prosecutions for felonies and 'for misdemeanors no longer exist. Where the usual punishment for the commission of a felony was death, great strictness in charging the offense, as well as in the mode of trial, was and ought to have been maintained; but in this state, and in this country generally, there is no broad distinction between the character of the punishment inflicted for misdemeanors and for felonies other than murder. . . . The mode of trial in all cases is substantially the same, and in cases like the one under consideration, where the proof must necessarily be in part the same on all of the charges, it seems entirely proper to join charges of separate transactions of similar character. The tendency of the courts in most of the states seems to be to uphold the practice and follow the rule adopted in the case of The State v. Hodges, supra. (10 Encycl. Pl. & Pr. 547, et seq.)” (p. 98.)
Other cases of like import are: The State v. Zimmerman, 47 Kan. 242, 27 Pac. 999; In re White, Petitioner, 50 Kan. 299, 32 Pac. 36; The State v. Bussey, 58 Kan. 679, 50 Pac. 891; The State v. Young et al., 70 Kan. 900, 79 Pac. 1133. Here the offenses charged were of the same general character, required the same mode of trial, the same kind of evidence and the same kind of punishment, and we think there was no abuse of judicial discretion in permitting the trial of defendant for the several offenses under a single information.
Error is assigned on the admission of the testimony of George H. Hunter, relating to statements made by defendant at a directors’ meeting on December 14, 1917, with reference to the production of oil within the preceding six months, and also as to the payment of dividends, the indebtedness of the company, and its reorganization. It is said that the testimony was too remote and was incompetent to sustain the charge made against the defendant. The statements made by Bell of which testimony was given as to the production of oil and gas, and that relating to the financial condition of the company, were manifestly competent and proper. Some of the -testimony challenged may have been objectionable because some of the answers were in the form of conclusions, and some of his evidence may have been immaterial, but there was a thorough cross-examination of this witness, and taking all the evidence together it shows that the rights of the defendant were not prejudiced by the testimony.
There is a further objection that a witness who had been a .purchaser was allowed to state that she was a widow when she purchased the stock, but the defendant is hardly in a position to complain of this, since according to the testimony he had stated that he wished to sell to widows especially and give them the benefits of the profitable investment.
Complaint is made of the admission of certain testimony given by S. M. Brewster, who was assisting in the prosecution of the case. He testified in effect that in 1916 while he held the office of attorney-general and was acting as president of the board administering the “blue-sky” law, the defendant made application to the board for admission to sell the capital stock of the company. He undertook to identify and present the written application signed by the defendant, and it was received in evidence together with the affidavit of defendant, and a copy of the by-laws of the company, which were presented in connection with the application. In that connection another paper was introduced purporting to be the order of the board permitting the sale of the stock. It is contended that these papers were not properly identified and that the testimony was secondary evidence of records when the best evidence could have been produced. It may be observed first that the evidence was not offered to show a violation of the “blue-sky” law, but was offered to prove the representations made by the defendant, and his connection with the company. Another consideration is that no question was made as to the fact that the application was presented and granted. Neither is there any question that defendant signed the application and was given authority to sell the stock. Counsel for the prosecution stated that they were unable to* have the records taken from Topeka, where they were kept, to the place of trial, and therefore the evidence was produced in another form. Whether better proof of the facts could have been produced we need not determine. It appears that the application was made by the defendant in person, and the witness Brewster testified, as he had a right to do, as to the oral statements made by the defendant in presenting the application. They corresponded with the written one and the same is true respecting the authority given by the board to sell. At the meeting in which this action was taken the conditions on which stock might be sold were stated orally to the defendant, and the letter of authority objected to was only confirmatory of the oral order made in the presence of the defendant. Moreover, the witnesses identified the application as the one presented by the defendant, and since it contained representations relating to the subject in controversy it was competent evidence even if it had never been filed in the department or made a matter of record. On the whole, it is clear that even if there was irregularity in the action of the court in receiving the papers in evidence it was without prejudice to the defendant, and it is only prejudicial error that affords ground for reversal.
There is a complaint concerning the testimony of Miss Walton who was secretary of the company, and custodian of such records as were kept and preserved. In testifying about the indebtedness of the company she stated that a part of it was in the form of notes signed by defendant and Calongne, and upon further inquiry she testified that she did not have the notes in hand — that they were at home among the papers of the company. It was objected that the notes themselves were the best evidence, and of that there can be no doubt. It appears that afterwards, however, the witness produced the notes themselves and any error there may have been in the ruling was rendered harmless. Other evidence of this witness is challenged, but not pressed, in the brief and in it we find no good ground for complaint. The same may be said as to the objections made to the admission of testimony of one Fitzpatrick.
Another Contention is that the court erred in overruling the defendant’s motion to direct a verdict in his favor. In his behalf it is urged that the representations made by him to the effect that the company had production sufficient to pay dividends of 30 per cent of the capital stock should be interpreted to mean a production at that rate on so much of the stock as had then been sold to purchasers. The evidence does not warrant that interpretation. The ordinary meaning of the terms used in. the representations, and evidently the meaning intended to be conveyed, was not that the production warranted the payments of the large dividends on a part of the capital stock sold to the particular purchaser or to a group of purchasers, but it was rather upon the capital stock issued- by the company. Besides the disparity between the production and the dividends paid is so great as to leave no question for controversy. The authorized capital of t!he company was $100,000 and it appears that of this amount $86,000 was outstanding in July, 1917, and in December of that year stock in excess of that authorized had been issued, while, as we have seen, the production of the company up to that time was only $1,643.30. It is clear that the company was paying dividends from the proceeds of the sale of capital stock, which leads to the inference that large dividends were promised and paid to induce the purchase of stock. From the evidence it is doubtful if the condition of the company was ever such as to warrant the payment of any dividends, and there can be no doubt that the actual production was grossly misrepresented by the defendant.
Complaint is made that the court erred in overruling defendant’s request to require the state to elect as to the proof of which one of the several sales offered in evidence it relied upon for conviction. On the conclusion of the evidence for the prosecution the state announced that they did not ask for a conviction on the 2d, 4th, 5th and 7th counts, and later the court held that the evidence was not sufficient to warrant the submission of the 1st, 3d and 10th counts, and these, with those withdrawn by the state, were taken from the consideration of the jury. The defendant then moved that the state be required to elect upon which of the several sales of stock about which testimony had been given under each of the 8th, 9th, 11th, 12th and 14th counts it would rely.
The 8th count charged that Abbie Sutton was defrauded on a certain day in October, 1917. Two sales had been made to her, but in her testimony she stated that she did not remember that any representations were made to her by the defendant prior to the first sale of the stock. Her evidence tended to show that before she bought the second stock Bell made to her the representations complained of. The testimony being confined to the representations made to the sale charged in the information, there was no occasion for an election.
The 9th count charged the obtaining of money by false pretenses through a sale of two shares of stock to J. R. Cusson, in September, 1917. - It came out in the testimony that he had previously bought four shares of stock but this sale was not mentioned in the information, and as he was not charged with obtaining the latter by false representations there was no reason for requiring an election upon this count.
In the 11th count it was charged that defendant obtained $1,000 from L. S. Wright by false representations and this it appears was the third purchase that Wright had made. At earlier times sales had been made to him of different amounts, but these transactions were not mentioned in the information. The testimony could only apply to the offense charged and an election was not necessary under this count.
Under the 12th count the testimony related to a single sale only, and that is true as to the 13th count.
. The 14th count charged that in September, 1917, $1,000 had been fraudulently obtained from Mrs. Broadbent, who had purchased five shares of stock at two different times, each time paying $1,000 for the stock. The testimony was that she had not met the defendant prior to the first sale and hence the representations made by him only applied to the second sale in September, the one charged in the information.
Under the testimony, therefore, we think there was no occasion to require the elections requested. The court is vested with considerable discretion in the matter of requiring elections in such cases and the order is only to be made in furtherance of justice and where the evidence is such as to require it. (The State v. Crimmins, 31 Kan. 376, 2 Pac. 574.)
The instructions of the court are attacked in a wholesale charge that they are erroneous. In them the court defines the offenses charged, tells the jury the proof necessary to sustain them and the rules governing the jury in weighing the evidence. The discussion of this assignment is mainly confined to the contention that the evidence is not sufficient to justify the submission of the case to the jury. Holding as we do that there is sufficient evidence, a discussion of this assignment is not required.
Particular objection is made to the following instruction:
“You are instructed that there is no evidence in this case that would warrant you in finding the defendant guilty upon the 1st, 2d, 3d, 4th, 5th, 7th, and 10th counts of the information. You may, however, if the evidence warrants, and under the laws as herein defined, find the defendant guilty upon the 6th, 8th, 9th, 11th, 12th, 13th and 14th counts. In the event that you find the defendant guilty upon any one of the last enumerated counts, and fail to make any findings as to the remaining counts thereof, such a failure would amount to a verdict of not guilty.”
It is said that the last sentence of the instruction is misleading because it is open to the interpretation that the jury had no alternative but to find the defendant guilty on all of the counts or otherwise on none of them. We think the jury could not have drawn that inference from the instruction. Although somewhat abbreviated it conveys the idea that if the jury finds the defendant guilty on any of the counts and failed to make findings as to the others it would amount to an acquittal as to such other counts.
Complaint is also made that the court failed to instruct as to the degrees of the offense or the penalties therefor imposed by law. It may be said that no request was made for an elaboration of the instruction which the court gave in defining the offense. If a fuller statement as to the character of the offense was desired a request for the same should have been prepared and presented to the court. As the jury has nothing to do with the assessment of punishment in this state there is no necessity for the court to instruct the jury as to the punishment which may be measured out. for an offense. It is true that the obtaining of money or property by false pretenses is to be punished in the same manner and to the same extent as for stealing the money or property so obtained. But even if the court had been asked by defendant to instruct the jury to give consideration as to the value of the money fraudulently obtained by the defendant the request might well have been refused, as the testimony all shows beyond question that the amounts so obtained far exceeded $20, the amotmt which marks the distinction between grand and petit larceny.
A careful reading of the evidence, the sufficiency of which was challenged under several of the assignments of error satisfies us that it abundantly sustains the verdict of the jury, and no prejudicial error being found in the rulings of the court, the judgment is affirmed.
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The opinion of the court was delivered by •
Johnston, C. J.:
This action was brought by O. A. Keys to recover damages from the defendant for injury to an automobile which was struck by a moving car of the defendant at a street crossing in Council Grove, and a judgment for $375 was awarded in his favor.
In this appeal the principal complaint is that the evidence does not support the verdict and that the collision and injury were the result of plaintiff’s own contributory negligence. The collision occurred at a crossing of Main street, which runs east and west. There are three railroad tracks across the street at this point which run from the southeast to the northwest and are approximately fourteen feet apart. The western track is the main line of the railway. The one next east of it is called the passing track, and the one' eqst of that one is a stock track. On the morning of the accident plaintiff, driving his automobile, approached the crossing from the west going east, and was then driving at a speed of three or four miles an hour. His testimony is to the effect that when he approached the main track he looked for trains but saw none. He did observe a box car which was standing across the sidewalk and extended out towards the traveled portion of the street. It had been placed there the night before and there was no engine or cars attached to or near it. About the time of the accident travelers were passing back and forth over the crossing and past the end of the standing car. There was a switching crew operating an engine in the yard south of the crossing but plaintiff says that he did not observe it when he looked and listened for trains. At the time, the city was improving the street and part of it was barricaded, and loose dirt had been thrown upon the part left for travel. Plaintiff drove slowly east across the main track and, while guiding his car over the rough street across the passing track, the switching crew backed the engine and another car toward the crossing. As they approached the crossing one of the switching crew states that he uncoupled the attached car from the engine and it was kicked against the box car which was standing in the street, pushing the car .against the automobile and causing the injury in question.
Although disputed, the controlling evidence is that there was no' flagman at the crossing nor any brakeman or lookout on the end of the moving cars, and no warning was given of the purpose to bunt this car across the street. It is contended that if plaintiff had looked and listened before attempting to cross the passing track past the end of the standing car he could have seen the switch engine moving upon that track, but if he had discovered it he would have had no reason to suppose that the crew contemplated the bunting of the car across the street without giving warning of their intention to do so. If he had discovered their approach he might have inferred, and reasonably so, that they would stop and couple on to the standing car, but not that they would, without signal or warning, kick it over a much used street. If they had stopped and coupled with it in the usual way, the plaintiff could have safely passed over the crossing. The fact that the switching engine was moving back and forth in the yard some distance away was not a necessary indication that it was the intention to back across the street without lookout or signal, and especially when there was a detached car standing upon the track.
The case differs greatly from those cited by defendant in which it has been held that one who goes upon a railroad over which trains are regularly run and who may, by looking, obtain a timely view of an approaching train, is guilty of negligence per se that will bar a recovery for injury, although no signals or warning of the approach of the train are given. Here there were no train or cars on the main line, and the stationary and disconnected car was on the track over which the switch engine was moving. This situation and the circumstances surrounding him tended to throw the plaintiff off his guard and were such as to lead a reasonably prudent person to expect that cars would not be moving while he was crossing the track. We do not hold that anyone crossing a railroad track is relieved from the exercise of due care, but we do hold that under the circumstances mentioned the question of plaintiff’s contributory negligence was one of fact for the jury. A case quite closely in point is DeHardt v. Railway Co., 100 Kan. 24, 163 Pac. 650, in which it was held:
“The rule that it is negligence as a matter of law for the driver of an automobile to attempt to cross a railroad track without stopping, where without doing so he cannot assure himself that no train is approaching, does not apply where, as the automobile approaches the crossing, the train is standing still, the rear car being near the highway, and a collision results from a sudden starting of the engine.
“Where a freight car is standing near a crossing it cannot be said as a matter of law that the driver of an automobile is guilty of negligence in attempting to cross the track without assuring himself that no train is about to run into the car and force it over the highway.” (Syl. ¶¶ 1, 2.) (See, also, K. P. Rly. Co. v. Richardson, 25 Kan. 391; A. T. & S. F. Rld. Co,. v. Morgan, 43 Kan. 1, 22 Pac. 995; Railway Co. v. Johnson, 69 Kan. 721, 77 Pac. 576; Scott v. St. Louis, etc., R. Co., Note, 9 Ann Cas. 216.)
The defendant complains of the refusal of the court to require more definite answers to questions submitted to the jury. One question was:
“If you find for the plaintiff, state how far north or south of the south line of Main street was the north end of the car at the time the train crew uncoupled said car from the engine.”
The answer was: “Too indefinite to determine.”
The question itself was somewhat indefinite and the testimony on the subject was uncertain. However, the immateriality of the question is shown by an answer to another question that “at no time was the car coupled to the engine.” In no view of the case was the answer sufficiently material to affect the result. The same is true as to the question: “
“What prevented plaintiff from seeing the engine approaching the crossing if he had looked before going upon the track?”
This was answered: “We do not know.”
The refusal to require the jury to give more definite answers to these questions is manifestly not a ground for reversal.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The principal question to be determined by defendant’s appeal is whether in an action under the workmen’s compensation act the judgment is sustained by evidence which established the fact that a disease from which the plaintiff suffers was caused by an injury arising out of and in the course of his employment.
At the time of his injury, plaintiff was a young man 19 years of age. His evidence tended to show that previous to the injury he was an able-bodied man who had been working as a common laborer for about two years at construction work, pouring concrete, hauling pipe, and digging ditches, and that he had shown no indications of the disease from which he now suffers. While attempting to start a gas engine, his foot was caught in the crank case, lacerating his foot, and in attempting to release himself he fell backward into a box of trash and pieces of old iron; that he lay there in a faint from a half to three-quarters of an hour, and when he got up he could not stand on his left foot; that shortly after his injury he felt a severe pain in his neck and back; that he had fits of shaking and trembling, and lost the use of his limbs so that he walked with crutches. At the trial, which occurred about two years after his injuries, it was conceded that he was suffering with multiple sclerosis which, according to the medical testimony, is a hardening of many areas of the. brain and spinal cord which have become infected by some organism or poison that causes a deadening of the cells from which they never recover for the reason that they have no blood vessels to nourish them. It seems to be conceded that multiple sclerosis is due to a reaction of nerve centers to infection.' When the nerve center hardens or becomes destroyed it fails to function; that is, to carry along the impulses from the brain. The authorities agree that there are various causes which produce the disease; some state that acute infection may cause it or that it may come from measles, scarlet fever, smallpox, whooping cough and other infectious diseases. Heredity is given as one of the most frequent causes, and many of the authorities mention traumatic injuries, although some of the modern ones do not refer to that as a cause. The testimony of the physicians was based upon knowledge gained by consulting authorities, rather than from personal acquaintance with the disease. The principal conflict in the testimony of the physicians called by the plaintiff, and those who testified for the defendant arose over the question whether multiple sclerosis could develop from a traumatic injury immediately after such injury. One physician who testified for the defendant gave his opinion that plaintiff’s injury was absolutely independent of and had nothing to do with the disease. He thought that anything that would excite a patient who had the disease in the earlier stages would exaggerate the symptoms, but would not of itself cause the disease to become permanently worse. Another physician who testified for the defendant gave infection as the cause of multiple sclerosis, and, in his opinion, no injury would produce the disease; it was due to bacterial infection, and in multiple sclerosis it would take from three to fourteen years, in his judgment, before the symptoms were developed. He did not think it could occur in less than a couple of years. It was his opinion that the plaintiff “will not recover from the disease.” On cross-examination he said it was possible that the injury to the plaintiff brought on the nervousness and jerking sooner than it would otherwise have developed.
Dr. Baird, a regularly practicing physician, who had known the plaintiff’s family five or six years, and had treated him for multiple sclerosis, was a witness for the plaintiff. He named acute infections, scarlet fever, measles and other infectious diseases as recognized causes of multiple sclerosis, and stated that the authorities he had consulted give traumatic injuries as one, but indicate that in fifty per cent of the cases it was impossible to determine the cause; that heredity was a frequent cause, and that there had been instances where there had been as many as six or seven members of the same family suffering with the disease. To a hypothetical question, asked for the purpose of getting his opinion upon whether the disease from which the plaintiff suffers could have been caused by his injury, he answered, “I would say that it was contributory.” He explained his answer to mean that this disease might have been latent in the system prior to the injury, in which case “the injury may have been the last straw that caused the disease to blaze up at that time,” but the witness could not say that it was absolutely the cause of it, for the reason that if the disease were present in the system, it was only a question of time until it would assert itself.
In their findings the jury said that the plaintiff was totally incapacitated for work as a result of an injury received by him in the course of his employment, and that this total incapacity continued and will continue for life; that plaintiff was not afflicted with the disease of multiple sclerosis at or prior to the time of his injury. They also found that his injury did precipitate or contribute to the development of his present condition and that it was “fully responsible” therefor. The amount of compensation awarded him was $4,513.11.
The principal contention is that there was no testimony to sustain the findings and judgment. It is insisted that the .strongest testimony any witness gave was that the disease might have been caused by the injury or that the injury might have aggravated it. We have already quoted testimony of Dr. Baird, who gave his opinion that the injury was contributory, although he would not say that it was absolutely the cause of it, and the admission of a physician called by the defendant that in his opinion it was possible that the injury brought on the nervousness and jerking sooner than it would otherwise have developed. In addition, Dr. Fite gave his opinion that the plaintiff’s condition was due to an injury or shock which undoubtedly aggravated and may have been the absolute cause of the disease. We think there was sufficient evidence to sustain the finding.
While there is no complaint by either side with respect to instructions, it appears that the court instructed the jury that plaintiff could not recover for an aggravation of any disease he may have had prior to receiving the injury. The instruction was erroneous but was favorable to the defendant. (See Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, and the authorities cited in the opinion, including the following:
“ ‘The courts very generally hold that if an existing disease is aggravated by accident or injury, compensation must be paid for the resulting injury.’ [Note, L. R. A. 1917 D, 105; see, also, id. pp. 129, 130.]” p. 212.)
It was ruled in the syllabus of the Battelle case as follows:
“The evidence in an action under the compensation statute held to support a finding that the plaintiff was injured on the premises where he was employed, by having to wade through flood water which had overflowed the defendant’s car works; an old wound on his foot being thereby infected, requiring an amputation.” (¶ 3.)
In Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, it was said in the opinion:
“The defendant insists that the workman died of disease; that is, the injury did not arise out of the employment. The question was one of fact, and should have been submitted to the jury. It is not material that the workman’s blood vessels were weakened by disease, or that he was predisposed to hemorrhage because, for example, he had breathed the dust of the sacking department for three years. The statute establishes no standard of health for workmen, entitling them or their dependents to compensation, and if the added factor of physical exertion in the employment were required to effect the lesion, and did so, the injury arose out of the employment.” (p. 778.)
To the same effect, see Peoria Terminal Co. v. Indus. Board, 279 Ill. 352, where it was said in the opinion:
“Even where a workman dies from a preexisting disease, if the disease is aggravated or accelerated under certain circumstances which can be said to be accidental, his death results from injury by accident.” (p. 356.)
Also see Hart v. Hartford Faience Co., 90 Conn. 539, where it was held that—
“Whatever predisposing physical condition may exist, if the employment is the immediate occasion of the injury, it arises out of the employment because it develops within it.” (p. 543.)
It has been held that “if by weakening resistance or otherwise an accident so influences the progress of an existing dis ease as to cause death or disability” it is sufficient to justify an award under the workmen’s compensation act. (Mailman’s Case, 118 Me. 172.)
In Madden’s Case, 222 Mass. 487, a workman “with an already impaired heart suffered further injury therein through the muscular exertion” required by her work, and it was held that she could recover compensation not only for that part of the injury resulting directly from the work, but for that following directly from the previous defective condition of her heart.
Some cases are cited to the contrary in the defendant’s brief. Others cited -go no further than to hold that a disease which arises in the course of employment, with nothing more, is not within the act; that is, it must result from an injury; there must be an accident arising out of and in the course of the employment.
It is true that under our compensation laws a workman may not recover compensation for an incapacity resulting merely from a disease, although the disease developed in and was caused by the nature and conditions of his employment. It is only where he has sustained some accidental injury, arising out of and in the course of his employment, which aggravates a disease and thereby causes incapacity, that he may recover compensation. This distinction is recognized in the cases cited, supra, and in some of those cited in defendant’s brief.
It is probable that the erroneous instruction led to what seems an inconsistency in the findings. The jury had heard the conflicting opinions of the expert witnesses with respect to the possibility of this disease developing immediately after such an injury; they were instructed that the plaintiff could not recover for an aggravation of a disease he may have had prior to receiving his injury. In attempting to steer between the two theories they gave an affirmative answer to the question whether plaintiff’s injury did “precipitate or contribute” to the development of his present condition. To another question, “To what extent did such injury contribute to the develop-' ment of the plaintiff’s condition?” they answered, “Fully responsible.” The record is silent upon the matter, but presumably instruction No. 5, to the effect that plaintiff could not recover for an aggravation of a disease he may have had prior to his injury, was given at the request of the defendant. As we have seen, it was wrong, and moreover, prejudicial to plaintiff’s case. It can hardly be said in view of all the circumstances that there is any substantial inconsistency in the findings such, at least, as would warrant the ordering of another trial. The facts seem to have been quite fully developed. The character of plaintiff’s disease is conceded; the extent of his incapacity is not controverted, although the defendant, upon a mistaken theory, claims that it should not be held liable for compensation for total incapacity. The conflict in the evidence over the question whether the injury aggravated a latent disease of the plaintiff has been resolved against the defendant; and the finding that the injury was “fully responsible” for plaintiff’s present condition may be regarded as a correct statement of a legal principle properly applied in compensation cases, rather than a statement of a fact to be established by evidence.
We find nothing substantial in the complaint that defendant was prejudiced because the petition charged generally that the incapacity resulted from the injury and because the petition made no claim that the injury aggravated a preexisting disease. In the ordinary compensation case the issues are intended to be simple, and except for certain facts which the statute makes essential,'the pleadings are of little importance. Where the petition charges incapacity resulting from an accident, the employer may not unreasonably be expected to meet evidence showing that as a result of the accident a disease, from which the plaintiff already suffered, was aggravated, causing partial or total incapacity for work. Probably at the time the petition in this case was drawn, neither the plaintiff nor his attorneys knew of such a disease as multiple sclerosis.
We discover no error in the record and the judgment is affirmed.
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The opinion of the court-was delivered by
Burch, J.:
It has been brought to the attention of the court that the constitution and powers of the contest board provided by the primary-election law are still imperfectly understood, and in order to clarify the subject a little more the court will supplement its former opinion by the following observations.
When the state concluded to regulate the nomination of candidates for election it became apparent that various questions would likely arise touching claimed nominations, which would need speedy and final determination. To meet this need the contest board was created. Canvassing boards have certain ministerial functions to perform. (Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129; Capper v. Stotler, 88 Kan. 387, 128 Pac. 200.) Under the primary-election law those functions remain unchanged, and for any nonfeasance or misfeasance of those bodies, proper remedies exist. The contest board, however, is not a canvassing board at all. The state canvassing board for general elections is the state canvassing board for primary elections (Gen. Stat. 1915, §4187). That board is composed of the governor, the secretary of state, theauditor of state, the treasurer of state, and the attorney-general, or any three of them (Gen. Stat. 1915, § 4161). In this instance the contest board is composed of the secretary of state, the auditor, and the attorney-general (Gen. Stat. 1915, § 4204). If the state canvassing board or its members had been designated as the contest board, there would nevertheless be two separate tribunals, with different functions. Ordinarily, the officers constituting the contest board do perform the functions of the state canvassing board; but the contest board is a distinct and different body (Allen v. Burrow, 69 Kan. 812, 816, 77 Pac. 555).
The contest board is a quasi-judicial tribunal (Miller v. Clark, 62 Kan. 278, 62 Pac. 664; Allen v. Burrow, 69 Kan. 812, 77 Pac. 555). The statute clothes it with jurisdiction to pass on regularity of nomination papers. Besides that, the board is given power to consider and decide “other questions arising in relation thereto” (Gen. Stat. 1915, § 4204; Miller v. Clark, 62 Kan. 278, 62 Pac. 664). In the case just cited, the expression “other questions arising in relation thereto,” that is, in relation to nomination certificates and papers, was held to include the subject, Which one of two conventions was the authorized exponent of a political party for making a nomination for state senator? In Allen v. Burrow, supra, it was held that the contest board had jurisdiction, not only to pass on formalities relating to nomination certificates and papers, but also to decide between two certificates of nomination for congress coming from different conventions. In the case of Griffin v. Gesner, 78 Kan. 669, 97 Pac. 794, the petition presented to this court disclosed that the grounds for the proposed contest were that illegal votes had been cast for the candidate appearing to be successful on the face of the returns, and that legal votes for the opposing candidate had not been counted. It was contended that the contest board was not designed to try contests over the results of primary elections, but the court held otherwise.
In the section of the statute creating the contest board, no procedure is prescribed. Section 10 of chapter 54 of the Laws of 1908 made the general declaration that provisions of the election law should apply to primary elections, as far as consistency would permit, and then enumerated many subdivisions of the election law which were to govern primary elections. Among the enumerated subdivisions was article 6 of chapter 36 of the General Statutes of 1901 (Gen. Stat. 1915, ch. 33, art. 8), relating to contest of elections. In 1915 this hodgepodge section was superseded by the following:
“The provisions of existing statutes concerning elections, and any amendment now or hereafter made thereto, so far as the same are consistent with the provisions of this act, shall apply to the primary provided for in this act, the intent of this act being to place the primary under the regulations and protections in all respects of the laws in force as to the general elections. That all of the powers and duties conferred and imposed by the law of this state upon commissioners of election, registration officers, judges, and clerks of election, canvassing boards, and all other public officials, and all laws relating to the registration, qualification, challenging and voting of electors, in connection with general elections' are, in every detail and particular, conferred and imposed upon each and all of such officers in connection with primary elections conducted under the provisions of this act, except as herein otherwise specially provided.” (Gen. Stat. 1915, § 4183.)
Therefore, all pertinent provisions of the general-election law are portions of the primary-election law (The State, ex rel., v. Botkin, 98 Kan. 694, 158 Pac. 1119), including the article relating to contest of elections. While the contest board would take by implication those powers which are indispensable to accomplishment of the purposes of its creation, the quoted section invests it with all authority which the corresponding election-contest tribunal possesses, arid in the conduct of a contest the election-contest code should be adapted and followed.
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The opinion of the court was delivered by
Marshall, J.:
In an application for a rehearing it is urged that this court has not properly applied sections 365 and 366 of the code of civil procedure to the notice given by the plaintiffs requesting an inspection of the contract for the sale of real property from them to T. H. Moore. The entire notice, a portion of which was set out in the former opinion, reads:
“You are hereby notified that the undersigned, an attorney for the above named plaintiff (Stones) requests an inspection and copy of a letter written by W. T. Francis, dated St. Paul, Minn., March 1, 1917, to F. B. Morgan, president Jarbalo State Bank, Jarbalo, Kan., and in which letter was inclosed a deed of Harry Stone to T.. H. Moore for the land in controversy.
“You are also requested to present for inspection and copy a letter written by W. T. Francis, dated St. Paul, Minn., March 9, 1917, to F. B. Morgan, president Jarbalo State Bank, Jarbalo, Kan., referring to said deed, mentioned in the letter of March 1, stating that he had inclosed the same to be held until the $4,256.25 was paid by Mr. Moore.
“You are hereby notified that the undersigned, as attorney for the plaintiff, desires an inspection of the agreement between Harry Stone and Lottie Stone, dated January 24, 1917, for the sale of the real estate in controversy.
“This demand is made under section 7270 of the code of civil procedure of the Statutes of the state of Kansas for the year 1915.
“You are hereby notified to have in the court at the time or times of trials of this cause all and each of the above mentioned papers, so that the plaintiffs may have them to use in evidence if he so chooses.”
Section 365 of the code of civil procedure requires the party desiring an inspection and copy to make application to the court or judge for an order to permit him to inspect and to take a copy of the instrument, if the party on whom the notice is served refuses to comply with the request within four days after the notice is served. The plaintiff did not make such application.
Section 366 of the code of civil procedure reads:
“Either party or his attorney if required shall deliver to the other party or his attorney a copy of any deed, instrument or other writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. ' If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused. This section shall not apply to any paper a copy of which is filed with a pleading.” (Gen. Stat. 1915, § 7270.)
The notice stated that the demand was made under this section, hut the notice requested an inspection and not a copy of the agreement. Copies of certain letters, but not of the contract, were requested. The defendant was not in any way misled or misinformed by the notice. It knew exactly the in struments to which the notice referred. The defendant should have complied with the request. It must have deliberately-elected not to do so, and it ought to be bound by its election, and should take the consequences flowing therefrom.
Even if the defendant were right in this contention, when it received the letter of instructions directing the delivery of the deed on the payment of a definite sum of money, it should have complied with those instructions, and should have retained the deed until that sum of money was paid, or should have returned the deed to the plaintiffs. The failure of the bank to comply with the instructions given to it renders it liable. (Bank v. Wilson, 101 Kan. 72, 165 Pac. 859; Supply Co. v. Bank, 103 Kan. 654, 176 Pac. 129; Bank v. Bank, 106 Kan. 303, 187 Pac. 697.) It was not the business of the bank to construe the contract or adjust differences between the plaintiffs and T. H. Moore.
The former opinion is adhered to, and a rehearing is denied.
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The opinion of the court was delivered by'
Johnston, C. J.:
The Kansas Free Fair Association brought this action against the Georgia Casualty Company upon a policy of insurance issued by the latter, indemnifying the plaintiff against loss or damage that might occur as the result of automobile races at a fair held by plaintiff. Judgment in favor of the plaintiff was rendered, and from it defendant appeals.
During the races held by the plaintiff on September 17,1917, an automobile left the track, went through a fence, which struck and injured a boy named Alfred Scott. For this injury an action was brought by Scott against the fair association, and he recovered a judgment for $2,000 against the association, which upon review was affirmed in this court. Later the father of the injured boy recovered a judgment against the fair association for $987 expended by him in providing medical attention and treatment for his injured son. The casualty company elected to and did defend against these claims for the fair association. Shortly afterwards the fair association demanded that the casualty company pay and satisfy the judgments obtained by the Scotts, but the demand was refused, mainly on the ground that under the policy there was no liability against the casualty company for the loss until the judgment had been paid and satisfied by the assured. The fair association being without funds, it gave its promissory notes to the judgment creditors, and thereupon satisfaction of the judgment was entered. The notes were not paid, and suits were subsequently brought by the Scotts upon these notes against the fair association, and judgments in their favor were rendered, and subsequently these judgments were paid and satisfied. Before the rendition of the judgments on the notes and the entry of satisfaction of the judgments, the present action was brought by the fair association against the casualty company upon the theory that the giving of the notes and the satisfaction of the judgments rendered thereon matured a liability against that company. The casualty company still contended that it was not liable for the loss until the final judg ments for the damages against the assured had been paid in money. After this action was brought and after the judgments based upon the notes had been paid and satisfied by the fair association, the plaintiff upon leave amended its petition setting forth the payment in money of the judgments rendered upon the notes that had been given'in satisfaction of the judgments for damages against the fair association. Upon the testimony the trial court held that the plaintiff was entitled to recover, the indemnity provided for in the policy of insurance.
It is contended by the defendant that under the facts about which there is no substantial dispute, it is not liable upon its contract of insurance. The contract provided in substance that the casualty company should not be liable upon'the policy until after a final judgment had been rendered against the assured for the loss sustained and for which payment, in money had been made by the assured. Contracts of this character have been before the court and it has been held that a stipulation of the kind in question is valid and that a liability against the insurance company does not arise unless the loss sustained has been paid by the assured in satisfaction of a judgment rendered against the assured for the loss. (Carter v. Insurance Co., 76 Kan. 275, 91 Pac. 178.) In a later case and under a similar provision it was ruled that:
“Payment in money by a policyholder of his loss or expense, after trial of the issue, is a condition' precedent to action on his policy.” (Emerson v. Indemnity Association, 105 Kan. 242, syl. ¶ 2, 182 Pac. 647.)
It is contended by the defendant that the execution of the promissory notes by the plaintiff, and the acceptance of the same by the judgment creditors, was not a payment within the meaning of the contract. On the other hand, plaintiffs insist that payment in cash is not essential to a right of recovery, but that payment in property or in notes accepted in lieu of money is substantial compliance with the stipulation of the contract and is sufficient to enable the assured to recover against the insurer if payment is made in good faith and the judgment debt is actually extinguished. The following authorities are cited in support of its contention: Herbo-Phosa Co. v. Phila. Casualty Co., 34 R. I. 567; Kennedy v. Fidelity & Casualty Co., 100 Minn. 1; Stenbom v. Brown-Corliss Engine Co., 137 Wis. 564; Seattle & S. F. R. & Nav. Co. v. Maryland Cas. Co., 50 Wash. 44; Rodgers v. Pacific Coast Casualty Co., 33 Cal. App. 70; Taxicab Motor Co. v. Pacific Coast Cas. Co., 73 Wash. 631; Komula v. General Accident, F. & L. A. Corp., 165 Wis. 520; McBride v. Ætna Life Ins. Co., 126 Ark. 528; Gardner v. Cooper, 9 Kan. App. 587.
As supporting the contrary view, that a judgment cannot be satisfied except by the direct payment of money, the defendant cites: Eberlein v. Fidelity & Deposit Co., 164 Wis. 242; Curtis & Gartside Co. v. Ætna Life Ins. Co., 58 Okla. 470; Hebojoff v. Globe Indemnity Co., 35 Cal. App. 390; Treloar v. Keil & Hannon, 36 Cal. App. 159.
In the present case it is not necessary to determine whether the giving and acceptance of the notes can be regarded as a payment 'in money so as to render the defendant liable on the contract of indemnity, since it was shown under an amended and supplemental'pleading that the money had actually been paid in satisfaction of the judgments rendered upon the notes. Although payment of the loss was made indirectly through the medium of notes reduced to judgments and the payment of these in money, it amounted to a substantial compliance with the contract. It was immaterial to the defendant whether payment was made in currency or through the medium of checks, drafts, notes, judgments or other kind of obligations, so long as the medium employed was actually converted into money and paid on the judgments rendered for the loss. The fact that entries of satisfaction of the judgments for the loss were made prior to the conversion of the obligations into money, and the payment of the same to judgment creditors, is not a matter of concern to the defendant, so long as the judgment debts were actually discharged by the payment of money. The purpose of the provision is the protection of the defendant against fraud in the payment of losses. Here the claims for damages were contested in actions defended by the casualty company itself, and judgments were rendered about the good faith or validity of which there is no question. The losses have been actually paid by the insured and the judgments satisfied. The payment of the losses were not theoretical, but actual, and the plaintiff now seeks to reimburse itself for losses that were fixed by final judgments, which have been fully paid in money. The purpose of the contract provision has been accomplished by a substantial compliance with its terms.
Attention is also called to the provision requiring suits to be brought for the loss within ninety days from the date of the judgment and that a greater time had elapsed. Evidently the delay was occasioned by the litigation of which an account has been given. However, this limitation is not a bar to recovery by the plaintiff, as the code provides that—
“Any agreement for a different time for the commencement of actions from the times in this act provided shall be null and void as to such agreement.” (Gen. Stat. 1915, § 6907; Erickson v Commercial Travelers, 103 Kan. 831, 176 Pac. 989.)
It was brought within the period prescribed by the code, and that is sufficient.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
On April 9, 1920, Alexander Howat and three others were adjudged guilty of contempt in failing to obey an order of the district court requiring them to appear as witnesses before the court of industrial relations, in an investigation to be conducted by it relating to the conditions existing in the mining industry in Cherokee and Crawford counties. They were committed to jail until they should submit to be sworn and testify in such proceeding. They appeal.
The investigation originated in complaints of miners who were members of a labor union of which the defendants were officers. It was directed (among other subjects) to working conditions in the coal mines with reference to hours of labor, provisions for safety and sanitary conditions; miners’ incomes with relation to living costs; plans of mining as to continuity of production; conditions of the mines with reference to future supply, and the cost of production as compared with previous years; school and church privileges and general social surroundings ; and complaints of mine workers, or owners, and of the public. In response to the charge of contempt made against them, the defendants on April 8, 1920, filed in the district court an answer consisting of twenty-three paragraphs. The first twenty-one alleged that the act undertaking to create the court of industrial relations was void because in conflict with various provisions of the state and federal constitutions, and that therefore that body had no legal existence and the district court was without jurisdiction to enforce attendance upon it. The twenty-second paragraph denied the violation of any lawful order of the district court, and the twenty-third was a general denial. On June 26 the defendants filed in this court a motion, which was granted, for leave to withdraw all grounds of defense based upon the alleged violation of any constitutional rights. On July 2 the defendants asked that the order of allowance be vacated and that they be permitted to withdraw the motion, in order that their contentions as to the invalidity of the industrial-court act might be considered. Permission was given to present whatever constitutional questions might affect the disposition of the case, the court suggesting to counsel that the actual question involved appeared to be of a much narrower scope than might be indicated by some of the allegations of the answer. The defendants, on June 26, also asked a continuance of the cause from the date to which it had been assigned (July 6) on the ground that by reason of other engagements their attorneys had not had sufficient time for preparation, and that one of them could not be present on that date, which request was renewed when the case was called for hearing. The applications for a postponement were denied. The only question involved in the present proceeding is whether the defendants may be required to attend as witnesses before /the court of industrial relations — a question which involves no v difficult or complicated legal problems and to which an early answer should be given, since it involves no more than the right of a witness to refuse obedience to a subpoena. The defendants elected to submit the case on briefs without oral argument, being allowed until July 17 to prepare additional typewritten briefs if desired. On July 16 a brief was filed in their behalf, presenting a number of new propositions, introduced by the statement that the time for filing it had been limited to a brevity out of all proportion to the importance of the case. If the questions argued in the additional brief were required to be determined in this proceeding, ten days would indeed have been a very short time in which to prepare it, although it would appear to have been by the defendants’ own choice that the preparation was delayed until the case had been reached for hearing. Inasmuch as we regard it as unnecessary to pass at ^this time upon the more difficult propositions advanced, the time allowed is considered by us to be ample under the circumstances.
1. Most of the constitutional objections raised by the defendants are directed to provisions of the act creating the court of industrial relations the validity or invalidity of which can in our judgment have no possible bearing upon the disposition of the present case. The statute makes the new body the suc- / cessor of the public utilities commission, the functions of which are devolved upon it. (Laws 1920, Special Session, ch. 29, § 2.) It, therefore, has a legal existence unless that commission was a nullity, which is not suggested. The legislature has undertaken to grant it, among other additional powers, those “'of investigating certain controversies relating to the operation of various industries, including coal mining, and of taking evi- u dence and making findings thereon. (§ 7.) Its proceedings are required to be reported to the governor. (§ 27.) It is clear that it would be competent for the legislature to authorize an administrative tribunal to make such investigations, ^ findings, and reports, even if no further purpose were to be accomplished than to give publicity to existing conditions and provide data upon which subsequent legislation might be based. The act also undertakes to empower the court to make orders with reference to the conduct of the industry — among other ' things, to regulate wages. (§ 8.) Whether or not the legislature could confer all the powers so attempted to be given — for instance, that to which specific reference has just been made— we have no doubt whatever that it could invest the industrial' court with some of them. The legislature may of course enact statutes designed (for example) to protect the health and safety of miners, and may authorize an administrative body to make rules in that connection having the force of laws. (Richards v. Coal Co., 104 Kan. 330, 179 Pac. 380; 12 C. J. 847-853.) Regulations of that kind would be within the scope of the act under consideration. Inasmuch as the police power extends to the protection of the welfare and convenience, as well as the health, safety and morals of the public, it may manifestly be invoked — as in the present instance — to prevent the interruption in the production of a commodity so vitally necessary to the people of this state as coal, so long as the means employed are not for some special reason obnoxious to constitutional provisions. There is abundant field for the operation of the act under consideration even if every portion of it to which a specific objection has been urged were entirely eliminated.
2. It is quite clear that the part of the act relating to the conduct of an investigation could be upheld, although some of the attempted grants of power should be held void, even if the statute contained no reference to the effect of partial invalidity. However, one section of it reads as follows:
“If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision, and the act as a whole shall not be declared invalid by reason of the fact that one or more sections or provisions may be 'found to be invalid by any court.” (Laws 1920, Special Session, ch. 29, § 28.)
The rule is familiar that a part of a statute which is unobjectionable in itself may be enforced notwithstanding another part is adjudged unconstitutional, if it appears that the void portion was not an inducement to the enactment of the rest — that the legislature desired the unobjectionable part to become a law irrespective of the validity of the remainder. Here' the express declaration disposes of any possible doubt that might otherwise exist as to the legislative intent, and requires the court to give effect to all portions of the statute that do not in themselves violate some constitutional provision. (The State v. Wilson, 101 Kan. 789, 806, 168 Pac. 679.)
3. No reasons are suggested, and none occur to us, why the ^legislature may not authorize the court of industrial relations to conduct an inquiry into conditions existing in the mining field, and in furtherance of that inquiry require the attendance of witnesses. Much of the argument in behalf of the defendants is based upon objections to the provisions of the statute undertaking to restrain the conduct of employees in the mining industry and others classified with it. As already indicated, the validity of those provisions is not and could not be ^involved here. It is elementary that a statute can be attacked on constitutional grounds only by one whose right as guaranteed by the constitutional provision invoked is being assailed under color of the statute. The defendants in their character /■as witnesses whose attendance before the court is sought in order that they may give information concerning the subject of inquiry, have no standing to question the validity of any provisions of the statute other than those directly involved, for they could suffer no possible injury therefrom in this proceeding. The constitutionality of a statute is inquired into by a court no further than is necessary to a determination of the case before it. These familiar principles preclude any consideration at this time of most of the objections to the judgment upon constitutional grounds which the defendants first urged, then withdrew, and later renewed. Counsel for the state have shown a readiness to meet upon the merits the objections made to various provisions of the statute, but until these provisions are attacked by some one competent to question their validity — by some one whose rights in respect to the subject matter of the litigation are injuriously affected by them —any expression of opinion by the court would be dictum.
4. It is suggested that the evidence did not warrant a finding that the defendants had refused to testify. It was shown without contradiction that after they had been served with an order of the district court to appear forthwith before the court of -industrial relations to give their testimony, they were in another room of the building where that court was sitting, and told the sheriff, who came to them on account of an inquiry by the presiding judge, that they were having a little meeting of their own and would be through in about ten minutes; that they did not then appear, and at no time showed any disposition to obey the process; and that the defendant Howat said they wouldn’t come unless they were taken. Any defect that may exist in the way of formal proof on the subject is rendered entirely immaterial by the objections the defendants are still urging to the validity of the law and by the fact that, as already stated, they were committed only until such time as they should submit to be sworn and testify, so that they could at any moment have obtained their liberty by signifying their willingness to do so.
5. The occasion for the aid of the district court being invoked to require the attendance of witnesses before the court of industrial relations arises from the well-understood fact that the latter body, in spite of its name, is an administrative and not strictly a judicial tribunal, and is therefore regarded as incapable of enforcing its own process. (In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135; In re Huron, 58 Kan. 152, 48 Pac. 574.) The defendants argue that the district court under the statute is without authority to compel the attendance of a witness before any other tribunal than itself. The industrial court act, however, contains this provision:
“In case any person shall fail or refuse to obey any summons or subpoena issued by said court [of industrial relations] after due service then and in that event said court is hereby authorized and empowered to take proper proceedings in any court of competent jurisdiction to compel obedience to such summons or subpoena.” (Laws 1920, Special Session, ch. 29, § 11.)
We interpret this language as authorizing the procedure here followed — the issuance and service of an order by the district court requiring the defendants to appear before the court of industrial relations, and their commitment for contempt for refusing to obey that order. The district court, being one of general jurisdiction, is obviously a proper tribunal to which to apply for the needed aid, and the method pursued is one naturally adapted to the end sought. The constitutionality of- the provision quoted has not been challenged except by an objection relating to the title, which will be mentioned later. A similar feature of the federal law relating to the attendance of witnesses before the interstate commerce commission has been upheld against the contention that the action of a court in re-j quiring a witness to appear before an administrative body was nonjudicial. (Interstate Commerce Comm. v. Brimson, 154, U. S. 447, 155 U. S. 1.) The arguments upon both sides of that question are so fully set out in the opinions cited that further discussion is regarded as unnecessary. We hold the provision to be valid.
6. The defendants suggest that they are protected by the guaranty of the state constitution against a witness being required to incriminate himself (Bill of Rights, § 10), because they were among the persons named as interested in the controversy which was the basis of the investigation instituted by the industrial court. It cannot be said that any question that might be put to the defendants as witnesses would necessarily call for a reply tending to incriminate them. Until they had appeared and some question had been asked, there could be no basis for forming a judgment as to whether or not they were entitled to refuse to answer.
7. The point is sought to be made that the governor had no authority to call the special session of the legislature at which the industrial-court act was passed, because no extraordinary occasion therefore existed. The governor is the final judge of that question. (Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492.)
8. The title of the act under consideration reads:
“An Act creating the court of industrial relations, defining its powers and duties, and relating thereto, abolishing the public utilities commission, repealing all acts and parts of acts in conflict therewith, and providing penalties for the violation of this act.”
The contention is made that this is insufficient and the provision of the state constitution with reference thereto (Art. 2, § 16) is therefore violated, because the'title refers to a court, and the body undertaken to be created is not judicial in its character. The word court is often employed in statutes otherwise than in its strict technical sense, and is applied to various tribunals not judicial in their character. Instances may be found in Words and Phrases Judicially Defined, of which an illustration is Aldrich v. Aldrich, 49 Mass. 102, 106.
The provision of the act already quoted, authorizing the district court to aid in requiring the attendance of witnesses before the industrial court, is objected to as foreign to the title. The title includes the words — “An Act creating the court of industrial relations . . . and relating thereto.” The provision in question certainly has relation to the new tribunal and is pertinent to the subject expressed. Other objections are made on.the ground that the title is too restrictive. We think them not well taken, but as the provisions to which they relate could be disregarded without affecting the result of the present case, we deem it unnecessary to set them out.
The act (§2) undertakes to confer upon the court of industrial relations the powers previously vested in the public utilities commission, which it succeeds. It is argued that this method of legislating violates the provision of the section of the constitution already referred to, which forbids the revival or amendment of a law unless the new act contain the entire act revived or the section or sections amended. This provision, however, does not prevent legislation by reference (The State v. Shawnee County, 83 Kan. 199, 110 Pac. 92), and the objection is not sound.
It is contended that the act is void because executive, legislative and judicial functions are commingled in the grants of power to the court of industrial relations, within the authority of The State v. Johnson, 61 Kan. 803, 60 Pac. 1068. The opinion in that case was written while the principles controlling the place in government of administrative boards was in the process of development. It is possible that language may have been there used which might require some modification before its acceptance as having universal application. But the vital grounds upon which the statute there considered was held void do not exist here. The present law bears internal evidence of having been drawn with a view to avoiding the features of the court-of-visitation act, upon which the decision cited was based. The function of a tribunal of the general character of the court of industrial relations has become so fully recognized that we do not regard it as necessary to undertake a review of the subject at this time. (6 R. C. L. 179.)
9. It is urged that the following provisions of the act are invalid for the reasons indicated:
That authorizing proceedings in the supreme court to enforce compliance with the orders of the court of industrial relations, in which new evidence may be admitted (§ 12), because this amounts to an attempt to enlarge the original jurisdiction of the former body.
That authorizing the supreme court to compel the court of industrial relations under certain circumstances to enter just, reasonable and lawful orders (§ 12), because this undertakes to confer legislative power on the supreme court;
That authorizing the court of industrial relations to modify the terms of contracts of employment which are found to be unfair, unjust, or unreasonable (§9), because it violates the 14th amendment to the federal constitution;
That forbidding the discharge of an employee because of his testifying before the court of industrial relations, or bringing to its attention any matter of controversy between employers and employees (§15), for the same reason;
That requiring employers to keep a record of wages paid (§23), for the same reason;
That forbidding employees to conspire to quit their employment for the purpose of interfering with the operation of the industry (§17), for the same reason;
That forbidding a conspiracy to do injury to others by picketing on account of anything done by the court of industrial relations, or under its orders, or of its aid having been invoked (§ 15), because it involves a denial of free speech.
We think it obvious that none of these matters are involved in the present case.
10. Finally, it is contended that the act is void as an attempt to interfere in matters of purely federal jurisdiction — that the national government has so fully occupied the ground attempted to be covered by the industrial-court law that there is no field left in which the latter may operate. The agencies which the defendants regard as bringing about this result are:
The entrance into an interstate contract between the inter national officers of the United Mine Workers of America and the representatives of the Coal Operators’ Association of the United States at the conclusion of the coal strike a little over six months ago;
The appointment by the president of a commission to hear and determine matters of hours, wages and conditions in the mining industry in the United States;
The Clayton act (Part 1, 38 U. S. Stat. at Large, 730), relating to unlawful restraints and monopolies in interstate commerce, particularly the portion thereof (§20) which forbids federal courts to grant injunctions against certain conduct of employees, of which ceasing to perform work is an illustration, and which declares that such conduct shall not be held to be violative of any law of the United States;
The Lever act (Part 1, 40 U. S. Stat. at Large, 276), providing for governmental control of the production and distribution of food and fuel until the termination of the war.
It is quite possible that the scope of the authority of the court of industrial relations may be limited in some respects by these agencies — that a particular order made by that body might be found to be ineffective, for instance, because in conflict with some lawful order of a federal officer or body, or because constituting an undue interference with interstate commerce. We think it too clear to require elaboration that whatever restrictions may be thus placed on local action, it cannot be true that the state has no power to conduct investigations along at least some of the lines indicated and to attempt the remedy of certain classes of abuses that may be found to exist. The suggestion is made that the court should take judicial notice of an injunction granted against the defendant Howat by a federal court, and of a number of matters in connection therewith, and that the judgment, of the district court in the present case should be reversed by reason thereof. We are unable to discover that anything in the facts recited either disqualifies the defendants as witnesses or gives them any immunity from testifying. It would be utterly futile in a proceeding the sole purpose of which is to require obedience to a subpoena, to undertake to determine in detail the effect and validity of the various provisions of the statute attacked — to attempt to indicate in advance as an abstract matter what decision will be made when an actual controversy shall arise in which the rights of the parties depend upon the soundness of the graver propositions of law that have been advanced by the defendants. '
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff was injured on November 11, 1917, while patronizing a theatre operated by the defendant as a paid guest. On November 7, 1919, she recovered judgment in the sum of $4,000 for damages caused by the injury. The defendant appeals.
1. The principal complaint is that the defendant was not permitted to properly cross-examine William L. Harmon, husband of the plaintiff and a witness for her. He testified in substance as follows:
“Q. Well, has she performed her household duties? A. She has not.
“Q. Subsequent to this injury has she done her work? A. No, sir.
“Q. What — state what you observed, if anything-, unusual or out of the ordinary, about her actions around in the preparation of meals and serving of them and so forth. A. Well, in her cooking and washing dishes she drops things more or less every day, such as skillets or dish— take a dish in her hand, in her left hand, she will drop it.
“Q. What is the most recent example of that, that you recall? A. Well, just a few days ago she called me to get up and eat some breakfast, and I got up and sat down at the table, and she got some coffee, tried to pour me some coffee, and she spilled coffee on my shoulder . and down my side. That is about eight days ago, as well as I can remember, eight or ten days ago, something like that.
“Q. Now, Mr. Harmon, over what period of time has your wife performed her usual, regular household, duties since she was hurt? A. Well, my wife does not do all of her household duties; I help her all the time.
“Q. Now then, how long preceding this time, now, has she been doing a part of her household work there? A. Well, ,1 could not just exactly say just exactly how long it has been.
“Q. Well, give us your best judgment as to whether it has been a month or six months or a year, or if she has always done it, just so the jury can get an idea here. A. No, sir; she has not always done it; it is just right here of lately she has been, well, I will say for the last four months that she has been helping me around fixing meals, such as turn over meat and put coffee in the coffee pot, something like that, set the table.
“Q. Who has been doing your washing and laundry work and such as that? A. My wife’s daughter.
“Q. Prior to the injury that she received, who did it? A. She did it herself.
“Q. Now, prior to that hadn’t she been doing work around the house? A. Well, she done some, and then she got so she could not do very much.
“Q. She did some work around there, didn’t she, cooked meals and washed dishes and wiped dishes and things like that, didn’t she? A. Never washed very many dishes, because she broke all them.”
After Harmon had thus testified and had been cross-examined, he was recalled for further cross-examination. Several questions were then asked him, to each of which an objection was sustained. We quote from the defendant’s abstract :
“The defendant offers and asks to recall the witness William Harmon for the purpose of asking him on cross-examination whether or not on June 13, 1919, he filed a petition for divorce in cause number 11448, in the District Court of Wyandotte County, Kansas, duly verified by his own affidavit and sworn to on June 11, 1919, before Catherine M. Hanson, a notary public of Jackson County, Missouri, in which petition he states that on the 28th day of April, 1912, in the City of Kansas City, County of Jackson, and State of Missouri, he was lawfully married to the defendant, that the plaintiff continued to live with the defendant as her husband from and after the day and year aforesaid until on or about the first day of December, 1918; that during all that time plaintiff faithfully demeaned himself and discharged all his duties as the husband of the defendant and at all times treated her with kindness and affection; that the defendant wholly disregarding her duties as the wife of the plaintiff, did fail and neglect to perform those duties incumbent upon the marital relation by being faithful, affectionate and dutiful wife, and did on numerous occasions fail and neglect to prepare plaintiff’s meals; that plaintiff was compelled to go to his work without breakfast, and on numerous occasions would return to his home and find the defendant absent and his meals unprepared. The defendant further offers or asks permission to ask the witness the question as to whether or not he verified this petition containing the following: Plaintiff states that said defendant would not stay at home, but rather would stay away from home and on many occasions would not return until very late at night, that she failed and neglected to inform the plaintiff of her whereabouts on such occasions, and that the defendant seemed to enjoy the companionship of others in preference to the plaintiff; that defendant was of an extremely quarrelsome and nagging disposition, and on one occasion without cause or provocation caused plaintiff to be arrested by the civil authorities of Kansas City, Kansas, and that the charge against this plaintiff was dismissed.’ ‘That defendant has repeatedly told plaintiff that she did not care for him, but did care for some other man who is possessed of more money than the plaintiff; that defendant has on a number of occasions accused plaintiff falsely and unjustly of infidelity.’ We ask to ask those questions, and we wish to show to the court that we had no knowledge of the existence of the petition when the plaintiff left the stand, and that our attention was called to these facts since the plaintiff left the stand as a witness on the trial of this case.
“To which the plaintiff objects for the reason that it is incompetent, irrelevant and immaterial, not proper cross examination, and it does not contradict or tend to contradict any statements previously made by the plaintiff.
“Objection sustained.”
The offered cross-examination did not concern the conduct and actions of the plaintiff; it concerned the allegations of the petition that had been filed by the witness for a divorce from the plaintiff. The petition contained allegations that were inconsistent with the testimony of the witness. The fact that he filed a petition for a divorce with allegations therein as set out in the offer of the defendant was inconsistent with his testimony on the trial of the present action. It is well established that a party to an action has a right to cross-examine a witness concerning inconsistent or contradictory statements made by him on another occasion. (S. K. Rly. Co. v. Michaels, 49 Kan. 388, 395, 30 Pac. 408; The State v. King, 102 Kan. 155, 157, 169 Pac. 557; 40 Cyc. 2687, 2714.) It was error no.t to permit the requested cross-examination of the witness.
2. Was that error material? The defendant complains of the amount of the verdict. The principal witness concerning the extent of the disability of the plaintiff, other than herself, was William L. Harmon. If cross-examination of him concerning the allegations of his petition had been permitted, it might have resulted in a modification of his testimony concerning the disability of his wife. At any rate such cross-examination would have shown the inconsistency between the allegations of his petition for a divorce and his testimony in the present action, and an opportunity would have been presented to question, on the argument to the jury, the truthfulness of his testimony on the trial, and a verdict for the defendant or for a smaller amount might have been returned. It therefore must be concluded that it was material error to refuse to permit the cross-examination requested.
The judgment is reversed, and a new trial is directed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff asks for a writ of mandamus directing the recently appointed judge of the fifteenth judicial district to hear, consider and determine on its merits the plaintiff’s motion for a new trial in a case which was tried prior to defendant’s appointment.
During the year 1919, the regular district judge, Hon. R. M. Pickier, who had presided for many years in that district (Smith and other counties), suffered from inpaired health, and some time late in that year, Charles L. Kagey, Esquire, a Beloit lawyer, was elected judge pro tempore in Smith county. Some time in December, a case entitled L. A. Golden v. C. P. Curtis came on for trial before Kagey as judge pro tem. On December 31, 1919, the jury returned a verdict for Curtis. Meantime, Judge Pickier had sent his resignation as district judge to. the governor, and on January 1, 1920, the governor appointed the present defendant, Honorable W. R. Mitchell, as Judge Pickier’s successor, and Judge Mitchell took the oath of office and qualified the same day.
Within due time Golden filed his motion for a new trial, and when court convened in Smith county on January 5, 1920, the new judge failed to appear on account of sickness; and under supervision of the clerk of the court, the members of the bar set about the selection of a judge pro tem. About the same time, C. L. Kagey, who had served as judge pro tem. for Judge Pickier, took the bench and assumed to hold court, to which assumption Golden’s attorneys promptly and vigorously objected. They also informed Kagey that an application had been filed with the clerk requesting the election of a judge pro tem. to act in the absence of Judge Mitchell.
To justify his continued exercise of judicial functions, Kagey said:
“The court will say that it was his intention to adjourn court sine die on December 31st, 1919, but on the afternoon of said day Honorable W. R. Mitchell, the duly appointed judge of this district, called the judge pro tem. on the telephone and stated to him that it was his desire that the judge pro tem. should not adjourn court, sine die, but should adjourn it subject to call, as he, the district judge, appointed, was unable on account of physical disability to go to Smith Center to hold court, and said district judge requested the judge pro tem. as a favor to him, to hold court one day this week if possible, for the purpose of hearing and determining any motions for new trials or other unfinished matters, and although such an arrangement was inconvenient for the judge pro tem., he consented to do so, and on the evening of December 31st, 1919, he adjourned the district court of Smith county, Kansas, subject to call, and informed all of the attorneys interested that court would probably sit the following Monday, that is on January 5th, 1920, for the purpose of closing up all unfinished business.”
As counsel for Golden persisted in their objection to Kagey’s exercise of judicial powers and insisted on the selection of a judge pro tem. as a substitute for Judge Mitchell, Kagey caused a record to be made that the motion for a new trial in Golden v. Curtis was overruled “for want of prosecution.”
Counsel for Golden:
“We ask that the record show that it wasn’t for want of prosecution, but because the question was raised as to the jurisdiction of the court, and that the attorneys refused to present the motions on account of such authority being questioned.”
Thereupon the following dialogue occurred:
“C. L. Kagey: The record will show, Mr. Mahin, that the court requested you to take up these motions and that you refused to do so, and the court thereupon proceeded to overrule them.
“W. E. Mahin: We wish the record to show the truth.
“C. L. Kagey: The record shows the truth.
“C. L. Kagey: There being no other business, the court thereupon adjourned sine die.”
By the time these incidents had transpired, a member of the local bar had been elected judge pro tem.; and he took the bench, and continued for thirty days the motion for a new trial in Golden v. Curtis, and made some further orders not here pertinent.
On February 6, 1920, upon notice to Curtis, Golden presented to Judge W. R. Mitchell, at chambers, his motion for a new trial. Judge Mitchell declined to hear the motion, declined to consider it, and declined to rule on it, on the ground that “he considered himself without jurisdiction in the premises one way or the other.”
Hence this lawsuit.
An alternative writ being issued by this court, the defendant moves that it be quashed—
“For the reason that all of the alleged grievances contained in the motion for said alternative writ and the writ itself, shows: That each and all of said orders and matters and that order made by the judge at chambers on the 6th day of February, 1920, are orders that in their nature are final and for which the remedy, if any, is by appeal.”
This motion to quash the writ must be denied. Mr. Kagey ■ was selected judge pro tern, as a substitute for Judge R. M. Pickier. When Judge Pickier resigned and the governor had accepted his resignation and had appointed Mitchell as his successor, and when the latter had been sworn in as the new district judge, Kagey’s pro tempore judgeship expired. He was a substitute for Judge Pickier. (Keys v. Keys, 83 Kan. 92, 95, 109 Pac. 985.) When Judge Pickier retired from office, there could be no official substitute for him, and no excuse for a substitute. (Cox v. The State, ex rel., 30 Kan. 202, 2 Pac. 155; 23 Cyc. 506.) The new judge was in full charge of the judicial business of the district court of Smith county. If the new judge found it inconvenient or impossible to be present to discharge his judicial functions, the matter of a judge pro tempore might have been arranged by agreement of counsel (The State v. Keehn, 85 Kan. 765, 118 Pac. 851; Bank v. Courter, 97 Kan. 178, 183, 155 Pac. 27), or by formal compliance with the provisions of law for the selection of a judge pro tempore.
It hardly needs to be declared that the telephone conversation between Judge Mitchell and C. L. Kagey conferred no judicial powers on the latter, A judge is not one of those fortunate public officials who can deputize another person to perform his official duties for him. (In re Millington, Petitioner, etc., 24 Kan. 214, 224.) Sometimes his judicial burdens may be lightened by agreement of counsel that another lawyer or judge may sit for him, sometimes by the selection of a judge pro tempore in accordance with the statutes, and sometimes by reference of certain matters to a referee, all of which must also be done in conformity with the statute. But aside from such exceptions, a judge’s powers and duties cannot be delegated. (Throop on Public Officers, §§ 569, 570.)
If an occupant of a judicial office, as in other cases, be permitted to occupy such office for some considerable time, without serious question, such occupant of the judicial office may become a de facto judge (23 Cyc. 619) until the state or some person having a lawful right t.o the office sees fit to challenge his authority. That is not out of any regard for the usurping occupant, but for the protection of the public who deal with him as a lawful functionary. (Throop on Public Officers, §§ 622-628; Mechem’s Public Offices and Officers, §§ 315-321.) But where the illegal assumption of official powers is promptly challenged, .as was done by Golden, the rule as to de facto officers does not apply.
Next, as to plaintiff’s right to redress by mandamus: It is usually the case that an erroneous ruling of a trial court or judge can be adequately redressed and corrected by appeal; but in a case like this, where the aggrieved party cannot have an unrestricted appeal, as the statute permits, until he has sincerely urged his motion for a new trial before a lawful trial court or judge, and until a lawful and binding ruling has been obtained thereon, there seems to be no other adequate redress than that accorded by mandamus. In the Bleakley case, where the trial court had refused to act on a motion for a new trial, as a sort of disciplinary measure against Mrs. Bleakley for taking and keeping her “incubator” baby outside the trial court’s jurisdiction, this court held that it was “the duty of the court below to rule upon the motion for a new trial by either granting or denying it.” (Bleakley v. Smart, 74 Kan. 476, 486, 87 Pac. 76.)
(See, also, Munkers v. Watson, Judge, etc., 9 Kan. 668; Duffitt & Ransey v. Crozier, Judge, 30 Kan. 150, 1 Pac. 69; The State, ex rel., v. Webb, Judge, 34 Kan. 710, 9 Pac. 770; Bird v. Gilbert, 40 Kan. 469, 19 Pac. 924; City of Emporia v. Randolph, 56 Kan. 117, 42 Pac. 376; Note, 4 A. L. R. 582.)
While a failure to procure a ruling on a motion for a new trial is not altogether fatal, it does greatly restrict the scope of the appellate review. (Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922; Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645.)
The action of Kagey was void; the plaintiff is entitled to have full judicial consideration of his motion for a new trial and to a ruling thereon. It follows that the writ of mandamus should be allowed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs recovered judgment for the remainder of the purchase price of hay, and the defendants appeal. In their brief they say that they “present but one matter to this court for review, to wit: A construction of the contract sued on in this case concerning the ownership of the 66.44 tons of hay at the time same was destroyed by fire.” The contract referred to read:
“Know All Men by These Presents, That Tuttle Bros, have heretofore sold to Woodson County Grain Co., 225 tons of baled prairie hay stored in barn in three Tuttle barns and in Sellars and Mays’ barn in Woodson county, Kansas, for the agreed price of $17.00 per ton on board of cars either Rose, Buffalo or Chanute, Kansas, and whereas, they have moved about ten tons on cars and about forty-four tons and stored same at Rose, Kansas. Said Grain Company to pay for barn rent. It is now further agreed that said Tuttle Bros, shall move now about sixty-four tons more to Rose, Kansas, and all the other hay to be loaded on cars as soon as cars can be procured, and load the' hay stored at Rose on cars as soon as cars can be obtained and the said Woodson County Grain Company shall pay in addition to the $500.00 heretofore paid on said hay the additional sum of $500.00 this day, and $500.00 more to be paid when the 100 tons are stored at Rose. The balance of the pay is to be paid on delivery on cars, less the proportional sum heretofore paid on the entire 225 tons. Said Woodson County Grain Company to furnish all cars for shipment. Insurance to be paid for by Woodson County .Grain Company on hay stored at Rose and Tuttle Brothers on the other hay.”
No transcript of the evidence was made by the stenographer, but a statement of the evidence and proceedings in the case has been made and filed by the trial court under section 582 of the code of civil procedure (Gen. Stat. 1915, § 7486). That statement contains the following:
“From the pleadings in the cause and under all the evidence introduced upon the trial thereof the following facts are clearly shown, indeed, may be regarded as admitted by the parties, to wit:
“1st. The execution of the contract set out as Exhibit ‘A’ attached to plaintiffs’ petition.
“2nd. That all hay actually delivered upon cars at Rose, Woodson county, Kansas, has been fully paid for by defendants, pursuant to contract referred to.
“3rd. That plaintiffs, at the request and by direction of defendants stored a portion of hay purchased under the terms of contract in hay barn at Rose, Kansas, the defendants to pay the rental for use of said barn for the storing of such hay therein.
“4th. That defendants should pay the insurance upon the' hay so stored in said barn at Rose, Kansas.
“5th. That on the- day of January, 1918, the said hay barn at
Rose, Kansas, was struck by lightning and said barn and contents were wholly destroyed by fire, among which contents were 66.44 tons of hay sold and delivered by plaintiffs to defendants and placed in said hay barn under the terms of contract hereinbefore set out at length.
“6th. That under contract the agreed price for hay was seventeen dollars per ton, payable ‘on delivery on cars’ the defendant to furnish all cars for shipment.
“7th. That no part of the value of the 66.44 tons of hay destroyed by fire, has been paid to plaintiffs by the defendants, or by any person for or on their behalf.
“8th. That the plaintiffs at all times subsequent to the storing of hay in the hay barn at Rose, Woodson county, Kansas, aforesáid and before its destruction by fire were not only willing but anxious to load same on cars at Rose, Kansas, upon the defendants’ procuring cars for shipment.”
The court concluded that the defendants were liable for the hay that had been burned.
The defendants argue that nothing is involved in this appeal but an interpretation of the contract for the purpose of ascertaining who was the owner of the hay at the time it was burned. The evidence should be considered, but it is not before the court. In the place of the evidence must be considered one of the things that the trial court says was clearly shown thereby; that is, that the hay had been sold and delivered by the plaintiffs to the defendants and placed in the barn under the terms of the contract. After reciting the statement of what was shown by the evidence, a discussion of the refinements of law involved in the final transfer of property sold becomes unnecessary. If the hay had been delivered, it was the property of the defendants, and they must bear the loss. A large part of the purchase price for the hay had been paid before it was burned. If the hay had not been burned, and the plaintiffs had refused to load it on the cars, the defendants could have loaded it and could have deducted the cost of loading it from the balance of the purchase price to be paid. The remainder of the purchase price was to have been paid when the hay was placed on cars. The contract fixed the time for the payment of the balance of the purchase price at the time when the hay should be placed on board the cars, and did not fix that as the time when the hay should become the property of the defendant. The plaintiffs did not put the hay on the cars; to have done so would have cost them something. That, they should not collect. What it would have cost the plaintiffs to -put the hay that was burned on the cars should be deducted from the amount of the judgment. The cause is remanded with instructions to ascertain that amount and deduct it from the judgment. Other .than this, it does not appear that the conclusion reached by the court was incorrect.
With this modification, the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment overruling its demurrer to the answer of defendant L. A. Mergen, filed against the petition of the plaintiff in an action by it against the Continental Trust Company, W. B. Middlekauff and L. A. Mergen, to recover on a promissory note as follows:
“Six months after date, for value received, we promise to pay to the order of The Solomon National Bank, Solomon, Kansas, Three Thousand Two Hundred Seventy-two and n°/ioo' Dollars with interest at the rate of 8 per cent, per annum from date at The Solomon National Bank of Solomon, Kansas, Beloit, Kansas. Interest payable annually, and if not paid annually, each installment thereof when due, shall be added to and become part of the principal, and both shall thenceforth draw ten per cent, interest, and it is agreed that all signers and endorsers of this note either as principal or security, waive demand, protest, notice of protest and nonpayment. The Salina Trust Company,
“W. B. Middlekauff, L. A. Mergen, Treas."
Mergen’s answer alleged that—
“The promissory note sued upon in this action was, and is the corporate note of the defendant, The Continental Trust Company, as the successor of the maker thereof, to wit: The Salina Trust Company, a corporation duly organized and existing under the laws of the state .of Kansas. That at the time of the execution and delivery of said promissory note this answering defendant was the treasurer of such corporation, and plaintiff knew, at the time of the taking of said note by it,, that this defendant was the treasurer of said corporation, and that this answering defendant had executed and delivered said note for and on behalf of said corporation, and as the obligation of said The Salina Trust Company, and that as such officer he was duly authorized to execute said note as the obligation of said The Salina Trust Company. That plaintiff accepted said note as the note of said corporation, The Salina Trust Company, and at the time of its acceptance knew and had knowledge of the fact that this answering defendant executed the same as and for the note and obligation of said corporation, and not as the personal obligation of this answering defendant. That plaintiff accepted said note and paid the consideration therefor with full knowledge and understanding of such facts and of other facts sufficient to put him upon notice that this defendant was merely executing said note upon behalf of said corporation, The Salina Trust Company, and that this answering defendant was, and is not identified or personally liable upon said promissory note as a joint maker or endorser thereof.”
An examination of section 6547 of the General Statutes of 1915, section 27 of the negotiable-instruments law, is necessary. That section reads:
“Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.”
The name of the corporation mentioned in the answer is signed to the note. It appears that L. A. Mergen signed as treasurer. One and probably the best construction of the signature is that L. A. Mergen signed as treasurer of the Salina Trust Company, although another construction may be that he signed individually and added the expression “Treas.” as descriptive of himself. The statute says that Mergen is not liable if he was duly authorized to sign the note for the trust company and signed in the representative capacity. The' answer alleges that he was so authorized and did so sign.
That the note is the note of the Salina Trust Company and not the note of L. A. Mergen personally is supported by an extended discussion and citation of authorities in Brannan’s Negotiable Instruments Law, 3d ed., pp. 69-78.
The section of the uniform negotiable-instruments law now under consideration has been construed and applied in a number of cases from other states, where the obligations of the signers to .promissory notes were ambiguous, and where it was held that parol evidence is admissible to show the intention of the parties to a note. (Belmont Dairy Co. v. Thrasher, 124 Md. 320; Phelps v. Weber, 84 N. J. L. 630; Megowan v. Peterson, 173 N. Y. 1; Germania Nat. Bank v. Mariner, 129 Wis. 544; American Trust Co. v. Canevin, 184 Fed. 657.)
In Phelps v. Weber, supra, it was held that this section of the negotiablé-instruments law “does not alter the common-law rule” concerning the admissibility of parol evidence to explain ambiguous signatures on a promissory note.
In Grocer Co. v. Lackman, 75 Kan. 34, 88 Pac. 527, this court said:
“It has been held in this state that where it is uncertain from the face of the note whether it was intended to be the note of the corporation or of the individual signing, or both, if the litigation arises between the original parties evidence may be introduced to explain the ambiguity.” (p. 35. See, also, Kline v. Bank of Tescott, 50 Kan. 91, 31 Pac. 688; Benham v Smith, 53 Kan. 495, 36 Pac. 997.)
In Grocer Co. v. Lackman it was further said:
“Upon the question whether a note signed as above is the obligation of the corporation or of the individual signers the cases are so conflicting that it would be useless to attempt to reconcile them.” (p. 36.)
If there is any ambiguity in the signature of defendant Mergen that ambiguity can be explained by oral evidence under the authorities cited. His answer undertakes to and does explain whatever ambiguity there may be in his signature.
The defendant cites Lonnon v. Batchman, 103 Kan. 266, 173 Pac. 415, where a note which did not disclose any principal was signed by five persons, whose names were followed by the words in a brace, “Members Board of Directors Sunflower Lead & Zinc Co.”; and it was held that it was error to receive evidence to show that the intention was to sign the note for the corporation and not for themselves as individuals. The decision in that case was based on section 6590 of the General Statutes of 1915, which reads:
“A person placing- his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”
It was there stated that—
“In the present case we have merely the note itself, and it is not signed by the president and secretary of the corporation, nor in the way in which notes are usually executed by corporations.' On the contrary, it is signed by a number of individuals who describe themselves as members of the board of directors of a certain corporation. They do not sign as the board, nor even as constituting all the members of the board which might have consisted of more members than those who signed the note. The words ‘Members Board of Directors Sunflower Lead & Zinc Co.,’ amount to nothing more than a description of the individuals who executed the instrument.” (p. 268.)
There is an apparent contradiction between Lonnon v. Batchman and the prior decisions of this court, but the contradiction is apparent only, not real. In the Batchman case the Sunflower Lead & Zinc Company does not appear to be liable, and it does not appear that any attempt was made to render it liable or to sign the name of the corporation to the note. In the present case the name of the corporation is signed to the note and that of defendant Mergen appears as treasurer. That takes this action out of the rule declared in Lonnon v. Batchman, 103 Kan. 266, 173 Pac. 415, and puts it under the rule declared in Grocer Co. v. Lackman, 75 Kan. 34, 88 Pac. 527, and the other decisions of this court that support that rule.
The defendant, Mergen, can plead and prove that he is not individually liable on the note and that the note is the obligation of the Salina Trust Company. This court is compelled to say that the answer to the plaintiff’s petition stated a defense, and that the plaintiff’s demurrer to the answer was properly overruled.
The judgment is affirmed.
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The opinion of the. court was delivered by
Dawson, J.:
This was an action against a contractor for damages occasioned by a falling wall which, it was alleged, the contractor had agreed to protect. The defendant had been awarded a contract to erect a new building next to the wall in question; and plaintiffs alleged that one of the conditions under which he was awarded the contract was an independent oral -agreement that he should protect and save the wall. The defendant denied the making of this agreement. In the contract .for the new building the only reference to the wall provided:
“If old stone wall on south requires underpinning when basement [of new building] is dug, this will be an extra paid by owners, time and -material.”
The plaintiffs’ testimony was amply sufficient to support .their claim that defendant had agreed to protect and save the wall. They testified that prior, to and about the time of the letting of the contract for the new building they had repeatedly mentioned the matter to defendant and had -explained to him that he, or whoever should get the job for the new building, would have to protect and save the old stone wall of their adjacent building, and that defendant agreed to that, and assured them that he could and would protect and save the wall.
On the other hand, defendant testified that he had never made any such agreement; that this matter never was the subject of negotiations between them; but that the architect who drew the plans for the new building brought, up the subject of the old wall on the day the contract was awarded; and that at that time no one knew the character or depth of the foundation of the old wall, and so it was then agreed that if the old stone wall had to be underpinned, that such item, for work and material, would be an extra.
The stone wall which fell was two stories in height. It formed the north wall of a building otherwise made of lumber. This building faced the west. Its ground floor had been occupied theretofore as a restaurant, and its second story as a residence. Next to it, on the north, there had been two old mercantile buildings which plaintiffs removed to make space for their new building. The merchandise from these removed buildings was stored in the building on the south, and much of it, weighing several thousand pounds, was stored on the second floor. The joists of this building, upstairs and down, were 2x8’s, laid twenty-four inches on'centers, having an unsupported span of twenty-two feet. Near the stone wall, on the north, was a basement which had pertained to one of the build ings which had been removed to make room for the new structure. This basement was walled, and it served as a retaining wall for the foundation of the wall which collapsed, but this basement did not extend the entire length of the stone wall in controversy. It was shown that the stone wall was weak and shaky in times of high winds, and especially so since the removal of the old buildings to the north of it. A day or two before the wall fell, it was seen to be “puffing out about the middle east and west and about the middle up and down.” The eaves trough of the old building next to the wall, which had been removed, was clogged and defective, and rain water from that building had disintegrated the lime in the stone wall and had rendered sodden its foundation. The wall fell on March 29. The weather was ordinarily freezing at that season, and it was usually about the middle of the afternoon ere it thawed — just about which time the wall collapsed. It was also shown that after some of the excavation work was done, the defendant talked with one of the plaintiffs about his proposed method of underpinning the wall, and the latter approved of that method. Accordingly, defendant, who had left a bank of earth two or three feet wide at the top and five or six feet wide at the base, next to the stone wall, set laborers at work digging two holes in the bank, at the east end of the stone wall, beyond where the old basement extended, the purpose being to build stone and cement pillars to uphold that part of the wall. While the workmen were so engaged the wall bulged out in its center at a considerable distance from where the workmen were digging, and then the whole mass collapsed, carrying down the whole structure, precipitating the merchandise into the old basement, and also damaging the next building to the south, which was partially attached to the fallen building.
We have set out the foregoing to develop the main features of the evidence — to show plaintiffs’ contention that defendant had agreed to protect and save the wall; and defendant’s contention that he did not so agree, but that the wall fell from its own weakness and its overloading with merchandise, and that what defendant was doing at the time and what he had theretofore done had nothing to do with the collapse of the wall.
The general verdict and certain special findings of the jury were in defendant’s favor:
“1. Did the plaintiffs and the defendant Anton Jacobs prior to the ■letting of the written building contract or before the falling of the building in question enter into a verbal contract by the terms of which Anton Jacobs agreed to protect the wall of the stone building1 on the south, to Underpin the same, and to use such means by underpinning or otherwise as were necessary to keep said stone wall from falling into the excavation or cellar on the north? Answer: No.
“14. How much do you allow the defendant for work and material under his contract? Answer: $784.51.”
Judgment was rendered accordingly, and plaintiffs appeal.
Plaintiffs first complain of the enlargement of the issues, but we do not discern that they went beyond the rather extensive recitals of facts set up in the pleadings.
- A model of the stone building was introduced, over plaintiffs’ objection, to show that the building had collapsed by reason of its inherent weakness and its overloading with merchandise, which would tend to bend and spring the joists and push the wall outward. This was competent for what it was worth to prove that the wall fell from obvious causes with which defendant’s alleged negligence had nothing to do. While it is true that plaintiffs’ theory of a right to recover was eventually narrowed to the question of a specific oral contract to protect and save the wall, the issue was not originally so clearly defined in the trial below. Plaintiffs had alleged:
“The defendant carelessly and negligently and wantonly proceeded with said excavation nearly to the base of said stone wall without employing any means or methods for the protection thereof; and on account of such excavation, and by so carelessly, negligently and wantonly digging and removing the earth near to the base of said stone wall and to the depth of about eight feet, without employing any means or methods to prevent the giving away of said stone wall, or the dirt thereunder, upon March 29, 1917, the defendant caused said stone wall and the dirt thereunder to give way and fall into said excavation and caused said two-story building to collapse and fall into said excavation, whereby the same was totally destroyed.”
Considerable objection is made to the trial court’s instructions, but when these are read and construed together they are free from serious fault. They elaborated on the theory of plaintiffs’ right to recover if defendant did agree to protect and save the stone wall, and even went so far (in plaintiffs’ favor) as to declare that, if he did so agree, only the act of God, inevitable accident, and the like, would excuse him. The in structions said that such a contract as plaintiffs insisted on could be made by a series of oral conversations, and if the nature of the contract could be gleaned with sufficient precision from the several different conversations had at different times and places, it would be binding. “There must, however,” said the court, “be a fairly, reasonably definite proposition, offer, or condition or combination of these on one side of things to be done and performed under an oral contract, and a fairly, reasonably definite acceptance by the other party by words or acts or acquiescence, or all of these.”
It is difficult to find anything that looks like a plain palpable error in this case. The plaintiffs’ argument is mainly based upon the assumption that jt can still be considered that there was a contract to protect and save the stone wall. But the jury has said that there was no such contract, and after a laborious study of this record, the court has no misgiving about the correctness of that finding. What the record does show is strong corroborative proof that the clause inserted in the written building contract relating to the underpinning as a possible necessity and consequent extra item to be paid for by plaintiffs, was all the contract ever; entered into by the parties concerning this wall. The parties did not know, even the architect did not know, whether the stone wall would need to be underpinned. Its foundation structure was unknown by any of the parties concerned. Defendant did not know of the inherent weakness of the wall. He did not know of the overloading. No negligence was shown in the way he set about the work of underpinning, and the wall did not collapse at the place the underpinning was attempted until it gave way in the middle where no work of any sort had been done. Some of these facts were in dispute, of course, but the evidence for the defendant —which the jury obviously believed — was to that effect. .
There was a controversy in the trial court over the failure to notify the defendant of a default of his, under his written contract. That feature of the case only involved his right to recover for loss of profits when his contract was canceled. But as no allowance was made to him on that account, that matter needs no present attention.
There is nothing further in this case to justify discussion. A reply brief for plaintiffs attempts a somewhat different ‘theory from that pressed in the original brief. In the latter brief it is said:
“The plaintiffs, at all times, sought to recover upon an oral contract for the' underpinning of the wall.”
In their first brief they say:
“The plaintiffs instituted this action against the defendant for damages, alleging the breach of his contract, verbally made, to protect the stone wall in case he was awarded the building contract.”
But the record fails to establish a right of redress on either theory; and as nothing approaching error in this case can be discerned, the judgment is affirmed.
Buech, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
This suit by an heir at law challenges the validity of certain features of a will, and seeks a judicial construction of the will touching the disposition of the residuary estate.
The testator, W. E. Treadwell, in his lifetime was a citizen of Anthony, in Harper county. He died in 1918 seized of con siderable real estate and of about $75,000 worth of personal property. By his will and codicil, he made certain bequests of money and property to various persons, provided for certain annuities to certain beneficiaries, including an annuity of $1,-200 to his mother, the plaintiff, during her natural life. He also bequeathed $4,000 to the city of Anthony to purchase equipment for its fire department. The testator named the defendant, Robert H. Beebe, as executor, and to act as trustee to carry out the provisions of the will. In the original will, the testator provided:
“Sixteenth: After the death of . . . and of said Eliza C. Tread-well, [the plaintiff mother] . . . the rest and residue of my estate shall be by my executor or trustee paid and delivered to my heirs at law in accordance with the laws of descents and distributions of the State of Kansas, unless I shall hereafter by codicil hereto attached otherwise direct, in which event the rest and residue of my estate shall be disposed of in accordance with such codicil.”
The codicil provided:
“That my estate shall in all ways be administered and distributed as in my said will provided, excepting only that the rest, residue and remainder thereof, instead of descending in accordance with the laws of descent and distribution, as follows:
“After payment of annuities, legacies and gifts as in said will provided, all notes, accounts, bonds, choses in action then in the hands of my trustees or either of them and belonging to my estate, shall be converted into cash; and my trustee, Robert H. Beebe or his successor, shall then pay to the City of Anthony, Kansas, the sum of four thousand ($4,000.00) dollars, to be used by said city in purchasing- equipment for its fire department, and for such purpose and to be paid as aforesaid, I do give and bequeath to said City of Anthony, Kansas, said sum of four thousand dollars, to be used by said city in purchasing equipment for its fire department.
“My trustees, the said Beebe or his successor, shall then pay to the City of Anthony, Kansas, in trust, all funds then remaining in my estate as part thereof, to be held and used by said city as hereinafter provided, and for the uses and purposes hereinafter set out, and to be paid as above provided, I give and bequeath to said City of Anthony, Kansas, in trust all funds remaining in and a part of my estate after compliance with all the provisions of my will not affected by this codicil, and after-payment of said sum of $4,000.
“The amount so paid by my trustee to said City of Anthony, Kansas, shall be profitably and safely invested and the net proceeds of the investment thereof shall be used by said city for the purpose of buying food and fuel for needy and deserving persons who have been actual residents of said city for at least six months. I request that the president of the First National Bank of Anthony, Kansas, the president of the Citizens National Bank of Anthony, Kansas, and the president of the Farmers State Bank of Anthony, Kansas, act as an investment committee to invest the sum so paid in trust to said city, to collect all moneys due from said investment and to pay the net proceeds thereof into the treasury of the City of Anthony, to be kept as a relief fund by the treasurer of said City of Anthony, as custodian thereof. Vacancies in said investment committee may be filled by the commissioners of said city. The commissioners of said city shall pay claims for food and fuel furnished by drawing their order on the fund resulting from such investment; all claims for food and fuel furnished shall be itemized and verified, but no publicity shall be given ,to the names of the persons aided from such fund. In the case of any deserving person suffering from cancer in its early and probably curable stages, the commissioners of said city may allow as much as fifty dollars from such fund to aid such person in securing treatment for such cancer.
“After all the provisions of my will and of this codicil have been carried out, should any real estate remain a part of my estate, my trustee, the said Beebe or his successor, shall convey the same to my legal heirs, and they shall then acquire title to such real estate in the same proportions as they would have done had I died intestate on the date of such conveyance by my trustee.”
The mother and sole heir of the testator in this action challenges the validity of the trust created by the will and conferred upon the city of Anthony, on two main grounds, viz.: (1) that the city has no corporate power to accept and administer the trust, and (2) that the trust does not create a public charity, and consequently is void under the rule against perpetuities. The third contention of the plaintiff is that she is entitled to a judicial construction of the will, and a ruling that she is now seized of a vested remainder in whatever residue of the estate may exist when the valid provisions of the will have all been performed and discharged.
The trial court ruled against plaintiff on all her contentions, and she appeals.
In presenting these interesting questions Ave have been favored with voluminous briefs, which we have carefully studied; but we do not find that the propositions involved are very difficult, nor is there any dearth of authority to aid in their solution. If the trust creates a public charity, and until appellant’s first proposition is determined we will assume that it does, then it seems that under the spirit of Kansas law, and perhaps under the letter of it, the city of Anthony may accept and administer the trust created by this will.
The statutes confer on a city of the second class the power to make all necessary ordinances, not inconsistent with the laws of the state, “as may be expedient for maintaining the peace, good government, and toelfare of the city and its trade,” etc. (Gen. Stat. 1915, § 1748) ; the city is authorized to purchase and hold real and personal property for the use of the city, and the word “purchase” has been held to mean the acquisition of title to property by any mode except by inheritance. (Delaney v. City of Salina, 34 Kan. 532, 539, 9 Pac. 271.) It has been held that a city may accept and administer a fund in perpetuity for the purpose of maintaining a public park (Schnack v. City of Larned, 106 Kan. 177, 186 Pac. 1012) ; and for the purpose of prospecting for and developing a coal mine (Delaney v. City of Salina, supra). In the Salina case, the present contention was made and answered:
“It is claimed that it is not within the power of a city to accept or receive property as a devise, bequest, or legacy, or for any such purpose as that which is designated in the present will. We do not think that this point is sound or well taken. Mr. Dillon, in his work on Municipal Corporations, uses the following language:
“‘Sec. 436 [5th ed. §981]. Municipal and public corporations may be the objects of public and private bounty. This is reasonable and just. They are in law clothed with the power of individuality. They are placed by law under various obligations and duties. Legacies of personal property, devises of real property, and gifts of either species of property, directly to the corporation and for its own use and benefit, intended to and which have the effect to ease them of their obligations or lighten the burdens of their citizens, are valid in law, in the absence of disabling or restraining statutes. Thus,' a conveyance of land to a town or other public corporation for benevolent or public purposes, as for a site for a school house, city or town house, and the like, is based upon a sufficient consideration, and such conveyances are liberally construed in support of the object contemplated.’
“ ‘Sec. 437 [5th ed. § 982]. Not only may municipal corporations take and hold property in their own right by direct gift, conveyance, or devise, but the cases firmly establish the principle, also, that such corporations, at least in this country, are capable, unless specially restrained, of talcing property, real and personal, in trust for purposes germain to the objects of the corporation, or which will promote, aid or assist in carrying out or perfecting those objects. So such corporation may become eestuis que trust within the scope of the purposes for which they are created. And where the' trust reposed in the corporation is for the benefit of the corporation, or for a charity within the scope of its duties, it may be compelled, in equity, to administer and execute it. But the legislature may divest a municipal corporation of the power to administer the charitable trusts conferred upon it, and appoint or provide for the appointment of new trustees independent of the corporation, and vest in them the management of such trusts.’
“See, also, Dillon on Municipal Corporations, Secs. 438 to 443 [5th ed. §§ 983-988].” (p. 538.)
“From the time the first modest volume was given to the public until the present, Dillon on Municipal Corporations has been regarded as high authority by both the bar and the bench.” (Everly v. City of Gas, 95 Kan. 305, 308, 147 Pac. 1134.)
In 19 R. C. L. 770, et seq., it is said:
“So also a municipal corporation has an implied power to receive a gift of real estate for any corporate purpose. While a municipal corporation would of course have no power to purchase with the public funds land or other property except for such public purposes as it was authorized to expend money for by its charter, it is well settled that it may hold real estate which is not devoted or intended to be devoted to any public purpose when such property has come to it in a lawful manner, as by gift or devise.” (770.)
“It is held in some jurisdictions that a municipal corporation has no power to administer a trust in favor of persons in reduced circumstances who are not paupers or persons for whose support the municipality is under a statutory liability. In other jurisdictions it is held that such a trust is valid, as the effect of the gift is to prevent persons from becoming a public charge. . . . If a trust is beyond the power of a municipal corporation to execute it is not on that account void and a court of equity will appoint a new trustee to execute the trust.” (778,779.)
In 5 R. C. L. 320, it is said:
“A municipal corporation may act as trustee of a charitable trust where the trust created-is germane to the purpose for which the corporation was called into being, and when the administration of the trust, and the liabilities it imposes, are not foreign to the objects for which the corporation was instituted. In conformity with this rule it has been frequently declared that a municipal corporation may act as a trustee of a charitable trust for the support or establishment of free or public schools within the municipality. Some courts take the view, however, that a municipal corporation cannot take as trustee of a charitable trust unless the power to do so is expressly granted or is necessary to the performance of its duties as a territorial and municipal corporation, while other courts maintain the rule that a municipality may act as trustee of a charitable trust when it is not prohibited from so doing by statute. And this is true although the purposes of the trust are not strictly within the scope of the direct purposes of the corporation, but merely collateral thereto.”
■ In 28 Cyc. 261, in discussing the inherent powers of municipalities, it is said:
“Every municipality asks for such powers as its location or conditions suggest, or its population or promoters may desire, and gets all which legislative complaisance may yield, with the result that an array of municipal charters of the United States present to legal view at once an amusing exhibition and a perplexing problem. The legislative attempt often seems to be to enumerate all the powers intended to be granted; and then, recognizing the futility of such effort, the legislature supplies omissions with a clause known as the general welfare clause, granting to the corporation power to do all such acts and pass such ordinances as may conduce to the public welfare. This residuary grant of municipal power, in whatsoever phrase it may be couched, although obviously intended to add to the enumerated powers of the municipality, has been thought in some cases to be nugatory under the constructive limitations of the preceding specific enumeration. The better view seems to be that the ‘general welfare clause’ alone amounts to a grant of all usual and necessary municipal powers, and the enumeration of particular powers grants all others therein specified.”
“It has also been held that a city may, without special authority from the legislature, take a devise of land beyond its limits-for a public park, and that it may do so in trust for a charitable use, although it may not, in the absence of such special authority, be able to exercise any police power over it.” (Id. 606.)
“A municipal corporation has the capacity and power to take and hold real or personal property, by devise, bequest, or deed of gift, in trust for purposes of a public nature, including charitable uses, germane to the objects of the corporation, even according to the weight of authority, although the object may be one which the municipality could not carry out at the public expense.” (Id. 616.)
In Maxcy v. Oshkosh, 144 Wis. 238 (31 L. R. A., n. s., 787, 793), it was said:
“That a city may become the trustee of a charitable trust, where the donation is made to aid some public purpose charitable in its nature, which it is the legal duty of the city to support and provide for, does not admit of doubt. When the trust is accepted, the city assumes the same obligations and becomes amenable to the same regulations that apply to other trustees of such trusts, and among them is the obligation to perpetually administer the charitable fund in accordance with the expressed wish of the testator. Thorndike v. Milwaukee A. Co., 143 Wis. 1, 126 N. W. 881; Beurhaus v Cole, 94 Wis. 617, 69 N. W. 986; Philadelphia v. Girard’s Heirs, 45 Pa. St., 1, 25; Vidal v. Girard’s Ex’rs, 2 How. 127, 180, 190; McDonogh’s Ex’rs v. Murdoch, 15 How. 367; Webb v. Neal, 5 Allen, 575; McIntire Poor School v. Zanesville C. & Mfg. Co., 9 Ohio, 203; First Parish v. Cole, 3 Pick. 232; Comm’rs v. McPherson, 1 Speers (S. C.) 218; Governor v. Gridley, Walk. (Miss.) 328; Carmichael v Trustees, 3 How. (Miss.) 84; Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434; Quincy v. Atty. Gen, 160 Mass. 431, 35 N. E. 1066; Chambers v. St. Louis, 29 Mo. 543; Delaney v. Salina, 34 Kan. 532; Maynard v. Woodard, 36 Mich. 423; 2 Dillon Mun. Corp. (4th ed.) § 567; Higginson v. Turner, 171 Mass. 586, 51 N. E. 172.” (p. 250.)
It is needless to pursue this inquiry further. The court holds that a Kansas municipality has power to accept a bequest of a fund and to administer it in perpetuity if the purpose of the trust thus created is for a public, charitable use.
The purposes of the trust which the testator sought to establish are:
“The buying- of food and fuel for needy and deserving persons who have been actual residents of said city for at least six months.” (Analogous to legal settlement, Gen. Stat. 1915, § 6821.)
“In the case of any deserving person suffering from cancer in its early and probably curable stages, the commissioners of said city may allow as much as fifty dollars from such fund to aid such person in securing treatment for such cancer.”
Are these public uses, public charities? It would seem so. The constitution declares that such benevolent institutions as the public good may require shall be fostered by the state (Art. 7, § 1), and it is the duty of the several counties to provide for those inhabitants, who, by reason of infirmity or misfortune, may have claims upon the sympathy and aid of society. (Art. 7, § 4.) Pursuant thereto and in harmony therewith, elaborate and humanitarian statutes have been enacted authorizing and requiring counties, cities and townships to relieve the poor and afflicted. While the county is mainly the basic unit for the cost of local, charitable relief, yet the mayors and councils of the several cities are the overseers of the poor within their municipalities (Gen. Stat. 1915, § 6817) ; there may be city as well as county almshouses (Gen. Stat. 1915, § 6885) ; and the relief of the poor of a city is certainly a proper concern under its corporate duty to provide for the general welfare of the municipality. Food, fuel, clothing and shelter are the primary essentials of existence within the Kansas parallels of latitude, and if a city cannot concern itself with the relief of the poor, or with the administration of relief provided by a charitably disposed philanthropist to the deserving poor, in the matter of distributing food and fuel, then all the long journey which organized society has traveled from the days of the cave man comes to naught, and our boasted humanitarianism is but a pretense and a humbug. Public purpose! There are no public purposes impressed on a civilized community so important as to see to it that de serving persons in its midst, do not suffer from hunger and cold. Appellant cites the old case of The State, ex rel., v. Osawkee Township, 14 Kan. 418, as authority against the validity of this trust. We shall not now undertake a reexamination of the principal questions involved in that case. The legislature has deliberately disregarded that decision in two notable instances, for the relief of drought-stricken farmers in central and western Kansas. (Laws of 1891, chs. 42, 129 and 199; Laws of 1895, ch. 242)-; and this court has recently qualified the reasoning upon which the decision in the Osawkee case rested (Beck v. Shawnee County, 105 Kan. 325, 182 Pac. 397). We note, however, that even the rigid reasoning of the Osawkee case would tend to sustain rather than to defeat the trusts created by this will. The learned jurist who wrote the opinion in the Osawkee case, speaking of its main purpose, said:
“It was generally understood that many farmers would come to this spring’s sowing with little or no seed, and with stock weakened for lack of grain. To make good this lack is the evident purpose of the act— to provide grain for seed and feed. Its aim is not'to furnish food to the hungry, clothing to the naked, or fuel to those suffering from cold. It is not the helpless and dependent whose wants are alone sought to be relieved. If it were, the fact that many who are neither helpless nor dependent might obtain assistance through its administration, would be no valid objection to the constitutionality of the law. It contemplates a class who have fields to till and stock to care for, and proposes to help them with seed for their fields and grain for their stock, that thus they may pursue with better prospects of success their ordinary avocations. It taxes the whole community to assist one class, and that, not for the purpose of relieving actual want, but to assist them in their regular occupations.” (p. 423.)
What the Osawkee bond issue did not contemplate — food for the hungry, fuel for those suffering from cold — is precisely what this trust to the city of Anthony does contemplate.
The De Boissiere case (66 Kan. 1, 71 Pac. 286), which had to deal with a private trust — to provide a home in perpetuity for the orphans of Odd Fellows — has no application here. The present benefaction is to provide necessities for everybody within the city of Anthony who may need and deserve relief from cold and hunger. This is clearly a public purpose. But there is a limitation — only “deserving” inhabitants may be so relieved. Well, there is no urgent corporate duty, perhaps none at all, to relieve the needs of the town loafer, the spendthrift, the worthlessly improvident; and Christian society, without any qualms of conscience, may leave them to the consequences of their own folly. This limitation upon the testator’s beneficence does not create a legal infirmity in the erection of the trust.
Neither does the provision concerning the suggested committee of local bankers to invest the fund for the city affect the validity of the trust. A trust of this sort, designed to endure as long as the town exists, is worthy of the public-spirited assistance of the best financial brains in the city, and quite appropriately the testator suggested — and he only requested— that the heads of the three leading financial institutions of the city be called into voluntary service in the matter of safety and permanency of the investment of the trust.
The provision for the assistance of persons afflicted with cancer is also a public philanthropy, and one which the testator, himself a long sufferer and. victim of that disease, had a right to make, and which the city has power to accept and administer. This court would greatly regret it if law or precedent compelled us to hold the contrary. Here there is no limitation. Any person, anywhere, suffering from cancer, in its earlier and probably curable stages, may be assisted in securing treatment. The provision obviously creates a public charity, and one which the city may accept for administration.
The plaintiff’s last contention is that, notwithstanding the trust provisions of the will, she is entitled to a judgment construing the will and to a judicial ruling that by its terms she takes presently, as vested remainderman, whatever property of the testator is left after the bequests, annuities, and public trusts created by the will are satisfied. The court holds otherwise. The will and codicil are to be read and construed together. The will says that after the death of the plaintiff, not before, the rest and residue is to be paid and delivered to his then existing statutory heirs. The will leaves no property undisposed of. The residue of the estate is bequeathed to certain persons readily ascertainable, to be received by them at a time — after his mother’s death, and by a definite mode — the Kansas law of descents. (Lasnier v. Martin, 102 Kan. 551, 555, 171 Pac. 645.) Furthermore, this bequest is conditional. If a codicil should be made, this provision of the will was not to become altogether effective; and a codicil was made—
“After all the provisions of my will and of this codicil have been carried out, should any real estate remain a part of my estate, my trustee the said Beebe or his successor, shall convey the same to my legal heirs, and they shall then acquire title to such real estate in the same proportions as they would have done had I died intestate on the date of such conveyance.”
By the will the legal title to the property is conferred upon the executor and trustee. It remains in him until everything provided and contemplated by the will is accomplished. The mother takes nothing but what the will bestows on her — an annuity of $1,200 per annum. After all else has transpired, including her death, the executor is to convey the residue of the property to his then ascertainable heirs. (Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950; Markham v. Waterman, 105 Kan. 93, 182 Pac. 546, and citations on page 96.) Doubtless there may be persons in esse who have now a vested interest, with enjoyment postponed, in the residue of this estate, but not the testator’s mother, for the will clearly cuts her off with an annuity. They are those who are to enjoy the residue when the fullness of time and the final accomplishment of the executor’s duties will mature their rights to conveyances and possession. The trial court correctly held that the will and codicil containéd no ambiguity of any consequence to the plaintiff.
Affirmed.
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The opinion of the court was delivered by
Mason, J.:
In a motion for a rehearing the defendant, among other things, urges that in holding the service of summons to have been sufficient the court has misinterpreted the effect of the taking over of the telephone lines by the government and has departed from its own prior rulings. The basis of the decision may perhaps be made clearer by ->a brief addition to the original opinion. We do not question the completeness of the government’s control of the telephone systems while public management was in force, nor do we suggest that during that period the situation was such as to render the business amenable to state regulation or subject the corporations owning the property to liability for its negligent operation. We regard the terms of the president’s order, in providing for the conduct of the business by the postmaster-general through the owners, directors and officers, as well as the employees of the systems, as indicating the retention to some extent of the corporate organization, but the affirmance does not depend upon the correctness of that view.
As pointed out in the original opinion (ante, p. 130), the statute here involved (Civ. Code, § 70, Gen. Stat. 1915, § 6961) is quite different from that relied upon in Chilletti v. Railway Co., 102 Kan. 297, 171 Pac. 14. It applies to corporations generally, irrespective of their character or their active engagement in business. It provides for the service of summons upon officers because of their relation to the corporation, not because of their being at the time actually performing a particular kind of work in connection with a public utility. The officers of the defendant corporation did not cease to be such upon the taking over of its telephone system by the government, whatever may have been the case with mere employees. From the statutory classification of a managing agent with the officers of a corporation, it is to be presumed that the relation to the defendant of the person described by that title in the sheriff’s return continued, notwithstanding the change in the control of its property — a presumption not overthrown by the affidavit attacking the service, which stated no evidential fact as distinguished from a mere legal conclusion. We hold the delivery of a copy of the summons to him to have been sufficient to bring the defendant into court, not because the character of the work he was, then-doing under the government necessarily qualified him- to receive it, but because it was not proved that the relation he had sustained to the corporation at the time the ■ postmaster-general took charge had ever been terminated.-•
2. In behalf of the plaintiff an-argument is renewed which was urged at the original hearing, but not mentioned in the opinion, to the effect that the defendant lost its right to a review of the ruling on its objection to the service by moving for a judgment in its favor on the special findings, and by asking this court to remand the case with directions to enter judgment in its favor. It is argued that inasmuch as a judgment of that character would put an end to the litigation and operate as a bar to any further prosecution of the plaintiff’s claim, the defendant in asking it is seeking affirmative relief. As we view it, the motion for a judgment on the findings, although affirmative in form, was in effect a request that the court decide that as a matter of law the facts found prevented any recovery by the plaintiff. The relief asked was substantially the end sought in any defense on the merits, and the making of such defense did not involve the abandonment of the jurisdictional question. (See Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648.)
Other questions reargued have been given further consideration, but the court adheres to the views originally announced.
The motion for a rehearing is overruled.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for destruction of an oil well by explosion of a shell of nitroglycerin while it was being lowered into the well. The plaintiffs recovered, and the defendant appeals.
The principal charge of negligence was that the shell containing nitroglycerin was lowered with too great rapidity, and that its descent was suddenly arrested by undue application of the brake, producing a violent jerk, which caused the explosion. The principal assignment of error is that a demurrer to the evidence was overruled.
The evidence was conflicting with respect to every material matter except one. There was no dispute that to allow a shell to descend rapidly, and then to make a sudden application of the brake, was bad practice, was liable to cause an explosion, and was dangerous. . There was abundant evidence that the shell was lowered at a greatly excessive rate of speed. Its speed was compared with the speed of the bailer when in use. The bailer is allowed to go down as fast as it will, at full speed, which will cause the crank on the reel to spin. In this instance, when the explosion occurred the crank was spinning with such rapidity that it appeared to experienced men who were present to have gotten beyond control. In lowering a shell of nitroglycerin the crank ought not to turn faster than the hand can follow it. There was abundant proof that just before the explosion the shooter who was lowering the shell set the brake suddenly, and so tight that after the explosion extra effort was required to release it. This phase of the case was covered by two findings, which read as follows:
“Q. 4. Do you find that the shooter, just prior to said explosion, set the brake so as to stop the shell containing nitroglycerin with a sudden jerk? A. Yes.
“Q. 6. Do you find that immediately after said explosion the brake which controlled the reel which contained the line attached to said shell was found to be tightly set? A. Yes.”
The explosion occurred at a depth of 200 feet. One of the defendant’s experts testified that if a 20-quart shell (the size of the one in question) were permitted to descend by its own weight, it would be dangerous from the time it attained speed, which would probably be within twenty feet; nitroglycerin is a dangerous agency, which must be handled with the utmost care; concussion will explode it, and sudden application of the brake to the reel when a shell is descending rapidly might cause an explosion. The result is, an adequate cause of the explosion proceeding from negligent conduct of the defendant was established, and it was within the province of .the jury to draw the inference expressed by the verdict. (Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215.)
It is said that two witnesses for the plaintiffs were not qualified to give expert testimony, and that their testimony invaded the province of the jury. The witnesses were fully qualified, and the testimony which it is claimed invaded the province of the jury related to the one subject which has been referred to, about which there was no disagreement.
It is said the court invaded the province of the jury in respect to the same subject, by instructing the jury that if they found the explosion was caused by excessive speed in lowering the shell, and sudden application of the brake whereby the shell was stopped with a violent jerk, the defendant was negligent. Whenever there is no room for divergent estimates to be placed on conduct, the law makes the estimate. This rule is too well established to need fortification by citation of authority. Here the jury was allowed to find whether or not the facts existed on which the court predicated negligence, but there was no difference of opinion among the men who knew, and there could be no difference of opinion among reasonable men, with reference to the quality of the defendant’s conduct, if the explosion occurred from the cause indicated.
The defendant requested the court to instruct the jury that the measure of damages was the cost of drilling another well beside the one which was destroyed. The request was denied, and the court instructed the jury as follows :
“If you find for the plaintiffs herein, then it will he your duty to assess the plaintiffs’ damages, and in this connection you are instructed that plaintiffs would he entitled to recover all of the damages which you find from the evidence they suffered as the proximate result of said premature explosion, and if you find that said well and casing therein were destroyed, then plaintiffs would he entitled to recover the value of said well and casing as it was prior to said explosion; and if you further find from the evidence that the plaintiffs acted as reasonably prudent men in endeavoring to save said well, and in so doing expended money and incurred expenses, then plaintiffs would be entitled to recover for such reasonable expense as you find they so expended in endeavoring to save said well.”
The argument in support of the requested instruction rests on the assumption, stated in the brief, that the oil-bearing sand was not affected by the explosion, and that another well of the same depth would make the plaintiffs whole. The evidence was to the contrary. Salt water was encountered above the 200-foot level and in several other places. The plaintiffs were not able to case off the salt water after the explosion and prevent it from reaching the oil. However this may be, the plaintiffs were not awarded the value of the well, which according to the evidence was a five-barrel well, and worth $1,500 per barrel. The well cost $3,000. The defendant did not con test the amount, and it was fair evidence of what another well would cost. The plaintiffs spent some $900 in trying to save the well. The defendants did not contest the amount, which constituted a proper item of damages. (See cases cited, 8 R. C. L., 450, § 21.) Credit was given the defendant for the value of some salvage, amounting to $47.50. The verdict was for $3,500, and consequently the defendant has no reason to complain of the manner in which the subject of damages was submitted to the jury.
The defendant’s employee in charge of the work testified that he took all proper precaution in lowering the charge of nitroglycerin into the well. He said he kept his hand on the brake, which was set just enough to allow the shell to pull itself slowly down the hole, and he was in absolute control all the time. While the shell was going down nicely he felt the jar of the explosion, automatically set the brake, and got away. Several other witnesses who were present when the explosion occurred contradicted him at every vital point. The jury accepted their testimony, and liability of the defendant followed as a matter of course.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to recover damages from the defendant for its failure to release a real-estate mortgage. Judgment was rendered in favor of the defendant on a demurrer to the evidence of the plaintiff. The plaintiff appeals.
This is the second time this action has been before this court. (Mathews v. Insurance Co., 104 Kan. 254, 178 Pac. 609.) In the former appeal a demurrer to the plaintiff’s petition had been sustained. The plaintiff appealed, and the judgment was reversed. We quote from that opinion:
“The petition alleged that the mortgagor, by contract with the mortgagee, had the privilege of paying the debt before its stated maturity, in the event he sold the property to a purchaser who declined to assume the mortgage; that he sold the property free of encumbrance to such a purchaser; that he tendered the amount of the debt to the mortgagee, in order that he might consummate the sale and convey the property free of encumbrance; but that the tender was refused, and due demand for release of the mortgage was not complied with.” (p. 255.)
The insurance company filed an application for rehearing, which was denied. (Mathews v. Insurance Co., 104 Kan. 540, 179 Pac. 974.)
Mathews owned real property in Jackson county. He gave a mortgage to the defendant to secure the payment of a note for $7,000. The note contained the following:
“In the event that the land is sold after three years from date by bona fide sale, full payment plus two months additional interest will be accepted, provided the purchaser will neither assume nor agree' to a reconstruction of the mortgage contract, evidence of which is to be furnished to the satisfaction of the company.”
The note was dated January 1, 1914. The transactions out of which this action grew occurred more than three years after that date. The plaintiff sold the land to William L. Sconce for $17,000 cash, the land to be free and clear of all encumbrances. Sconce refused to assume the mortgage or to agree to a reconstruction of the mortgage contract. Satisfactory evidence of that refusal was furnished to the defendant. The interest due on the note April 1,1917, was paid in March, 1917, through L. C. Burns, president of the Hoyt State Bank. In the letter transmitting the interest to the defendant, L. C. Burns, for the plaintiff, wrote, “I will send you a draft for $7,000.00 this week to pay the loan in full.” To that letter the defendant, on March 22, 1917, replied :
“I have your letter of the 19th inst., enclosing draft in the amount of $420.00, in payment of interest due April 1st, 1917, under above numbered loan. I note that you are about to mail draft for $7,000.00 in full payment of this loan. In view of the fact that the loan will not mature until January 1st, 1924, and under its terms, neither due nor payable at this' time, I will be compelled to decline a remittance' tendered in full payment.”
On March 23, 1917, a draft for $7,000 was remitted to the defendant by L. C. Burns for the plaintiff. That draft was returned on March 26,1917. The letter returning the draft contained the following: “For reasons assigned in my letter of the 22d inst., I return your draft herewith.” The plaintiff on March 29, 1917, wrote the defendant and informed it that he had sold the land, that he had a letter under date of January 10, 1914, stating that the plaintiff had the privilege of paying the note prior to maturity, in accordance with certain stipulations and conditions, and requested a copy of the payment provision.The defendant replied to that letter on April 3, 1917, and set out the conditions under which the note could be paid and stated that satisfactory evidence by affidavit must be furnished to show that the sale was made in good faith. The defendant wrote the purchaser and from him received a letter stating that he had purchased the land. Other correspondence followed. In a letter to the attorney for the plaintiff, dated July 31, 1917, among other things the defendant said:
“The company stands ready and willing to accept payment in accordance with the terms of the mortgage paper and Mr. Mathews has specifically advised (as I understand your correspondence) that he has turned the correspondence over to you. . . .
“Our general counsel advise a sale means that actual transfer of the property and as the company is ready and willing to abide by the provisions in the note, which reference is made in the mortgage and accept payment at the time of a bona fide sale of the land upon receipt of satisfactory proof that such sale has been made, it seems that its position should be entirely clear and that it is correct in every particular.
“I will repeat in closing that the company does not want a law suit, but that it is entitled according- to the terms of the note and mortgage to satisfactory evidence as to bona fide nature of the sale and the consummation of the deal.”
The conditions imposed by the letter dated July 31, 1917, could not be complied with. “Actual transfer of the property” means a delivery of the deed. That could not be done unless the consideration was paid at or before the time of delivery. The purchaser would not pay until the mortgagé was released. The consummation of the deal could not be accomplished except by the payment of the consideration, the release of the mortgage, and the delivery of the deed. The defendant’s refusal to accept payment of the mortgage before payment of the consideration and delivery of the' deed effectively blocked the consummation of the deal.
2. The defendant says that there was a variance between the petition and the evidence, and that therefore the demurrer to the evidence was properly sustained. There was a variance between the petition and the proof, but that variance did not mislead the defendant and cannot, be held to be material. The defendant at all times had full and accurate knowledge of the conditions on which the mortgage could be paid, and was not misled as to them by the allegations of the petition.
3. The defendant argues that there was no tender of the amount necessary to pay the note by the proper party. On June 13, 1920, L. C. Burns sent the defendant a draft for $7,160, and wrote as follows:
. “I am enclosing a draft for $7,160.00 as per order of W. L. Sconce to pay the loan of Jas. E. Mathews on N. W. 14 of sec. 21, twp. 9, range 15, Jackson county, Kansas.”
The draft was for an amount equal to the interest accrued and for two months’ additional interest. It was refused and returned. In the letter returning it the defendant said:
“I am obliged to return your draft herewith, as from the- showing made, loan cannot be paid in full. . . .
“You will note the persistence in refusing to give the company evidence requested and, of course, until Mr. Mathews has done this, the showing is not satisfactory and the loan is not payable under the sale option.”
No claim was then made that the amount tendered was not by the proper party. The defendant should not now be per mitted to raise this question under the circumstances of this case. A tender of payment by a stranger to the mortgage contract would not be good. (38 Cyc. 155; 26 R. C. L. 630; Note, L. R. A. 1918 C, 186-191.) Sconce was not a stranger to the mortgage. He had contracted to purchase the land and had agreed to furnish the money with which to pay the mortgage thereon, but would not take the land unless the .mortgage was released. He was assisting the plaintiff to procure a release. The plaintiff testified:
“After receiving the statement from the company telling me the amount and what payment was necessary, I made arrangements with Mr. Burns to remit the amount of the note and mortgage' to that date, expressed in that letter, of $7,160. I did not have $7,000 to pay the mortgage without borrowing it.
“Q. What arrangement, if any, did you make with Sconce and Burns for the payment of this $7,000.00 or what it was to be? A. Sconce was to furnish the money to pay this loan off as part of the consideration for the farm.”
The defendant knew by correspondence that both the plaintiff and Sconce were endeavoring to get a release of the mortgage so that the purchase could be completed. The defendant knew, or should have known, that the tender of $7,160 was made for the plaintiff.
The evidence was sufficient to prove a cause of action in favor of the plaintiff and should have been submitted to the jury.
The judgment is reversed, and a new trial is directed.
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The opinion of the court was delivered by
Porter, J.:
On July 26, 1901, the defendant, James Hay, borrowed $300 from the Belleville State Bank, for which he gave his ninety-day note secured by a chattel mortgage on live stock. A few days afterward he absconded, left the state, and did not return until 1917, about the time of the death of his mother, from whom he inherited an interest in property. The plaintiffs, who were stockholders of the bank in 1901, claimed they owned the note, and brought this action against Hay to recover the amount due thereon. The bank was joined as a defendant, and filed its cross petition, setting up its ownership of the note, and asking judgment against Hay. At the same time it procured an attachment which was levied upon Hay’s property. The affidavit for the attachment alleged that Hay procured the loan by false and fraudulent representations to the effect that the property included in the chattel mortgage belonged to him and was free and clear of encumbrance, when, in fact, it was covered by mortgages held by other banks. The trial resulted in a judgment in favor of the bank against plaintiffs for costs, and against the defendant for the amount of the note and sustaining the attachment. The plaintiffs bring the case here for review, and the defendant has also filed notice of a cross appeal.
1. Plaintiffs claim that when the note was executed, the stock of the Belleville State Bank was owned by E. L. Johnson, F. M. Johnson, Oliver Johnson, R. T. Stanfield, and J. R. Caldwell, none of whom had much banking experience; that when it was discovered that the note could not be collected and that it was necessary to charge it off the books and place it in the profit and loss account, the stockholders conceived the notion that by considering the note as a dividend, each stockholder would take his proportionate share of the note in the event it was ever collected. It was shown that no dividend was actually declared, and that the bank was in no condition to declare a dividend, but the note was taken out of the “note case,” where live assets were kept, and was placed in an envelope, marked, “James Hay note, charged off.”
The plaintiffs’ evidence showed that on October Y, 1901, the stockholders of the bank had a meeting in which they authorized the following entry upon the minute book of the bank: “Loss on Securities, $300 James Hay note.” E. L. Johnson testified that he was one of three stockholders who had active management of the bank, and at the meeting they talked over whether they would put up the money as individuals or would charge the note to the earnings account and make a dividend of it, and decided to let the earnings of the bank take care of the note; that there was no money in the earnings account at that time, and the note was not actually charged to that account until November 4, 1901, at which time there was in the earnings account the sum of $230.49; and that as a result the account was overdrawn, and the balance was taken care of by subsequent accumulations and earnings.
In 1912 plaintiffs sold their stock to Luther Bonham, and they claim that he made an oral agreement with them that out of the assets of the bank which were to be delivered to the purchaser, the James Hay note was to be excepted. One of the plaintiffs testified in substance that in the sale of the stock he said to Mr. Bonham, “Here is the note that we want to keep out; it belongs,to the stockholders. . . . This note was charged off from the assets of the bank and turned over to the stockholders, and they appointed me as custodian of the note for the reason that sometime in the future we expected this note to be valuable to us,” and that Bonham said, “Ail right.” This was contradicted by Bonham, who testified that he never saw the note, and that no reservation of it was made in the sale; that the note was not considered and did not appear on the register of the bank; and that the matter of charged-off paper was not discussed.
Even without the testimony of Bonham, in our opinion, the trial court rightly directed the jury to return a verdict against the plaintiffs. The petition does not allege, nor does the evidence show, that the plaintiffs purchased the note or paid for it, or that it was actually declared as a dividend out of the as sets of the bank. Besides, the statute provides that before a dividend ean be declared ten per cent of the profits must be carried to the surplus fund (Gen. Stat. 1915, § 551), and there is the further provision that:
“No bank officer or director thereof shall, during the time it shall continue its banking operations, withdraw or permit to be withdrawn, either in form of dividends or otherwise, any portion of its capital. If losses have at any time been sustained by such bank equal to or exceeding its undivided profits then on hand, no dividend shall be made, and no dividend be declared by any bank while it continues its banking business to any amount greater than its net profits on hand, deducting therefrom its losses, to be ascertained by a careful estimate of the actual cash value of all its assets at the time of making such dividend; the present worth of all maturing paper shall be estimated at the usual discount rate of the bank.” (Gen. Stat. 1915, § 553.)
Plaintiffs’ evidence not only established the fact that they had no right to or ownership in the note, but that it was the property of the bank. No dividend was, in fact, declared; and none could have been lawfully declared at the time of the transaction under which plaintiffs claim. Of course, the mere fact that plaintiffs in their talk at the time the note was charged off considered the transaction as making a dividend of the note ought not to be controlling. If they had assessed themselves or in some way put up the money to meet the loss the bank had sustained, the fact that they concluded to regard the note as a dividend might not of itself prevent them from claiming ownership of the note. But they do not claim to have paid a dollar to the bank to take up the loss occasioned by the note. Their claim is that by an arrangement among themselves the note was charged to the earnings account, to be subsequently taken care of by future earnings. Of course, the future, as well as past, earnings of the bank would belong to the bank, and not to the stockholders. A corporation exists as an entity separate and apart from the shareholders. (Bank v. Milling Co., 101 Kan, 446, 167 Pac. 1036, and authorities cited.) When plaintiffs disposed of their shares in the bank they could not lawfully carry away with them any property belonging to the bank, and this note, regardless of its value at the time, was an asset of the bank the same as all other notes and property carried in the profit and loss account of the bank.
2. The defendant, James Hay, has served notice of a cross appeal. He is satisfied with the decision holding that the plaintiffs have no right to recover, but complains of the ruling directing a verdict against him in favor of the bank. His claims of error hardly rise to the dignity of serious contentions. It is insisted that the bank offered no evidence in support of its cross petition, and no testimony to prove its ownership of the note, and therefore there was no evidence to sustain a judgment against him; and attention is called to the fact that both the defendant, Hay, and the bank, objected to plaintiffs’ testimony, and demurred to it when plaintiffs rested. But plaintiffs’ evidence established the fact that the note, which was given to the bank in the first place, still belonged to it, and that it had never been paid. Merely because one of the plaintiffs testified that a notation on one of the books of the bank indicated, in his opinion, that the note had been paid in some manner was no evidence of payment, especially in the face of the undisputed evidence that the note never had been paid. The bank introduced evidence to contradict that of the plaintiffs with reference to what occurred at the time of the purchase of the bank’s stock by Bonham, and it was not necessary for it to offer testimony to prove facts which the plaintiffs’ evidence had established.
Because the provisions of the code authorize the plaintiff, in certain cases, to have an attachment against the property of the defendant, it is seriously urged that the bank, being a defendant, could not procure an attachment against a codefendant. Although named as a defendant in the action, the bank occupied the position of a plaintiff in its cross action against Hay, and was entitled to procure an attachment the same as if the action had been brought originally by it as plaintiff. It was not necessary for the bank to' offer evidence on its own behalf to sustain its attachment, because plaintiffs’ evidence showed that when Hay obtained the loan from the bank he falsely represented that certain personal property belonging to him was free and clear of incumbrances, while,' in fact, it was covered by mortgages to another bank. There was abundant evidence to sustain the attachment on the ground of fraud.
The question of the statute of limitations was one of law and not of fact, when it appeared bejmnd any dispute that the defendant’s absence from the state tolled the statute.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Out of abundance of caution in disposing of the plaintiff’s claim of right to recover on a fire insurance policy which by its express terms was suspended and inoperative at the time the plaintiff suffered a fire loss, and prompted also by a request by the state department of insurance, amicus curise, a rehearing was granted in this case.
However, after a careful consideration of new briefs of counsel, and the oral arguments also, the court cannot discern that it failed to consider and decide, deliberately and correctly, every proposition involved in the case so far as presented by plaintiff and defendant in the trial court; and unless the suggestions raised by the amicus curise disclose an erroneous result, our former decision (105 Kan. 675) will have to stand.
The department of insurance, amicus curise, raises two main propositions:
“First. An insurance agent has such authority as is given him by the general law of agency, by the statutes of the state of Kansas, and by the license which the department issues him. Such authority cannot be cut down by a private, secret, undisclosed agreement or understanding between the agent and the company.
“Second. Under the antidiscrimination law of 1909 (Gen. Stat. 1915, §§ 5363-5373) every company subject to the act must have uniform rates and must charge every person exactly the same premium for equal protection. Premium is earned only while the insurance contract is in force. Risk and premium go hand in hand. If one ceases the other ceases. In other words, rates must be absolutely uniform.”
On the first of these, counsel for the insurance department argue that because of the broad language of the act providing for the issuance of licenses’ by the department to the local agents of fire insurance companies upon their written request, every agent so licensed is in effect a general agent of his company. The pertinent provisions of the licensing act (Gen. Stat. ' 1915, §§ 5178, 5179) read:
“Sec. 5178. It shall be unlawful for any person, company or corporation to transact the business of insurance or guaranty, or do any act toward transacting such business, unless the said person, company or corporation shall have been duly authorized under the laws of this state to transact such business and shall have received proper written authority from the superintendent of insurance in conformity with the provisions of the laws of this state relative to insurance and guaranty; ...
“Sec. 5179. Any insurance company not organized under the laws of this state may appoint one or more general agents in this state, with authority to appoint other agents of said company in this state. A certified copy of such appointment shall be filed with the superintendent of insurance, and agents of such company appointed by such general agent shall be held to be the agents of such company as fully, to all intents and purposes, as if they were appointed directly by the company. Agents for any such company in this state may be appointed by the president, vice president, chief manager or secretary thereof, in writing, with or without the seal of the company; and when so appointed, shall be held to be the agents of such company as fully as if appointed by the board of directors or managers in the most formal mode.”
It is rather a remarkable contention that these statutory provisions are in effect a ban upon the otherwise undoubted power of a fire insurance corporation to limit the authority with which it may clothe its .local agent at any outlying crossroads in Kansas. Corporate powers are not conferred by licensing acts. The latter are regulatory and permissive, and the grants of corporate power are to be found in the corporation law of the state. The governing body of a corporation is its board of directors. Its officers, even its president, only exercise such powers as are expressly or impliedly conferred upon them by the governing body. The corporation may create officers and agents, general and special, with broad or restricted powers, and the corporation is bound and only bound by their acts when such acts are within the real or apparent scope of the authority conferred upon them. The law of agency is a very large subject and one which could scarcely be touched in a single opinion, however much we might be disposed to display our learning on that subject. It must suffice here to say that the license issued by the insurance department to a local insurance agent, at the request of his principal, is merely the state’s permit for him to ply his business, and a tacit admission by the insurance superintendent that so far as he is advised the licensee is an honest man, or at least a man of fair business reputation. One effect of the statute — perhaps its main purpose — is to exercise the state’s right, through its superintendent of insurance, to bar a known swindler or .other disreputable or untrustworthy person from passing as an insurance agent to the detriment of the public. (Hauser v. North British & Mer. Ins. Co., 206 N. Y. 455, 42 L. R. A., n. s., 1139, 1142.)
There is no question of any secret agreement between the company and its local agent in this lawsuit.
Substantially the same point raised by the insurance department has required the attention of other courts, but none of them appear to have had any difficulty in reaching the same conclusion which we do. (Wood v. Firemen’s Insurance Co., 126 Mass. 316; Barry, etc., Lumber Co. v. Insurance Co., 136 Mich. 42; Lauze v. Insurance Co., 74 N. H. 334.)
It must be held, therefore, that a license issued by the state insurance department to the local agent of an insurance company at the company’s request is merely a regulatory permit; but neither the license itself nor the statute concerning its issue has the effect of defining the agent’s powers to bind his company, nor do they change the general law of agency.
Passing to the insurance department’s second proposition, there is nothing substantial in the contention that the insurance company violated the spirit of the antidiscrimination law when it offered to remit the part of the premium earned at the time of the default of plaintiff to pay his premium note — a matter of some $6.40. Being haled into court by plaintiff, the company might, without prejudicing its defense, have counterclaimed for that small sum. Counsel for the department expatiate on the virtues of the antidiscrimination law, to all of which the court heartily subscribes (including the writer, who vindicated that law before the court of last resort — German Alliance Ins. Co. v. Kansas, 233 U. S. 389), but neither its terms nor its spirit require its administration with such subtle nicety as counsel contend for.
The rule of reason applies to this act as to all legislation and to all jurisprudence; and the act is not offended against by an insurance company which merely forgoes its right to collect a trifling sum due it for carrying an insurance risk for seven months rather than go to the expense of reducing its claim to judgment. (Dubbs v. Haworth, 102 Kan. 603, 606, 171 Pac. 624.) Such .a judgment might be uncollectible, and the company would merely be throwing good money after bad.
We were advised in argument that the insurance rate on a three years’ contract is the sum of two separate yearly rates. If so, a person who buys and pays for a three years’ policy gets a different rate from one who buys his insurance for three years on annual policies. A man who occupies his insured property himself gets a lower rate than he would if the property were occupied by a tenant: The nature, location, etc., of property all enter into the making of different insurance rates, and this is altogether proper. These reasonable differences in rates do not violate the act. It would make a mere fetich, an interminable and oppressive nuisance, of a wise and efficient statute to interpret the antidiscrimination law in any other fashion.- So long as the defendant pursues the same general policy towards all those of its patrons who have to buy their insurance on credit, or who give notes for their insurance, there is no violation of the act; but the court does not mean to intimate that the department may not reasonably supervise and change, or suggest reasonable changes, in the general business policy of insurance companies towards persons who obtain insurance on credit and then fail to pay.
The court holds that where an insurance company contracts to carry the fire risk on property for a term of years, and the insured gives his promissory note to pay for such insurance, and the insurance contract provides that the company shall not be liable for any loss or damage that may occur to the property while the note given for the premium remains in default, it is not a substantial violation of the antidiscrimination law, when a fire loss occurs during the default of the maker of the note and while the insurance is suspended, for the insurance company in denying its liability to offer to surrender the note in exchange for a surrender of the insurance policy, without claiming any portion of the insurance earned before the insured defaulted in the payment of his note.
The former judgment of reversal is adhered to.
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The opinion of the court was delivered by
Price, J.:
During the night of April 24, 1954, the store building owned by plaintiffs, in the city of Lyons, was struck by lightning, resulting in an explosion and fire. Plaintiffs brought suit against the city to recover damages, their theory being that the explosion and fire were caused by the presence of natural gas in and under the building which had leaked from defective gas mains owned by the city. Plaintiffs recovered a judgment for $36,127.59, and the city has appealed.
For a number of years prior to the date in question Roy Avery and his mother, Lulu, owned' and operated a general mercantile store in a building owned by them in the city of Lyons. It was a two-story brick building about seventy-five years old, and was located at the northeast corner of the intersection of East Avenue and Main Street. It was twenty-five feet wide and one hundred forty feet long. A room about twenty-five feet by fourteen feet at the rear had been partitioned off and was leased as a beauty shop. There were gas appliances in the beauty shop. The second floor of the building contained apartments for living quarters. The building was so constructed that there was a space of about twenty-two inches between the ground and first-floor level.
On the date in question, and for many years prior thereto, defendant city served its residents with natural gas distributed through its system of gas mains and lateral lines. Gas mains and lines were installed in 1935. For some time prior to April 24, 1954, plaintiffs and other occupants of their building had smelled strange and unusual odors. Some were described as sewer gas and others as natural gas. City employees and a private plumber made an inspection, but it appears that no definite^ specific repairs were made. The explosion and fire severely damaged the building and damaged or destroyed its contents. The explosion raised a portion of the first floor as much as two or three feet, indicating the presence of gas under the building. On the night of the fire gas was noticed bubbling from between the paving bricks directly south of the building. Following the fire the city gas lines in the alley and street adjacent to the building were inspected and several small leaks were discovered in the rusted and scaled pipes.
Pursuant to G. S. 1949, 12-105, plaintiffs filed a timely claim with the city for damages in the amount of $45,746.75. It was disallowed and suit was brought for that amount. The jury returned a general verdict for $36,127.59 and answered special questions, and judgment was entered in harmony therewith. The special findings are as follow:
“No. 1. What was the direct and proximate cause that damaged the Avery store?
“Answer: Explosion of accumulation of natural Gas under the floor of plaintiffs building leaking from the city’s Gas Mains & resultant fire.
“No. 2. If the plaintiffs were negligent, state what such negligence consisted of?
“Answer: None.
“No. 3. If the defendant was negligent, state what such negligence consisted of?
“Answer: Failing to check the physical condition of the Gas mains. Failing to use customary and scientific devices.
“No. 4. If fugitive natural gas was present in the Avery building from what source did it come?
“Answer: City Gas mains.
“No. 5. If your verdict is for the plaintiffs, then state the amounts of the various items of damages which you allow them.
“Answer: Damage to building: $15,000.00. Damage to Fixtures: $6,-390.54. Damage to merchandise: $11,351.69. Damages for business interruption: $1,385.36. Damages for loss of good will and going concern value: $2,000.00. Total damages: $36,127.59.”
Defendant city specifies nineteen grounds of alleged error in the trial of the case and rulings on post-trial motions. We first discuss the order overruling its demurrer to plaintiffs’ evidence.
A brief résumé of the facts already has been given. Plaintiffs’ evidence in chief, as abstracted, covers some seventy-seven pages. This court has studied and considered it, but, due to the disposition being made of this appeal, it is thought that no useful purpose would be served by a detailed discussion of it. We are of the opinion the evidence was sufficient to withstand the demurrer and the trial court did not err in its ruling. (Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Richards v. Kansas Electric Power Co., 126 Kan. 521, 524, 525, 268 Pac. 847; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P. 2d 270.)
Another alleged error relates to the rejection and exclusion of evidence.
Plaintiff Roy Avery testified that the loss on store fixtures was $6,390.54, and that on merchandise $11,351.69. The jury allowed the full amount on each of those items (answer to special question No. 5, supra). Defendant city offered to show by the county clerk that exactly one month prior to the fire plaintiffs had returned personal property assessment sheets, signed by Roy, in which the fixtures were valued at $2,000 and the stock of merchandise at $6,000. This evidence was objected to by plaintiffs on the ground of not being the best evidence as to market value, and for the further reason that it did not represent market value as of the date of the fire. The objection was sustained.
In this connection, the parties refer to a number of authorities, including Iron Works v. Construction Co., 116 Kan. 482, 227 Pac. 369, and Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P. 2d 270, neither of which is particularly in point due to different factual situations.
This court, in common with everyone, of course realizes and knows that values placed on personal property assessment sheets by assessors or the owners rarely, if ever, reflect the actual market value of the property, and we have no doubt but that such was the case here. And neither do we close our eyes to the practical fact that ordinarily the value of a stock of merchandise of a going concern fluctuates from day to day and month to month. Nevertheless, it is our opinion that under the state of the record the evidence in question was admissible and was erroneously excluded. Here the values of the fixtures and stock of merchandise at the time of their damage or destruction were directly and specifically in issue. The tax assessment sheets had been signed and filed by one of the plaintiffs just one month prior to the fire. Their introduction in evidence would not have been-conclusive on plaintiffs on the question of values — they were of course subject to explanation as to the “rate” at which the property was listed, any changes or additions in the fixtures and stock in the meantime, or as to any other matter affecting the value.
In 31 C. J. S., Evidence, § 283, p. 1034, it is said that except where they are clothed with a statutory privilege against disclosure, returns for taxation, being statements of the party to be affected under circumstances in which it is incumbent on him to disclose the truth, are regarded by the great weight of authority as admissions which may be received in evidence even on the question of value.
In 20 Am. Jur., Evidence, § 385, p. 348, it is said that according to most cases the owner s valuation in rendering property for assessment is evidence of value, although some take the contrary view.
In an annotation at 17 A. L. R. 170, at p. 175, appears the statement that the owner’s valuation in rendering property for assessment is evidence of value, and it is followed by numerous decisions in support of the rule. See also the annotation at 85 A. L. R. 1485, at p. 1486.
Generally speaking, on the question of the admissibility of tax-assessment records in evidence for a purpose other than taxation, one of the principal tests appears to be whether the owner made the valuation or participated in the doing so. In the annotation at 39 A. L. R. 2d 209, at p. 230, appears the following general statement, supported by numerous authorities:
“Although, as previously indicated, assessed valuation, as such, is not generally admissible on the question of die value of property, an owner’s valuation of his own property, or a valuation in which he has participated, for tax purposes, is usually held admissible in proceedings other than tax proceedings where the value of the property is in issue, in most instances on the ground tfiat the owner’s valuation constitutes an admission against interest, where he seeks to establish a higher value for a purpose other than taxation. . .
In view of all the facts and circumstances, we think that here the personal property tax-assessment sheets were admissible and were erroneously excluded.
Another matter called to our attention is this:
Plaintiffs claimed damage to the building in the amount of $18,619.16. The jury allowed $15,000. During the trial, when asked if the building and lot were valued at $5,000 on the tax rolls, plaintiff, Roy Avery, replied that “it could be . . . around that.” He sold the lot and what remained of the building prior to the trial. On cross-examination he was asked what he had received for the lot and remains of the building. An objection to this question was sustained. Later, at the hearing on the motion for a new trial, defendant called Roy as a witness and attempted to show that he had received $15,000 for the lot and remains of the building. An objection was made to this line of testimony and in sustaining it the following transpired:
“The Court: ‘Well, I didn’t permit that testimony on the direct trial, did I?’
“Wahl: ‘That’s right.’
“The Court: 1 am going to stay by my ruling.’
“The Court: ‘. . . I am ruling that it is too late to put on the owner, the plaintiff, in regard to value of that property.’
“ ‘I think this matter now is in regard to the misconduct of the jury, as I understand it.’
“Wahl for the Defendant: ‘Yes, it is a little broader than that. It is misconduct of the jury, together with, we think misdirection on the part of the court.’
“The Court: ‘That is okay, too. The court can’t help that now.’ ”
In offering this line of testimony at the hearing on the motion for a new trial defendant was proceeding under G. S. 1949, 60-3004, but it is readily apparent that the trial court was confused as to the purpose of it, and apparently took the attitude that it was a continuation of the trial itself. Defendant was within its rights in offering this evidence which had previously been rejected, and the action by the trial court at the hearing on the motion for a new trial was clearly erroneous.
In further support of its contention that it was not accorded a fair trial, defendant also calls this to our attention:
While counsel for defendant was making his argument to the jury he was interrupted by the court, whereupon the court addressed the jury as follows:
“Mr. Reporter, you will take this: Gentlemen of the jury, this suit is against the City of Lyons, which is a municipal corporation and it is operating a public utility — gas — and it would have the same liabilities in the operation of its municipal plant that any other corporation would which was engaged in the selling of gas. There is not a corporation in existence in the United States but what is made up of stockholders that may own a certain interest in that company or that utility; and the stockholders in a company make the profit or they suffer the loss; whether it is a Municipal corporation, the Western Light and Telephone Company, the Southwest Bell Telephone Company, the company itself doesn’t have any money. It gets it by the sale of stock. It has these various people who make up all these corporations, whether they are municipal or whether they are private. Now, I have given you this instruction that counsel in their arguments to the jury are supposed to present their case to the jury, and also you will see in there that sometimes counsel in their zeal — and that means for the plaintiffs or for the defendant, may overstate or misstate the facts shown by the evidence. When you folks go in there, you are going to decide this case, not on the fact that this is a case against the City of Lyons, or the Western Light & Telephone Company, or anything like that, or the Southwest Bell; you are going to decide it on the evidence you heard from the witness stand and from the instructions as given to you by the court.”
At the hearing on the motion for a new trial defendant called one Smith, an employee of a Lyons implement company, as a witness. Smith testified he was acquainted with jurors Schmidt and Miller and that he knew they had served on the jury. He further testified that on the day following the conclusion of the trial Schmidt purchased some implement repairs from him, and that he, Smith, told Schmidt that he thought he would add twenty-five per cent to the purchase price “because you raised my taxes” in the Avery case against the city. Smith related his conversation with Schmidt, the substance of Schmidts remarks being that “the jury didn’t raise taxes,” that it was the “stockholders” who were going to pay the judgment, and that “that is the way the judge told us.” About a week later juror Miller came into the implement store and Smith made a similar remark to him about “taxes being raised” on account of the verdict in the Avery case, to which Miller replied that “the gas company was stockholders.”
Defendant also called as a witness one Brunk, who had served on the jury, and he testified as to discussion in the jury room of the question whether defendant city was composed of “taxpayers, stockholders, or what.”
In opposition to this line of testimony plaintiffs called jurors Schmidt and Miller to testify on the matter. Their version tended to show they regarded their conversations with Smith as “kidding” and that the court’s remarks had not influenced their verdict.
Plaintiffs contend the entire matter was brought about by improper argument (which is not abstracted, however) on the part of defendant’s counsel on the question of who would bear the burden of any judgment which might be rendered; that the remarks by the court were not erroneous under the circumstances, and, further, assuming they were improper, the matter amounted to> “invited error” on the part of defendant of which it may not now complain.
Despite the various contentions made, and attempts to minimize the matter, we are of the opinion that in view of all of the circumstances, including the various questions in issue before the jury, the trial court’s remarks concerning “stockholders,” and so forth, whether they be considered as an “instruction” or a mere gratuitous statement, were erroneous, had no place in the lawsuit, in all probability were calculated to have an influence on the jury, and should not have been made.
This court is well aware of the fact that many things happen during a sharply contested trial and which, isolated and standing alone, may or may not be prejudicial error, depending on the circumstances of the particular case. Also, we recognize fully the general rule to the effect that mex’e technical error’s are to be disregarded, and that error, in order to be ground for reversal, must be such as to have prejudicially affected the substantial rights of the parties to an action. This was a sharply contested lawsuit and was a very “close” case. The questions of negligence, proximate cause, and defendant’s liability, certainly were not free from doubt. We have made a careful study of the record and the various questions presented. Only a few have been discussed in detail. An examination of the entire record leads us to the conclusion it may not be said that defendant received the fair trial to which it was entitled.
The judgment is therefore reversed with directions to grant a new trial.
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The opinion of the court was delivered by
Robb, J.:
This is an original habeas corpus proceeding.
In brief, petitioner was charged in an information, tried, and convicted of the crime of statutory rape committed on the 15th day of February, 1946. He denies that he is guilty. On May 28, 1946, he was sentenced by the Lyon district court to a term of from one to twenty-one years in the state penitentiary. He has served approximately eleven years of this sentence.
Petitioner has submitted his Federal Bureau of Investigation record to this court and claims that since that record shows he was in the city jail of Emporia on February 13, 14, 15, and 16, 1946, he could not have committed the crime of rape on February 15, 1946. Thus he complains that his confinement is repugnant to both the federal and state constitutions and is in violation of due process of law. By reason of these circumstances, petitioner seeks a writ of habeas corpus from this court.
The answer of respondent sets out a general denial but admits that petitioner is in custody, as alleged, under a valid conviction and commitment for the crime of statutory rape; petitioner was represented by competent counsel (George L. Allred) and was accorded a jury trial; the sentence has not expired nor has it been commuted by the governor and petitioner is not entitled to the relief sought.
Respondent, by an abstract and brief, supplements the very limited record furnished by petitioner. It indicates that through his attorney petitioner had filed a motion for new trial, which was overruled by the trial court. The record discloses affidavits by the chief, assistant chief, and a special investigator, who were members of the Emporia police department at the time of the trial, wherein it was stated that the crime of statutory rape for which petitioner was tried and convicted was committed during the night of February 14-15, 1946; that petitioner was arrested for investigation in connection therewith and placed in the city jail of Emporia on the afternoon of February 15, 1946.
By his uncorroborated and unsupported statements petitioner. claims he was confined in the city jail of Emporia from February 13 to 16, 1946, inclusive, but the Federal Bureau of Investigation report, which was identified by a member of that Bureau and has been placed in the record of this case, shows he was confined in such city jail only on February 15, 1946.
In this type of proceeding, the petitioner has the burden of proving the grounds upon which he relies for his release (Engling v. Edmondson, 175 Kan. 883, 885, 267 P. 2d 487) and he must establish his allegations by a clear and convincing preponderance of the evidence because a judgment of conviction bears a presumption of regularity and validity. (Strong v. Edmondson, 177 Kan. 247, 277 P. 2d 585.) The rule is well established that the standard of proof necessary to justify the issuance of a writ of habeas corpus is not met by uncorroborated and unsupported statements of the petitioner. (Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397; May v. Hoffman, 179 Kan. 149, 153, 293 P. 2d 265; Phillips v. Hoffman, 180 Kan. 273, 275, 303 P. 2d 121.)
Another well-settled rule to which we are committed in this jurisdiction is that a habeas corpus proceeding is not a substitute for an appeal, and trial errors and irregularities cannot be corrected or reviewed upon a petition for such a writ. (Powers v. Hudspeth, 161 Kan. 777, 173 P. 2d 251; Richardson v. Edmondson, 179 Kan. 62, 292 P. 2d 705.) Such matters as those raised by petitioner herein are to be raised on appeal and not by a proceeding in habeas corpus. (Ferguson v. Hoffman, 180 Kan. 139, 141, 299 P. 2d 596.)
Considering the contention of petitioner in the light most favorable to him, the F. B. I. record was available to him at the time of his trial and also at the hearing on the motion for new trial (Strong v. Edmondson, supra) and the contention should have been raised by him then. He cannot wait eleven years and then raise the matter for the first time under a petition for writ of habeas corpus.
In view of the foregoing, we conclude petitioner has not shown any justification for his release on a writ of habeas corpus because the record fails to bear out his contention that he was incarcerated in the Emporia city jail at the time of the commission of the crime.
The writ is denied.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order in the lower court admitting a will to probate wherein appellants seek to have the will denied probate on the ground that undue influence was exerted upon the testatrix by the petitioner.
The appellee, Mamie E. Howard, after the death of her mother, Margaret Olive Eyman, petitioned the probate court for the admission of her mother s will to probate. The petition named all of the heirs as follows: Mamie E. Howard, a daughter, Hazel Craner, a daughter, Joseph Harvey Eyman, a son, Margaret Meier, a granddaughter, and Maynard Morris, a grandson (the latter two being the surviving children of a prior deceased daughter). All except the petitioner objected to the admission of the will to probate on the ground that the will was executed by reason of undue influence exerted upon the testatrix by Mamie E. Howard. The probate court denied probate and upon appeal to the district court the will was admitted to probate after full hearing.
After the usual provisions the will disposed of the decedent’s property in the following manner: To Margaret Meier, $100.00; To Maynard Morris, $1.00; To Joseph Harvey Eyman, “my” King Solomon Temple rug and an unimproved eighty acres; To Mamie E. Howard, an improved eighty acres together with all household furniture and effects except the King Solomon Temple rug; To Lura Cole, $300.00, to be deducted from the bequest of Joseph Harvey Eyman; and the residue to Joseph Harvey Eyman, Mamie E. Howard and Hazel Craner, in equal shares. That portion given to Hazel Craner was then set up in trust naming Mamie E. Howard trustee to serve without bond. Mamie was also named executrix, to serve without bond.
Hazel Craner, an incompetent person, is confined to an institution in the state of Colorado. She is represented by Katheryn S. Tarwater as guardian ad litem.
The appellants contend (1) That the alleged will was not executed according to law; (2) That the testatrix was not mentally competent to make a will on June 12, 1954, the date of the execution of the alleged will; and (3) That the terms of the will did not reflect the true desires and wishes of the testatrix, but were the results of undue influence exercised by her daughter, Mamie E.
Howard. While appellants admit in argument that the decedent was not an incompetent person on the date of the execution of the will, they contend she was so physically weakened and seriously ill that when coupled with the use of sedatives for medication her mental capacity was such that she was easily influenced. Their primary contention is that the alleged will was drawn under undue influence.
The evidence disclosed that Margaret Olive Eyman died on the 22nd day of June, 1954, at Independence, Kansas, a resident of Elk county, only ten days after making the alleged will, never having left the hospital at Independence, Kansas, after her admission on the 20th day of May, 1954. Dr. Porter M. Clark, an M. D., first saw the decedent in December, 1951, and treated her at the hospital in Independence early in the year 1952. Dr. Clark talked to her at that time, stating to her in effect that she was a sick woman and ought “to get her house in order.” The decedent inquired as to whether she was about to die, and upon being informed to the contrary, stated “if I’m not going to die, I’m not going to make a will.” Dr. Clark indicated that it came to his attention that the decedent had a hard time getting along with her family.
Dr. Clark again saw the decedent about a year later and again not long before her death on the 20th day of May, 1954, when she was admitted to the hospital. He then administered dilaudid, a narcotic which represses fear and anxiety, allows the patient to breathe easier and relieves hunger. On the evening of the same day which the testarix entered the hospital, morphine was administered to her but not more dilaudid. Thereafter, an eighth of a grain of morphine was administered daily as required by the patient until her death, which was caused by congestive heart failure.
On the 21st day of May, 1954, the decedent seemed worried and discussed her illness with Dr. Clark, who advised her that she should take care of her business, and that in all probability she was confined with her terminal illness. The decedent then asked Dr. Clark who could make a will for her. The doctor declined to recommend any particular attorney, but after the decedent suggested one, she related to the doctor that she did not want to use him because she was dissatisfied with the way he had handled a certain matter. The' decedent then suggested another attorney, O. L. O’Brien, of Independence, Kansas.
Mamie E. Howard, the only close relative who lived near the decedent and helped her with her private affairs, then consulted with Mr. O’Brien at his home. She informed him that her mother wanted to make a will but that she did not know what provisions her mother desired to put in the will.
Prior to the second visit of Mamie with Mr. O’Brien, the attorney himself visited Dr. Clark and asked him whether or not the decedent was mentally competent to make a will. The doctor informed Mr. O’Brien that in his opinion she was competent, but that she was a very sick woman. When Mamie called at the office of Mr. O’Brien on her second visit, she related that she had talked to Dr. Clark and her mother, and that her mother wanted Mr. O’Brien to come out and prepare a will for her. Mr. O’Brien asked Mamie if she had any idea what her mother wanted to do and she said she really didn’t know, except that she had a general idea of it. The attorney then asked for Mamie’s idea about it and then prepared a rough draft of the will incorporating some of his own ideas into the will, particularly concerning a trust for Hazel Craner, the decedent’s incompetent daughter.
On the 11th day of June, 1954, Mr. O’Brien met at the hospital with Dr. Clark where they together went to the room of the decedent. Mamie Howard was also present in the room. The decedent then related to Mr. O’Brien that she had been thinking about making a will and that Dr. Clark had told her that she was very sick. Decedent further related that she thought she ought to make a will and that it was important that she make a will because of the family situation. She commented that her daughter in Colorado, adjudicated incompetent, was her main problem. She did not want the state of Colorado to gobble up what she left to her for her care and hospital expense. She wanted to know if she could make a will to do something about that. Mr. O’Brien then read the provisions of the rough draft prepared to the decedent, and the following is his testimony on this point:
“This is the one I had drafted, . . . and when I read that clause to her about giving the hundred dollars to the one Margaret and one dollar to Maynard, why she wanted to know if that would hold. She said she didn’t want them to have any more than that because she said they hadn’t done anything for her, . . . and then the next thing that she stopped me at as I read it on down is this paragraph (c), ‘To my grandson Allan Howard, I given my Buick automobile.’ She said, . . . 7 don’t want to give him the car. I think he has got a car’, ... I said ‘Give me an idea how you want it . . And so she thought about that quite a little while and discussed it and finally she, I think she spoke to Mrs. Howard about it, too, and Mrs. Howard told her it was up to her, whatever she wanted to do with it, so ... we wound up by just leaving that, ... in the estate. . . . that was her decision, . . . and then the next clause was ‘To my son Joseph Harvey Eyman, I give, grant, devise and bequeath’ this tract of land, and she said, ‘Is that description right in there?’ Part of it had some improvements on it and the other didn’t, and she was giving him the part that didn’t have any improvements, and she questioned whether we had given him the part that didn’t have the improvements. That’s the way she wanted it, and so she and Mrs. Ploward talked about that and they decided that the way I had it in there was right at any rate we had a discussion about that.
“And then in the next clause (e) I read that, ‘To my daughter Mamie E. Howard, I give, grant, devise and bequeath the EM of the SEM 9-31-10 . . . together with all household effects . . . together with all household furniture and effects and all personal effects . . .’ and she said, ‘Well, that isn’t — that’s giving it all to Mamie, isn’t it?’ And I said, ‘Yes.’ She said, T don’t think that’s right.’ And then she said, T 'have to think of all of them, remember. And I said, ‘Well, that’s as you should, whatever you want to do. Do you want to divide the household furniture up?’ And she said, ‘Well, I want to give him [Joseph Harvey Eyman, her son] something.’ She thought about it and said she had a nice rug there that she would give him the rug. So, when I redrew the will, of course, I redrew it accordingly.
“Q'. She told you what kind of a rug it was?
“A. Yes, it was a King Solomon’s Temple rug. . . . And then (f) in this original will that I had drawn, she gave $100.00 to Laura Cole; and then she also gave her $300.00 ‘. . . which amount shall be deducted from the bequest to my son Joseph Harvey Eyman . . .’ and she said T don’t want to give her $100.00. Why should I give her $100.00? . . .’ She said T want to give her $300.00 . . .’ which her son Joe, I believe she called him, which he had agreed to pay her when they were divorced. . . . And then this clause . . . this 4 — ‘That portion of my estate given and be-quested to my daughter Hazel Craner shall be held in trust by . . . Mamie Howard . . .’ And use for the benefit of this daughter. Of course that language in there is mine. It was designed to do what she wanted to do, that is to see that she would get the use of it, but not to enable the State to take it, . . . She wanted to know if that would be effective, and I told her that was the only way I knew to do it, to carry our her desires. . . .
“One other thing that I remember she said something about;. . . . her hospital bill and so forth and said she was sick there and said she had an account ... in some bank, I don’t remember, probably Moline, . . . she said she had put that in a joint acount with Mrs. Howard so she could draw the money out to pay expenses with. I don’t think I was given any idea what it amounted to or anything, but I remember that she discussed that, so I told her goodbye and I would see her the next day. . . .”
The substance of this testimony was confirmed by Dr. Clark.
The next day at 11:00 o’clock a. m., June 12, 1954, Mr. O’Brien, after having re-drafted the will, again met at the hospital this time with Dr. Bair, who was in charge of the patient in the absence of Dr. Clark. Dr. Bair and Mr. O’Brien went to the room of the decedent. Mamie E. Howard was also present in the room with the decedent at this time. Mr. O’Brien then read the will to the decedent, paragraph by paragraph, and explained where the changes were made. He then testified:
“She said that was the way she wanted it. I remember she again reiterated about these grandchildren. She wanted to be absolutely certain that they couldn’t come in and get more than that because they weren’t entitled to anything, and I also remember that she particularly discussed this daughter in Colorado. She was very anxious that this money be kept so that it could be used for her benefit . . . Then I think I called to her attention to . . . other changes in the will that were made, . . . and we discussed them. I remember the one about the automobile. We left that out entirely. . . . Now, she wanted to know what become of it and I told her that if they didn’t agree on it it would probably have to be sold and divided up, and that’s — she went all over the will and read it all over and asked questions about it and finally said that’s the way she wanted it and she was ready to sign it.”
Dr. Bair and Mr. O’Brien then witnessed the decedent place her signature on the will, and the will was executed in accordance with the formal requirements of the law. The evidence disclosed that the decedent put her glasses on, looked the will over and signed it, and there was some jesting about how well she signed her name in bed and about the remarkably firm signature, to which the decedent responded that she had been a pretty good scribe but she wondered she could write as well as she could.
Both Dr. Clark and Dr. Bair testified that the decedent, Margaret Olive Eyman, was rational at all times and was mentally competent to make a will. When Dr. Clark returned to the hospital on the 21st day of June, 1954, following his absence from June 11th, he and the decedent discussed many things and among them she said “Well, I made it.” Then Dr. Clark said “What did you make?” and she said “The will and Dr. Bair witnessed it.”
The foregoing is the substance of the direct evidence in support of the admission of the will to probate.
The appellants produced no direct evidence to show that Mamie E. Howard exerted undue influence over her mother concerning the execution of the will. They do, however, point out the following facts which are direct evidence and tend to favor their contention:
That while Margaret Olive Eyman was confined in the hospital she was under the influence of sedatives, and that she had become both physically and mentally weak in spite of the fact that she was a woman of strong will and determination; that during the course of her hospitalization she was unable to keep more than one meal per day down, and that she lost the others by reason of her nauseated condition. The appellants emphasize that Dr. Porter M. Clark on a number of different occasions suggested that the decedent should get her house in order. Dr. Clark, however, stated that he was referring to her spiritual preparedness and not necessarily her property.
Other circumstantial facts which tend to substantiate the appellants’ position that undue influence was exerted are:
That on the 31st day of May, 1954, two checks were written bearing the signature of the decedent, otherwise written in the handwriting of Mrs. Howard, payable to the order of Mamie E. Howard, one for $1,100.00 and one for $1,500.00, each containing the notation “For material and services”; that twelve days later Mrs. Howard instructed Mr. O’Brien what to put in the will in its first draft; that thereafter on the 22nd day of June, 1954, there appeared an instrument in the handwriting of Mrs. Howard above the signature of decedent requesting the Exchange State Bank to make the bank account joint between the decedent and Mrs. Howard. This document was dated June 19, 1954, which was less than seventy-two hours before the death of Mrs. Eyman and after thirty days of continuous daily morphine injections. On the day of Mrs. Eyman’s death, the 22nd of June, 1954, Mrs. Howard cashed the two checks, both dated May 31, 1954, for $1,100.00 and $1,500.00 respectively. She immediately thereafter secured the bank statement. The cashier, H. L. Johnson, testified that by the early part of August, 1954, the bank account had been reduced from $4,304.65 to $220.31. According to the evidence the majority of this sum withdrawn from the bank went for unexplained uses.
After the funeral of the decedent, Mamie E. Howard stated to her brother “Let us hope there is a will.” She expressed a certain degree of surprise in a letter to her brother on receipt of notice of the will from some “lawyers in Independence” without naming them. Mamie then misquoted the will when she wrote to her brother on the 16th day of July, 1954, wherein she said the will left “you half the land with the rich oil pools under it and about one fourth each on the other half to Hazel and me.”
The appellants produced a witness named Viola Eyman, wife of Joseph H. Eyman, who visited the decedent at the hospital on June 14, 1954. She testified that the decedent was not keen and alert as usual and that the decedent complained “She said that she sure didn’t see why she owed Pat any $100.00, that they wanted her to give Pat the car.” She further testified that she heard Mrs. Eyman say to her husband, Joe, in discussing the will “Oh, I just signed it to get rid of them, I was so tired.” She further quoted the decedent as saying “Mamie sure has been mean to me, she stays across the hall all the time.” She further said “I hear her voice over there now.” The witness then testified that she and her husband went across the hall and there was a room full of colored people.
Ina Jualian, a niece of the decedent, who frequently visited in her home, quoted the decedent as saying “Ina, I am not going to make a will. I know the kids are going to fight over this, but just let them fight.”
Nora Sheel, a niece of the decedent, frequently visited in her home, and testified that the decedent always said she never would make a will.
Audrey Moore, a next-door neighbor to Nora Sheel, saw the decedent frequently at the home of Mrs. Sheel. On the 12th day of June, 1954, the witness was in Independence and visited the decedent at the hospital. She testified that the decedent did not know her.
On the 29th day of October, 1955, the district court of Elk county found that Margaret Olive Eyman executed an instrument purporting to be her last will and testament and that the same was duly and properly executed, published and declared to be her last will and testament in the manner provided for by the laws of the state of Kansas. The court further found that at the time of the execution of said instrument, said Margaret Olive Eyman was of full age, of sound mind and not under any restraint or undue influence whatsoever and the said instrument was in fact and truth the last will and testament of Margaret Olive Eyman, deceased, and should be admitted to probate.
The law in Kansas concerning the validity of a will under attack upon the ground that undue influence was exerted has become well established. The decisions cited in this opinion together with the authorities cited in them are almost exhaustive on the subject in Kansas. No purpose would be served to burden this opinion with an extended review. Many cases are discussed in Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, where the court said:
“To destroy the validity of a will undue influence must amount to coercion, compulsion or constraint which destroys the testator’s free agency and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own. It must be brought to bear directly upon the testamentary act, and particular parties must be benefited or disfavored as the result of the purpose and pressure of the dominating mind.”
It was said in the case of In re Estate of Smith, 168 Kan. 210, 212 P. 2d 322:
“Legitimate influence has never been regarded as improper. It is malign influence resulting from fear, coercion or any other cause which deprives a testator of his free agency in the disposition of his property that the law condemns.”
(See, 1 Bartlett’s Probate Law and Practice, [Rev. Ed.], §367, p. 430; and In re Estate of Hall, 165 Kan. 465, 195 P. 2d 612.)
The question of undue influence is peculiar in character and does not arise until after the death of the decedent, who alone fully knows the influences which have been brought to bear; the undue influence does not usually enter the formal execution of the instrument but lurks in the remote processes of the mind, thus the courts have permitted a wider range of inquiry than in ordinary litigation. (Mooney v. Olsen, 22 Kan. 69, 75.) In this connection, evidence concerning sedatives which were administered to the patient and the manner in which they affect the mind, as distinguished from one whose physical condition is normal, is proper. (Gilpin v. Burch, 145 Kan. 224, 65 P. 2d 308; and Smith v. Salthouse, 147 Kan. 354, 76 P. 2d 836, 57 Am. Jur., Wills, § 94, p. 101.)
This case was fully tried in the lower court with all these legal principles fully understood by the court and parties litigant. The burden of proof is upon the parties attacking the will of a person of sound mind on the ground of undue influence. All that is necessary is that the evidence produced shall preponderate over the evidence adduced and the presumptions prevailing on behalf of the proponent of the will. In making proof the parties attacking the will are not limited to the bare facts which they may be able to adduce, but they are entitled to the benefit of all inferences which may be legitimately derived from the established facts. (Ginter v. Ginter, supra; Colvin v. Colvin, 128 Kan. 691, 280 Pac. 763; and In re Estate of Harris, 166 Kan. 368, 374, 201 P. 2d 1062.)
In Colvin v. Colvin, supra, under circumstances somewhat similar to those involved in the present case, the jury heard the testimony, saw the witnesses and found that undue influence was exercised over the decedent in the execution of the will, and this court in reviewing the evidence held that on appeal their only function was to determine whether or not there was sufficient evidence to support such a finding.
The law controlling our decision in this case is set forth in Gilpin v. Burch, supra, where syllabus one reads:
"In an action to contest a will because the testator was unduly influenced in the preparation and execution thereof and because he lacked testamentary capacity when it was executed, where the trial court found from conflicting testimony that the testator was not under any mental restraint or undue influence and that he possessed mental capacity to execute a will and understood and knew the nature and quality of his act, including the/extent of 'his property and the natural recipients of his bounty, and such findings are sustained by sufficient competent and substantial evidence, the findings are conclusive on appeal.”
From an examination of the record in its entirety, and careful consideration of all arguments advanced in support of the contentions entitled to appellate review, we are convinced this is primarily a fact case where the basic complaint is that the appellants’ evidence, and not the appellee’s, should have been accepted by the trial court. On many occasions a reading of the cold printed record would seem to lead to a conclusion different from that found by the trier of the facts. It may be added that if it were our province to weigh the evidence and pass upon the facts, we might be impressed by the evidence and arguments advanced by the appellants with respect thereto. That, however, is not the test. As it is, since the trial court resolved those facts against the appellants upon controverted but nevertheless substantial competent evidence, our duty is to uphold the judgment and it is so ordered.
The judgment is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellant) brought this action in ejectment and for possession of a section of land in Phillips county. Defendant (appellee) answered by a general denial and filed a cross petition for damages containing two causes of action.
Defendant alleged in his first cause of action that he had entered into a contract with the owners for the purchase of the property and that plaintiff, knowingly and without justification, induced the owners to breach the contract.
Defendant alleged in his second cause of action that he discussed the contract with Floyd Keesee, a real estate broker, and that he hired Keesee as his agent to obtain a loan for the purchase of the land, entrusting him with confidential information concerning defendant’s previous negotiations. He further alleged that plaintiff prevailed upon Keesee to also act as his agent in purchasing the same property from the owners.
Roth causes of action alleged that plaintiff damaged defendant by inducing the owners of the land on which defendant was tenant to sell the property to plaintiff, thus breaching defendant’s contract of purchase. The case was tried to a jury.
The facts may be briefly summarized as follows:
The land in question was owned by J. G. Bovey and Ada Wilkins. Bovey, with authority from Mrs. Wilkins, was in charge of selling the property. In 1946, defendant rented the land through Mrs. Wilkins and has since been a tenant in possession. Defendant had been attempting for some time to purchase the land from Bovey and had been trying to secure a loan for that purpose through Floyd Keesee, a real estate broker. On November 1, 1955, Bovey wrote defendant that if he wished to purchase the land the price was $20.00 an acre ($12,800.00), with a reservation of five percent of the mineral rights and $1000.00 to be placed in escrow, but he would not sell until after January 1, 1956 for income tax reasons. On January 16, 1956, defendant called Bovey on the telephone and told him he would take the land on Bovey’s terms, but that the $1000.00 escrow payment was to be returned to defendant in the event he failed to complete his loan for a part of the purchase price. Bovey agreed and stated, “I have sold you the land.” Defendant had the mentioned agreement typed, with the agreed terms of the contract embodied therein, signing and mailing the original and two copies of the same to Bovey for his and Mrs. Wilkins’ signatures. On January 20, defendant saw Keesee and told him he had accepted Bovey’s offer to sell the land and asked Keesee to go ahead with the loan.
Thereafter, on January 27, plaintiff, being well acquainted with the Bovey place and owning land in the immediate vicinity, went to Keesee’s office relative to the purchase of this property, asking him if the place had been sold. Plaintiff testified:
“He [Keesee] said he didn’t know, possibly was, at some time past, O’Neill [defendant] had tried to get him to negotiate a loan for him and he was unable to get it through. He told me that before we telephoned. After this conversation, I ask[ed] Keesee to call Bovey to see if the land could be bought. He called out there to Bovey and talked about the deal. The upshot of that conversation is that I made arrangements to buy this land for $14,000.00.”
Plaintiff further testified that he did nothing to determine from defendant whether the negotiations for the loan for purchase of the property had terminated.
The jury returned a general verdict in favor of the defendant for $1200.00 and, in answer to special questions submitted to it by the trial court insofar as they are pertinent hereto, found that defendant agreed to buy the land from Bovey under the terms and conditions agreed upon, and so advised Keesee on January 20, 1956; that plaintiff knew Keesee had been trying to negotiate a loan for defendant on the Bovey "place and did not inquire of defendant whether he had terminated his relationship with Keesee; that Keesee was acting adversely to the interests of defendant when he called Bovey and arranged for plaintiff to buy tire property; and that the actions of Keesee resulted in the land being sold by Bovey to plaintiff.
From an order overruling plaintiff’s motion for a new trial, he appeals, and states that his grounds of error are limited to defendant’s first cause of action.
Plaintiff first contends that the evidence was insufficient to show him guilty of any wrongful or unjustifiable conduct for the reason that he had Keesee contact Bovey by telephone and was advised that the land was for sale; also, he had a right to rely on that information.
We do not think the matter is that simple. The evidence in the case disclosed that both plaintiff and defendant lived in the same neighborhood; both were engaged in the farming and cattle business; plaintiff knew that the defendant had been a tenant and in possession of the Bovey place since 1946. Plaintiff was advised by Keesee that the land was possibly sold and that defendant had been negotiating with Bovey for the purchase of the land and that Keesee had been acting as agent for defendant. Keesee knew defendant had entered into a contract with Bovey to purchase the land for $12,800.00. The evidence further disclosed that plaintiff had his agent Keesee call Bovey and ask him whether the land could be bought — not whether it was for sale or had been sold. Then, through Keesee he bid $14,000.00 cash, which was $1200.00 more than defendant’s contract of purchase. Keesee also knew or had reason to know that when he made the telephone call to Bovey on January 27, at plaintiff’s request, he was acting adversely to the interests of defendant. With all such knowledge, plaintiff failed to ascertain from his neighbor (defendant), who was in possession, whether he had contracted for or had purchased the property. Defendant’s possession under the mentioned facts was sufficient to put plaintiff on notice that defendant had some claim to the property. Therefore, plaintiff is in no position to say that he purchased the land in ignorance of defendant’s contract of purchase or that his acts were not wrongful or unjustifiable under the facts and circumstances shown in the case. The open and notorious possession of real property ordinarily is constructive notice to those dealing with the property of the rights of the one in possession. (Haas v. Nemeth, 139 Kan. 252, 31 P. 2d 6; Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 157 P. 2d 805; Harvester Co. v. Myers, 86 Kan. 497, 121 Pac. 500.) This and other evidence in the record, both oral and documentary, not herein narrated was sufficient to go to the jury on the question of whether plaintiff’s actions were wrongful and unjustifiable under the circumstances.
Plaintiff’s second contention is that the mentioned contract between defendant and Bovey contained a reservation that the $1000.00 to be put in escrow would be returned to defendant on his failure to obtain a loan for part of the purchase price; that, thus, the contract lacked mutuality and was therefore invalid and furnished no cause of action for damages against plaintiff for causing the breach thereof.
The trouble with plaintiff’s contention is that he was not a party to this contract. Such a contention might have been important if one of the parties to the contract had refused to perform. The weakness of plaintiff’s argument is that the contract was not subject to collateral attack by him or any other third party. The contract was valid- for all purposes except as a basis for an action to enforce it. Plaintiff cannot make lack of mutuality of the contract, to which he was not a party, available as an excuse for his wrongful and unjustifiable conduct, nor can he escape the consequences of his wrongful intermeddling, since such conduct interfered with and prevented the consummation of the sale of the land to defendant. (Vaught v. Pettyjohn & Co., 104 Kan. 174, 178 Pac. 623; Powell v. Powell, 172 Kan. 267, 270, 239 P. 2d 974, and cases therein cited.)
Plaintiff states he does not want a new trial but is asking this court to set aside the judgment rendered for the defendant and to enter an order directing that the trial court render judgment in favor of the plaintiff for costs. In view of what we have said on the issues raised by plaintiff, we are compelled to affirm the judgment. It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This action to construe a testamentary trust was commenced in the probate court and transferred to the district court where an order of construction of the trust was made, from which order a co-trustee, who is also a beneficiary of the trust, has appealed.
The first question to be solved on appellate review is whether an order of final distribution made and filed by the probate court on July 31, 1951, was res judicata to the action which is now before us. That order was made as a result of an application therefor filed by Ellis M. Carr, who was then the executor of the estate of the testator. In the opinion of the trial court the order of final distribution was res judicata because of the rule against perpetuities, which rule we will hereinafter discuss.
The order of final distribution made by the probate court substantially set out that Catherine Rillings and Frances Woods, who were the only heirs at law of Harry L. Woods, deceased, and were also devisees, legatees, and trustees under his will, had waived notice of hearing of the application of the executor; that certain personal and real properties were found to be assets of the testator s estate; the court construed the will and found that the testator gave, devised and bequeathed his entire estate to Ellis M. Carr, Frances Woods, and Catherine Rillings as trustees, and to their successors in trust, with such duties, limitations and directions as were set forth in the will; the court found there was no further business to transact in the administration of the estate and final distribution should be ordered; that all personal and real properties were vested in Ellis M. Carr, Frances Woods, and Catherine Rillings, as trustees of the estate of the testator, and the executor was to be discharged when, as directed, he had assigned all the assets of testator s estate to such trustees.
It is undisputed that this order was a proper exercise of power by the probate court at the time. While it is true that the probate court in its order used the word “construe,” it is also quite apparent the only construction made of the will was that legal title to the assets of the testator’s estate was vested in the trustees with such duties, limitations and directions as were set forth in the will.
There were certain equitable life estates carved out of the assets of the testator’s estate, which will be discussed later in more detail. No one contends that the trusts created for Frances Woods and Catherine Rillings during their respective lives were invalid. It will be seen that Frances was testator’s widow and Catherine was their daughter. We find a very similar trust provision in the case of Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200, where a trust for the benefit of testator’s daughters for life was held to be a valid trust even though a later provision for the benefit of granddaughters who attained the age of twenty-five years was held to be void because it was in contravention and violation of the rule against perpetuities.
Appellees contend that the order of the probate court finally and for all purposes construed the entire will and since no appeal was taken therefrom that such order was res judicata to this action by Catherine, one of the co-trustees, for direction as to how to proceed, and by her individually as beneficiary to determine her rights as such. We can find nothing in the order of final distribution made and entered by the probate court that went beyond the vesting o£ legal title to the assets of testator’s estate in the trustees as above stated.
To be more specific as to what Catherine is seeking, her petition in substance asks for a 'determination of her beneficial interest, as an individual, and for clarification and directions of the court as to the duties and obligations of the trustees, and of her duties and obligations as a co-trustee, in executing the provisions of the testamentary trust.
At this point we should explain that the will provided for the appointment of a successor to Ellis M. Carr, co-trustee, now deceased, and O. H. Sanner was subsequently appointed. The will further provided that no successor was to be appointed upon the death of either Frances or Catherine. In other words, there were three original trustees but ultimately there will be only one. Frances died July 13, 1954, and the trust for her benefit and her tenure as trustee have, of course, expired. This leaves us with only Catherine and Sanner as co-trustees and a controversy exists between them as to the meaning of the provisions of the testamentary trust subsequent to the death of Frances.
■ In our opinion the trial court incorrectly determined the issue of res judicata because in trust matters a court retains jurisdiction to manage the trust and control the trustees. (G. S. 1949, chapter 59, article 16; In re Estate of Lowe, 155 Kan. 679, 687, 127 P. 2d 512; 2 Rartlett’s Kansas Probate Law and Practice, rev. ed., § 932.) The probate code enacted by the legislature in 1939 empowered the probate courts of Kansas with equity jurisdiction so that under the general rule such courts have a capacity equivalent to a universal trustee. Jurisdiction may be exercised by the probate court over the administration of a trust upon an application of a trustee for guidance where necessary for his protection. On such proper application a trustee may ask directions of a court as to the construction of a trust instrument, as to the proper method of administration of the trust — if construction thereof is difficult — or as to what persons are entitled to the benefits. Where a trustee has real doubts to be solved he not only may, but for his own protection should, seek the court’s guidance. (54 Am. Jur., § 276, et seq., pp. 219-224.)
This court has previously passed on the question of the jurisdiction of the probate court and its power to supervise trust estates under our present probate code. In In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520, it was said:
“The new Kansas Probate Code (G. S. 1945 Supp.,- eh. 59, art. 3) not only specifically confers jurisdiction upon the probate courts to administer trusts but makes ample provision for their supervision, direction and control.” (Syl. ¶ 4.)
To hold otherwise than above stated would be inconsistent with the general rule, and with the same rule laid down and adhered to by our own statutes and decisions. When a trustee comes into court and asks for directions, as was done here by Catherine, he is not precluded from so doing by an order of final settlement such as was made by the probate court in this case which carried out only the placing of legal title in the co-trustees to carry out the trust.
The cardinal principle for the construction of a will is that it must be in conformity with the intention of the testator as that intention is gleaned from the four corners of the instrument when all provisions of the will are considered without deleting any part thereof (Diver v. Hendrix, 178 Kan. 253, 257, 284 P. 2d 1080), but prior to further discussion of that matter, it may be well to note the type of person the testator here was and what some of his everyday activities were since he was the scrivener of his own will. Harry L. Woods was owner, editor and publisher of the Wellington Daily News for forty-eight years and as such was a careful and accurate user of the English language. He was quite active and was extremely interested in the civic affairs of Wellington. He had assisted in the acquisition to the city of Woods Park, containing municipal park, golf and swimming pool facilities, which had been pasture land belonging to the estate of his parents. The park was named after testator and surrounded block 13, Fultz and Millard’s addition on three sides. Testator was one of three organizers of the Wellington Foundation and was very active therein until the time of his death. He was also an attorney, he had practiced law as a member of a well-known firm in Wellington, and was at one time county attorney of Sumner county. Daily visits were made by testator to Woods Park. He was chairman of the Wellington park board for many years and maintained active personal supervision of both Woods Park and East Park in that city. Prior to his death testator had long made plans and collected materials for the beautification and improvement of the Wellington parks.
With this brief background of the man whose will is being considered, we now set out all parts of that instrument which are pertinent to the determination of our two remaining questions:
“b. It is my will and I hereby direct that the entire annual net income from the trust estate be paid to my wife Frances Woods as long as she shall live and I hereby give and bequeath said entire net income of said trust estate to my said wife as long as she shall live. Upon the death of my wife, if my daughter Catherine has survived 'her, it is my will and I hereby direct that if and when my said daughter’s personal funds become depleted, from that time on the entire net income from said trust estate be paid to my said daughter Catherine as long as she shall live and I hereby give and bequeath said entire future net income of said trust estate to my said Catherine as long as she shall live.
“c. It is my wish and will that as soon as possible after the death of my wife and daughter the residue of my estate shall be turned into cash and used to improve the Wellington public parks and playgrounds in the following manner:
“(1) By purchasing and deeding to the city of Wellington any property in Block 13 Fultz and Millard’s Addition as rapidly as it can be obtained at a fair price;
“(2) By purchasing and deeding to the city of Wellington any lots facing the north side of Harvey Avenue between Hargis Creek and the west side of Cherry Street; thus to add to the beauty and usefulness of t'he Sellers-Community Park.
“(3) The Wellington Foundation, Incorporated, was granted a state charter in 1947 and duly organized. How well it will function cannot be known at the time this will is made. At the death of the last of my two survivors, my wife and daughter, it is my wish that the management and prospects of The Wellington Foundation, Incorporated, be carefully studied by my then executor. If, after such careful study my executor is convinced that all funds coming into its treasury will be safely and prudently administered in the public interest, it is my wish that any remaining funds in my estate be transferred to such Foundation, either in toto or by lesser sums to be transferred to such Foundation, in annual installments, as his judgment may dictate. Should any of my estate be transferred to the Foundation, and should Wellington have acquired in the meantime a college or junior college, it is my wish that any remaining funds in my estate, after the purchases mentioned in sections 1 and 2 above, be used to foster and promote the work of such college. If, after careful study, my executor should not believe that funds transferred to the Foundation would be safely and prudently administered, it is my wish that the funds, if any remaining be used by my executor in any manner thought desirable for the improvement of Wellington parks and playgrounds.
“d. — While it is my desire and hope that my estate shall remain undiminished and that only the net income therefrom shall go first to my wife, and after her death to my daughter, under the conditions stated, the entire estate then to add to the recreational facilities of the citizens of Wellington, I am not unmindul of a changing world and its many disappointments. Wherefore it is my will and desire that throughout their lives my wife and daughter shall possess all the necessaries and such luxuries as they have, generally speaking, grown accustomed to during my life, and if after my death the income from the trust estate shall fail to fully provide such necessaries, comforts, and luxuries, it is my will and desire that there shall be paid to my wife during her lifetime out of the funds of my estate any additional sums above the annual income, needed for her comforts and even for any desired luxuries. And the same generous treatment is to be given my daughter Catherine after my wife’s death, if there should be need after considering her own separate resources and income, a full report of which should be given at any time asked by my executor.
“e. — To my executor and to his successors, if any, I make it plain that the essence of this testament is that the funds in my estate are to be used first to provide for the comfort and happiness of my wife, Frances Woods, during her lifetime, and after my wife’s death to provide for the comfort and happiness of my daughter, Catherine Billings. That in case either shall become mentally or otherwise incapacitated, she shall be constantly provided with the upmost in care, comfort, and medical attention. And to effect these requirements I direct that the funds of the estate be applied without stint or quibble. This is my living responsibility and I direct that it be continued after my death to the last penny of my estate, if necessary to serve my wife, whose active, intelligent and self sacrificing help in building that estate is hereby gratefully and lovingly acknowledged.”
Catherine contends there has been sufficient compliance with the condition of the testator’s will “. . . that if and when my said daughters personal funds become depleted . . .” to entitle her to share in the net proceeds from her father’s estate. From the evidence introduced before the trial court it was concluded, as is contended by appellees, that Catherine’s funds had not become depleted and as a result she was not entitled to share in the net proceeds as Frances had shared during the latter years of her life after testator’s death. We are inclined to disagree with the trial court on this point for the reason that too narrow a construction was placed on the condition. As has often been said, the intention of a testator must be determined from the whole will — from the four corners of the instrument. (Walker v. Koepcke, 177 Kan. 617, 622, 282 P. 2d 382; Diver v. Hendrix, supra.) Had the will stopped with subparagraph 5 (b), such a conclusion as that reached by the trial court may have been more tenable but the further provisions of subparagraph 5 (d) and the early part of subparagraph 5 (e) make it clear that Frances and Catherine were to possess all the necessaries, comforts and such luxuries as they had, generally speaking, grown accustomed to during testator’s life. From testator’s many achievements during his lifetime, it must be recognized that he was fully cognizant of the legal, as well as the grammatical, significance of the terms used in his will. Courts dealing with instruments so drawn are obliged in most instances to construe the terms thereof in accordance with their technical meaning. (Householter v. Householter, 160 Kan. 614, 617, 164 P. 2d 101.)
Without detailing the lengthy testimony included in the record, it is quite evident that Catherine’s financial status, her comfort and the luxuries to which she had become accustomed during the lifetime of her father were less when her funds became depleted. Appellees agree that depleted as used did not mean that Catherine would be forced to spend her last penny or be a subject for charity before she could share in testator’s estate. It is definite that if such a thing as this were to happen, she would not only share in the net income but could well use up the corpus of the estate without stint or quibble, under subparagraphs 5(d) and 5 (e) of testator’s will.
The trial court, in substance, found that Catherine should have the income, as well as the principal, provided her finances were “depleted”; that Catherine had assets in excess of $50,000 and testator fully realized her condition when executing his will so that “depleted” was used to denote when Catherine’s estate was fully used, or used to the extent there would be a question as to her having and living in the manner in which she was accustomed to live and did not mean when a portion of the estate of the daughter was used. Hereby the trial court itself realized that it would be sufficient if Catherine’s estate was used to the extent there would be a question as to her having and living in the manner to which she was accustomed but it qualified that determination by tacking on a meaning that could only meet the definition of exhaust. The only evidence before the trial court on the word exhaust was that it is not a synonym of deplete and that only a few very modern writers use the words synonymously.
Appellees submit the following meaning of deplete, and we think it is an apt one in this case,
“Deplete is often used as though it implied merely a reduction in numbers, in quantity, or the like; discriminating writers or speakers, however, employ it only when they wished to suggest the potential harm of such a reduction or the impossibility of restoring what has been lost before such consequences are evident.”
The record shows that Catherine was a woman past sixty years of age. She had lost access to the use of two automobiles and had lost income from her employment in the sum of approximately $45.00 per week. These were some of the facts which showed what she was accustomed to during testator’s life that she did not have at the time of Frances’s death. With this in view, we refer to sub-paragraph 5 (d) of testator’s will in regard to reports of Catherine’s own separate resources and income which are to be given by her to the executor at his request. Without making this portion of the will ineffective, we must consider that the testator intended to provide Catherine with that part of the net income of his estate necessary to provide protection against her losing those necessaries, comforts or even luxuries to which she was accustomed during his lifetime. It would be ridiculous to say at Catherine’s age that restoration of these things would be merely a matter of course. It would seem harsh to say that Catherine’s funds had to be entirely used up and when they were, then immediately restore her to the level of living to which she was accustomed during the lifetime of her father. This system would be like a double-edged sword because it would work a hardship on Catherine while she was losing everything and then it would really diminish the assets of the estate when her position, as intended by testator, was re-established. A woman of Catherine’s age would not be able to recoup those things which she might lose from time to time, and we think it was never the intention of her father that the executor-trustee should have the power to do what he is here attempting to do. Otherwise, the testator would have had no reason to make Frances and Catherine co-trustees. The executor-trustee had a duty to see to two things: First, that Frances, and second, that Catherine were maintained in their respective positions in life, as set out in the will. If the executor did not do this, either or both of them could come into court in the capacity of co-trustee, exactly as Catherine is doing here, and the court then had the duty to carry out the intention of the testator under the terms of his will. This the trial court failed to do. If the executor-trustee believes that Catherine may not need the entire net proceeds from the testator’s estate, the will provides a method for him to determine what she does need. From the appearance of things on the surface the executor-trustee is totally ignoring testator’s use of the term “without stint or quibble” and is at least quibbling over what Catherine needs — if he is not trying to stint her. We can see no other result to this phase of the lawsuit than that Catherine is entitled to the net proceeds of testator’s estate and if the executor-trustee is of the opinion that such a share is too large, then it is his right to request, and her duty to furnish, a report so that it can be determined by the executor-trustee, and in turn by the court, to what sums she is entitled from time to time to keep her in that position in life intended by the testator.
We are finally confronted with the problem of what is to become of the estate after Catherine’s death. Appellees contend they take under the will while Catherine contends that the gift over to ap pellees violates the rule against perpetuities and is, therefore, void. Catherine’s theory would place the ownership of the entire estate in her as the sole surviving heir at law of her father.
The terms of this will are explicit. Our rule of law is quite plain and we need no further rules of construction, such as the doctrine of cy pres mentioned by the parties, to determine the intention of the testator. True, one may not be able to arrive at the full pur-port of this will with a single cursory examination, but when studied and analyzed, its terms are clear.
The very idea of a life estate presupposes a fee existing elsewhere than in the tenant for life (Alexander v. Goellert, 153 Kan. 202, 205, 109 P. 2d 146) and we recognize that after the life estates in trust for Frances and Catherine terminate, then the trust in favor of appellees takes effect unless Catherine’s contention that it violates the rule against perpetuities is correct.
In subparagraph 5 (c) of the will the testator made it clear that the cash derived from the sale of the assets of his estate was to be used to improve the Wellington public parks and playgrounds in the manner set out in sections (1), (2), and (3) of subparagraph 5(c). Under subparagraph 5 ( d) the entire estate, after the deaths of Frances and Catherine, was then to be used “to add to the recreational facilities of the citizens of Wellington.” Wellington had public parks, playgrounds and recreational facilities for its citizens at the time of testator’s death and it still has them so far as the record discloses.
The rule against perpetuities has been stated many times and in In re Estate of Davis, 171 Kan. 605, 237 P. 2d 396, it was again set out as meaning that no future interest in property can lawfully be created which does not necessarily vest within twenty-one years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre sa mere.
Broadly stated, the rule against perpetuities is grounded traditionally on a farsighted public policy which frowns on the total exclusion of property from commerce for long periods of time and is supported by the practical needs of modern times (Lasnier v. Martin, 102 Kan. 551, 554, 171 Pac. 645); it governs both legal and equitable interests, and interests in both realty and personalty. (Gray, The Rule Against Perpetuities, 4th ed., § 202, p. 192.) In Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, this court set out the rule that no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested. Courts are inclined toward a construction favorable to the early vesting of an estate so as not to defeat the intent of the testator but there must necessarily be a vesting within the limits of the rule against perpetuities. (Klingman v. Gilbert, 90 Kan. 545, 548, 549, 135 Pac. 682; Tretbar v. Aged Ministers Home, 180 Kan. 18, 21, 299 P. 2d 58.)
An estate vests in possession when there is an accrued, fixed and indefeasible right to present enjoyment while an estate vests in interest when there is a present accrued, fixed and indefeasible right to enjoyment at a future time. (McEwen v. Enoch, 167 Kan. 119, 123, 204 P. 2d 736.) Thus it is noted that unless a contrary intention clearly appears in a testamentary instrument, an interest will be regarded as vested rather than as contingent. (In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707.) For a more thorough discussion and comparison of contingent and vested remainders, see McLean v. Stanley, 134 Kan. 234, 5 P. 2d 839. There a vested remainder was said to exist when a present interest passes to a certain and definite person but is to be enjoyed in the future, while a contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event, (p. 239.) Attention is also directed to Faris v. Nickel, 152 Kan. 652, 107 P. 2d 721, for a similar discussion and comparison.
An estate may properly vest within a life or lives in being irrespective of how long possession and enjoyment of the property may be postponed. (Klingman v. Gilbert, supra.) The rule against perpetuities has reference to the time within which title vests. A vested interest does not necessarily include a right to possession and if the title is vested, the interest is not subject to the rule however remote may be the time when it may come into possession. (Goetz v. Goetz, 174 Kan. 30, 38, 254 P. 2d 822; In re Estate of Sheets, 175 Kan. 741, 745, 746, 267 P. 2d 962.)
Appellant, relying on the gift over being contingent and therefore in violation of the rule against perpetuities, cites Malmquist v. Detar, 123 Kan. 384, 255 Pac. 42, where the title vested in the governing board of a hospital if a hospital were established. No hospital was established nor was there any evidence that one would ever be established when testator died so the gift was held void. She also cites Watrous v. Limbocker, 140 Kan. 154, 157, 33 P. 2d 938, where title vested in a beneficiary contingent upon the failure of the existence of a religious organization and the provision was held void. Other cases were cited but they cannot control here because they presented true contingent remainders that were never likely to vest in title within the prescribed time.
The title received by the citizens of Wellington vested at the death of the testator and the enjoyment of possession was only retarded until the deaths of Frances and Catherine. We are committed by our many pronouncements on the rule against perpetuities and we must, therefore, conclude that the title involved here was vested and was not in violation of the rule.
The equitable interest determined to be vested in the citizens of Wellington cannot be determined ineffective because the use might be in perpetuity. The case of Curtis v. Board of Education, 43 Kan. 138, 143, 144, 23 Pac. 98, involved the granting of a lot for the erection of a school building thereon and for no other purpose. This was merely a limitation upon the use and had no effect as a condition precedent or subsequent and title to the lot vested when the school building was built. Another case is Schnack v. City of Lamed, 106 Kan. 177, 181, 186 Pac. 1012, where it was held a grant of a residuary estate to a city to be used for public park purposes vested the property in the city with merely a limitation as to its use. Treadwell v. Beebe, 107 Kan. 31, 38, 39, 190 Pac. 768, involved a use by everybody in Anthony, Kansas, who needed and deserved relief from cold and hunger, together with an additional use for the assistance of any person anywhere suffering from cancer in its early stages. It was there determined that a public trust had been created and legal title vested in the trustee for the public, charitable use prescribed in the will. Thus it can be seen that a limitation on use which may be in perpetuity cannot be considered as a condition precedent or subsequent to destroy a vested interest and thereby make it violative of the rule against perpetuities.
As suggested, each particular will providing a charitable trust must be examined to determine whether it be a particular or a general charity since it must be frankly conceded there is lack of harmony in the decisions as to what constitutes an intent to create a general charity or a particular charity. (Shannep v. Strong, 160 Kan. 206, 214, 160 P. 2d 683.)
We are bound by the rule stated in In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520.
“. . . charitable trusts are favorites of the law which must be upheld whenever possible, and . . . once it has been determined a will contains language creating such a trust other language to be found therein which is susceptible of more than one construction must be liberally construed for the purpose of carrying out the intention of the donor.” (p. 100.)
See, also, Simes and Smith, The Law of Future Interests, 2d ed., § 1279, p. 218; Gray, The Rule Against Perpetuities, 4th ed., § 607, p. 581.
Attention should also be directed to the case of Hollenbeck v. Lyon, 142 Kan. 352, 356, 358, 47 P. 2d 63. There a will devised a life estate in the income from certain real property to a named beneficiary after which it was to be held in trust for the use and benefit of the needy poor in and around Abilene. This court determined (1) the trust was vested in a trustee to be administered for the specific charitable purposes testatrix had in mind; (2) the remainder was vested in a charitable trust which was not void because of the indefiniteness of individual beneficiaries; and (3) there was no reason to hold such a worthy disposition of property to be invalid.
The parties raise the question of precatory and mandatory words and without dwelling at length thereon we deem it sufficient to refer to discussions already contained in our reports. (Diver v. Hendrix, supra; In re Estate of Charowhas, 181 Kan. 322, 310 P. 2d 947, this day decided.)
We mention in passing that an objection was raised because the trial court allowed certain amendments to the pleadings but there was no prejudice shown thereby and we will not disturb the ruling on appeal since such matters are left largely to the discretion of the trial court. (Badders v. Checker Cab Co., 118 Kan. 125, 130, 234 Pac. 41; Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219.)
' While appellant relies on those parts of the will contained in section (1), (2), and (3) of subparagraph 5 (c) as being in contravention of the rule against perpetuities, we can only say that the law as stated In re Estate of Porter, supra, is directly contrary to such theory. Especially is this true since we can see no other determination, in view of what has been herein said, than that the testator created a life estate in trust to Frances; at her death a life estate for Catherine; and at Catherine’s death a general and public charitable trust for the citizens of Wellington to be used for the improvement of the public parks, playgrounds and recreational facilities of that city. The legal title vested in the co-trustees at testator’s death and the beneficiaries were vested- with the equitable title at testator’s death, so that in nowise was the rule against perpetuities violated. The trusts created were therefore valid. (See, also, Gray, The Rule Against Perpetuities, § 678, p. 630.)
We are appreciative of the very excellent briefs submitted by counsel for both parties. The briefs were well prepared and when considered in conjunction with the record furnished us, they display a thorough treatment not only of the case but also of the authorities relative to the issues raised therein.
The judgment of the trial court is affirmed as to its determination of the validity of the general and public charitable trust to the appellees. It is modified as to its determination of the question of res judicata and also as to its determination of the equitable interest of Catherine. With respect to its order regarding Catherine’s beneficial interest, the trial court is directed to make an order that will carry out the intention of the testator, as shown by the terms of the will and in keeping with the rulings in this opinion.
Price, J., concurs in the result.
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The opinion of the court was delivered by
Wertz, J.:
This action was brought to compel the City of West-wood and its governing body, defendants (appellants), to issue a building permit to Hudson Properties, Inc., plaintiff (appellee), for construction of a service station in that city. The service station was to be built on property already zoned for retail business with specified uses, including “gasoline and oil service stations.” After the city council denied the plaintiff’s request for a permit, this action was filed and it resulted in judgment in plaintiff’s favor.
The parties stipulated that the proposed building met the minimum standards for construction in the City of Westwood and that it violated no city ordinance. Since the defendants have abandoned their first and fourth specifications of error and in view of the stipulations, the only question for our determination is whether the ordinance on building permits sustains defendants’ position.
It is contended the Ordinance No. 5, Section 13, of the defendant city was a sufficient basis for denial of the permit. Applicable portions of that ordinance are:
“No such permit shall be issued for any building, structure or construction unless the same be in conformity in every respect with all of the provisions of the Zoning Ordinance of the City of Westwood, and in conformity with existing buildings, structures and construction in the adjacent area.
“. . . If in the opinion of the Governing Body the building for which a permit is applied would be detrimental to the value of the surrounding property, or incompatible with the surroundings, or if for any reason in the opinion of the Governing Body such building, structure or alteration would be in violation of any of the provisions of the Zoning Ordinance, then the application for such permit may be denied and the reasons thereof stated.” (Emphasis supplied.)
This ordinance is invalid because it fails to establish a uniform standard for its application, in that “the Governing Body” is made the final arbiter of property rights. This is an attempt to confer arbitrary power on the governing body of the city and is void. We held in Smith v. Hosford, 106 Kan. 363, Syl. ¶ 2, 187 Pac. 685:
“An ordinance which puts it in the power of the officers of a city to grant a permit to build a garage, or to refuse such a permit at will, is unconstitutional and void, because it assumes to clothe such officers with arbitrary power to be exercised merely at their will or caprice, whether they are disposed so to exercise it or not.”
See also Julian v. Oil Co., 112 Kan. 671, 212 Pac. 884; and Kansas City Terminal Railway Co. v. City of Kansas City, 173 Kan. 473, 249 P. 2d 671.
Contrary to the stipulation between the parties, defendants contend that the building does not conform with existing building or structures in the adjacent area and is detrimental to surrounding property and would create a traffic hazard. The trial court, upon the presentation of sufficient competent evidence regarding these matters, determined such issues in plaintiffs favor. They will not be disturbed.
Another argument made by defendants is that plaintiffs application for a building permit signed “Hudson Oil Co. by A. B. Hudson, Agent” did not reveal the relationship of A. B. Hudson and the Hudson Oil Comany to plaintiff herein. There was no evidence that defendants were misled as to the real parties in interest in making the application for the building permit. We are of the opinion that the general rule is applicable herein, as stated in 62 C. J. S., Municipal Corporations, 515, §227 ( 4) b, that ordinarily in order to secure a building permit it is required that an application, in writing, in a prescribed form and manner, and setting forth specified information, be filed with the board or officer authorized to grant the permit. Substantial compliance with the requirements as to the application is sufficient. An immaterial discrepancy in the application is no ground for refusal of the permit and does not affect its validity.
Other contentions of the defendants have been closely examined and we are compelled to hold that in view of the entire record it has not been made affirmatively to appear that the judgment of the lower court is erroneous.
It follows that the judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was an action involving the ownership of and title to a strip of land seventy-five feet in width and 150 feet in length in the city of Stafford. Appellants L. E. and G. M. Whitlock will be hereinafter referred to as plaintiffs, and appellee F. J. Farmer, as defendant.
The city of Stafford was incorporated in 1885. Pearl Avenue, the property in question, was included in the plat as the westernmost street. In 1886 the limits were extended to include property adjoining Pearl Avenue on the west. Plaintiffs’ property joins and lies east and defendant’s property joins and lies west of Pearl Avenue. The pertinent part of plaintiffs’ petition alleged that on June 15, 1953, defendant fenced and took possession of all of Pearl Avenue, preventing plaintiffs’ use of the same; that defendant’s acts constituted a purpresture and a nuisance. Plaintiffs asked that the defendant be enjoined and restrained from interfering with the plaintiffs’ use of the property.
Defendant’s answer admitted the incorporation of the city, which included Pearl Avenue; alleged that the street was never open or used by the public; and alleged that Ordinance No. 200 of the city of Stafford, subsequently passed, established the west line of the city to be along the east boundary of Pearl Avenue and that by reason thereof the street had been vacated in the year 1905. Defendant further alleged that he acquired the same by adverse possession and asked that title to the property in question be quieted in him.
The case was tried to the court and judgment was entered, quieting title to the property in question in the defendant. From an order overruling plaintiffs’ motion for a new trial, they appeal.
It being conceded that Pearl Avenue was included as the westernmost street in the plat of the incorporated city of Stafford in 1885, the first question presented for our determination is whether Ordinance No. 200, passed by the city July 11, 1905, re-establishing the boundaries of the city, excluded Pearl Avenue, the property in question herein, from the city. Plaintiffs contend that this ordinance did not affirmatively mention the exclusion of any property from the city nor did it recite any proceedings had prior to its passage; that it was incumbent upon defendant to show the proceedings leading up to the passage of the ordinance prior to its enactment; and that the city had no statutory power by ordinance to vacate property by merely redefining the boundaries of the city limits.
The legislature made provisions for the vacation of townsites and parts thereof and by the Laws of 1905, chapter 519 (G. S. 1909, Ch. 123), provided in substance in section 1 that when the owner or owners of a part of an addition to any town or lands adjoining on both sides of any street should desire to have the same vacated, he or they should give public notice in some newspaper as prescribed, stating that a petition had been filed in the office of the county clerk directed to the board of county commissioners, praying for such vacation. Section 2 provided that upon presentation of such petition to the board they should hear the same and if upon a hearing a majority of the members were satisfied from the evidence that proper notice had been given and that no private rights would be injured by such vacation and that the public would suffer no loss or inconvenience thereby, the board should order the vacation and any land so excluded should be listed for future taxation the same as though it had never been a part of such town. Thereupon, the county clerk should certify a copy of such order to the register of deeds, who should write on the margin of the recorded plat of such townsite the words “canceled by order.”
Section 3 of the act further provided that the streets so vacated should revert to the owners of the real estate immediately abutting thereon, according to the frontage of such real estate; provided, that all lands so reverting would revert to the owners of abutting lands holding the same by title derived directly or indirectly from the owners of said land from which said street reservation was originally platted. Section 7 of the act provided that whenever the board should by order exclude any territory they should order the boundaries of such city changed to conform to the territory remaining in such city after such exclusion and the county clerk should certify a copy of the order to the mayor and council of such city, who should thereupon by proper ordinance record the change. The law became effective February 18, 1905.
Subsequent thereto and on July 11, 1905, the city of Stafford passed Ordinance No. 200 defining the city limits. Section 1 provided:
“That all of the additions, divisions and subdivisions and the streets and alleys thereof, as the same appears of record in the register of deeds’ office of Stafford county, Kansas; and all of the alleys, streets, blocks, tracts and parcels of land lying and being within the following boundaries, be and are hereby attached to and made a part of the said city of Stafford, and the limits of said city is defined and established as follows, to wit.” (Emphasis supplied.)
The description made the eastern boundary of Pearl Avenue the western boundary of the city, thereby leaving Pearl Avenue out of the city limits. It is here noted that at the time of the introduction of Ordinance No. 200 into evidence no objection was made on the part of plaintiffs as to its invalidity.
It is clear from the mentioned statute that the power to vacate townsites or any portion thereof was granted to the board of county commissioners and upon such vacation the county clerk would certify a copy of the order to the register of deeds of the county for recordation and would certify a copy to the mayor and council of the city, whose duty it was on proper ordinance to record the change. The presumption is that the county commissioners under proper proceedings vacated Pearl Avenue and the city of Stafford, in compliance with the mentioned statute, passed such ordinance, redefining the limits of the city as they appeared from the order of the county commissioners filed in the office of the register of deeds. Moreover, the introduction of the ordinance itself earned with it the presumption that all prerequisites to its adoption and publication had been complied with, that the ordinance was a valid and subsisting ordinance and that the burden of proving its invalidity was on the person asserting it. (2 Dillon, Municipal Corporations, 5th Ed., § 649; Moore v. City of Pratt, 148 Kan. 53, 57, 79 P. 2d 871.)
In State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873, we stated that where an ordinance which had been regularly passed by a city council and approved by the mayor was offered in evidence and the validity of such ordinance depended upon the existence of one or more facts at the time of the enactment thereof, the existence and not the nonexistence of the necessary facts to sustain the validity of the ordinance should be presumed in the absence of evidence to the contrary. (See also Horner v. City of Atchison, 93 K6an. 557, 144 Pac. 1010.)
In State, ex rel., v. City of Hutchinson, 109 Kan. 484, 487, 207 Pac. 440, we held that it should be presumed that a city complied with the law in passing an ordinance and such presumption should not be overthrown except by the clearest and most convincing evidence; that the time will soon come when cities will be unable to prove either their corporate existence or their territorial limits by proper record, evidence. When that time comes, presumptions in favor of the cities must be resorted to. (McQuillin’s Municipal Corporations, 3rd Ed., Vol. 6, § 20.07.)
The ordinance was a valid ordinance and when Pearl Avenue was vacated, the strip of land in question reverted one-half to the property now owned by plaintiffs and one-half to the property owned by defendant.
The other question presented is whether thereafter defendant acquired title to the east half of Pearl Avenue by adverse possession. Plaintiffs contend that defendant’s evidence failed to show adverse possession in him and his predecessors in title for more than fifteen years (G. S. 1949, 60-304) prior to the filing of tire instant action. It may be stated that the question of adverse possession is one of intention. The intent with which the occupant' has held possession is to be determined from all of the surrounding circumstances and especially from the acts of the possessor. His intention need not have been manifested by word of mouth; To constitute adverse possession of land, it is not absolutely necessary that there should be inclosure, buildings or cultivation, but the acts done must be such as to give unequivocal notice of the claim to the land adverse to the claims of all others and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to Iris title has been taken. No paper evidence of a transfer of possession of land held under a claim of the first entry is necessary. When the possession of real estate is actual, it may commence in parol without deed or writing' and may be transferred and passed from one occupant to another by parol or bargain and sale accompanied by delivery. (Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; Casner v. Common School District No. 7, 175 Kan. 551, 265 P. 2d 1027; Common School District No. 45 v. Lewis, 177 Kan. 261, 278 P. 2d 596; 2 C. J. S., Adverse Possession, 519, § 7.)
Applying the foregoing rales to the facts before us, we conclude that there was ample evidence to establish title in defendant. Shortly after the vacation of Pearl Avenue in the year 1905, defendant’s predecessor in title fenced the property and placed valuable improvements thereon, including a barn.
Mr. Donnelly, city attorney of Stafford for approximately thirty-three years, testified that he knew defendant’s predecessor Richardson claimed title to all of Pearl Avenue west of plaintiffs’ property; that a resolution had been passed by the city council in June, 1929, and the proceedings had by the council referred to the Richardson property as including what was formerly all of Pearl Avenue; and' that Richardson paid the cost of placing the curb and gutter and street improvements in front of what was formerly platted as Pearl Avenue lying west of plaintiffs’ property.
A Mr. Davis testified that he had lived in Stafford for twenty-five years; that he purchased from Richardson a fence which enclosed the area formerly platted as Pearl Avenue; that Richardson placed improvements on the tract and the barn was located on the property in question.
A Mrs. Bowman testified that Richardson enclosed Pearl Avenue with a fence and the barn was located thereon; that Richardson had a junkyard and junked old cars on the property.
Mayor Erhart testified that he had lived in Stafford since 1920, was familiar with the Richardson property; that it was fenced and had a house and bam on it and was first used for farming; that afterwards it became a junkyard and a salvage place; that it was enclosed by a barbed wire fence; and that the witness had at one time pastured a cow on the property within the enclosure.
The defendant testified that he was claiming ownership to all of Pearl Avenue since he purchased it in 1948; that he remodeled the buildings and erected a fence to protect the land, that he occupied this property prior to the time plaintiff’s predecessor built on the property east of Pearl Avenue; and that he had been paying taxes on the property since he purchased it.
This and other evidence clearly disclosed that defendant and his predecessors in title had exercised continuous, open, notorious, exclusive and adverse possession of the property in question for more than thirty-five years. The trial court, in applying the mentioned rules to the evidence presented, found that defendant had a clear case of adverse possession of all of Pearl Avenue, the property in question; that for more than thirty-five years the possession of defendant and his predecessors was exclusive, hostile, actual, open, notorious and uninterrupted, and entered judgment quieting defendant’s title thereto. The court, having heard the evidence and entered its judgment, we cannot say there was not sufficient evidence to sustain it. The principle is well settled in this state that the determination of issuable facts is no concern of the appellate court, provided there is sufficient evidence upon, which the judgment can be based. (Tucker v. Hankey, supra.)
We said in Ames v. Brooks, 179 Kan. 590, 297 P. 2d 195:
“Where there is dispute or doubt as to whether the occupant of lands claims adversely so as to acquire title by adverse possession, a question of fact is presented to be determined by the trier of the facts, and the determination so made, if based upon substantial competent evidence, is binding on appeal.” (Syl. 4.)
We find nothing in the record approaching reversible error. The findings and judgment of the trial court are based upon substantial, competent evidence and, such being the case, will not be disturbed upon appeal. The judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
This action was brought by plaintiff (appellant) to quiet title to certain real property located in Atchison County, Kansas. Only that described as the northwest quarter of section 20, township 7, range 22, is in dispute.
The trial court decreed that plaintiff’s title be quieted to that portion of the northwest quarter of section 20 owned by him, except a 30-acre triangular tract in the northeast corner marked in white ink as “disputed area” on the following aerial photograph prepared by the United States Department of Agriculture in 1954.
The “disputed area” is the land involved in this controversy. The trial court found that the defendants (appellees) Otto and Gertrude Pohl were in possession of the disputed area, but it made no order affecting the title to that area other than to reject plaintiff’s claim of title, and since the defendants Pohl and intervenor Price did not cross-appeal, the sole question presented is whether plaintiff has title to the disputed area.
Plaintiff claimed title to the disputed area by a deed dated January, 1954, from the executors of one Dugan estate and also from a number of heirs and legatees of one Hiram C. Dugan. The Dugan family had owned the northwest quarter of section 20 since 1865, and in 1919 they quieted title to all of the northwest quarter of section 20 except 30 acres in a square in the southwest corner, which had previously been conveyed to another party. Although the record does not indicate the acreage of the northwest quarter when judgment was rendered quieting title, the parties concede that sometime between 1917 and 1919 most of the northwest quarter of section 20 was in existence. As indicated, the trial court did not decree ownership of the disputed area but found that defendants Pohl were in possession. For the purpose of this opinion, it is unnecessary to set forth the conflicting claims of defendants Pohl and intervenor Price except to note that each claimed title to the southwest quarter of section 17 and ownership to the disputed area as accretions thereto.
The land in question is low river-bottom land adjacent to the Missouri river and has grown up to rank brush, timber, and weeds.
This court has previously described similar land as “low bottom-land, of the peculiar formation which characterizes the valley of the Missouri river in this region, and subject to the vicissitudes which result from the conduct of that capricious stream.” (Fowler v. Wood, 73 Kan. 511, 513, 85 Pac. 763.) It has been characteristic of this river to change its course in periods of high water by either tire process of avulsion or gradual and imperceptible erosion or encroachment. Such action by the Missouri river is the cause of this controversy.
Preliminary to the consideration of plaintiff’s contention that the findings and judgment of the trial court were not supported by substantial competent evidence, we note the rule of this jurisdiction that findings of fact made by the triial court upon conflicting testimony will not be disturbed on appellate review where there is competent evidence to sustain the findings. (Brent v. McDonald, 180 Kan. 142, 151, 300 P. 2d 396, and cases therein cited.) Plaintiff’s objection to those findings and judgment is stated in his brief as follows:
“When all the verbiage is cut away appellant’s basic discontent with the trial court’s decision and judgment is predicated upon the finding, by that court, that all of the land here in controversy, clearly belonging to the plaintiff’s predecessors at the time of the quiet title action in November of 1919, had been cut away by erosion, and had returned by way of accretion of lands formed in the quarter above.”
The evidence before the court below consisted of oral testimony introduced by all of the parties, and numerous official charts, maps and aerial photographs prepared by the Surveyor General’s Office, the Missouri River Commission, the Corp of Engineers of the United States Army, and the United States Department of Agriculture, the admission of which without formal proof was agreed to by the parties at a pre-trial conference. Neither party requested findings of fact and conclusions of law, but in announcing its decision the trial court made the following findings of fact:
“. . . the evidence shows that in 1890 and prior thereto the west (east) boundary of the northwest quarter was the Missouri River. Up near the northeast corner of that quarter section the river was running practically due north and due south. As it got down about a third of the distance from the north line it veered off to the southwest. Now, between 1890 and 1922 the course of the river changed. It was then running from a northwesterly direction to the southeast, and it cut directly across the northeast corner of the northwest quarter that we are talking about. And, of course, to the north it flowed through Section 17.
“Now, along about in 1922 a bar began to form up in the river in Section 17. I might add that between 1890 and 1922 the evidence here is overwhelmingly that the change in the river was one that took place slowly and gradually and imperceptibly.
“Now, around 1922, or perhaps even prior thereto, a bar began to form in the Missouri River up in Section 17, and between 1922 and 1928 this bar grew in size. As time went on this island had accretions to it. The island built up; willows began to grow; and it extended in size until it covered what was prior thereto the Missouri River as it ran across the northeast corner of the northwest quarter that we are talking about in this case, and gradually the Missouri River in the northeast corner of that particular quarter section was entirely covered by this island and what had accreted to it over the years.
“. . . The law as laid down in Fowler vs. Wood, 73 Kansas 511, and Intfen vs. Hutson, 145 Kansas 389, would be that when that bar formed up in Section 17, anything that accreted to that bar or to that island would belong to that island. I think in this case the plaintiff lost title to that triangular piece of land by reason of the change in course of the Missouri River. I think the evidence is overwhelming that that change was slow, gradual and imperceptible, and I feel that insofar as this quiet title suit is concerned, that the plaintiff, of course, should have judgment quieting title to all — that is, 'its title should be quieted to all except the triangular piece of land that lies north and east of slough in the northwest quarter. As to that particular tract of land I think the plaintiff has failed to show any title to that land, and I think the plaintff has failed to show that it has any possession of that land. . . .”
No useful purpose would be served by detailing the evidence before the trial court but suffice it to say we have thoroughly reviewed that evidence and find it ample to support the findings that plaintiff’s predecessors lost title to the northeast corner of the northwest quarter of section 20 between 1917 and 1922 by the process of gradual and imperceptible erosion by the Missouri river; that a bar or island subsequently formed in the bed of the river in section 17 which was extended into the original boundaries of plaintiff’s land by accretions, and became the disputed area as shown by the aerial map heretofore set forth; and, that plaintiff’s northeast boundary remained at the slough which separated his land fronl the disputed area.
It is well settled at common-law that where the bank of a navigable stream which constitutes the boundary of a tract of land is gradually and imperceptibly changed by erosion, the bank as so changed remains the boundary line of that tract of land. Thus, every owner whose land is so bounded is subject to loss by the same means which may add to his property, and he is without remedy for his loss of such portions as are eroded or washed away or encroached upon by the water. (Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330; Peuker v. Canter, 62 Kan. 363, 63 Pac. 617; McBride v. Steinweden, 72 Kan. 508, 512, 83 Pac. 822; Fowler v. Wood, supra, 6 L. R. A. [n. s.] 162, 117 Am. St. Rep. 534; 56 Am. Jur. Waters, § 477, p. 892; 93 C. J. S. Waters, § 80, p. 754.)
Plaintiff contends that this case is controlled by the statement in the opinion of Intfen v. Hutson, supra, that where land is lost by avulsion, in order for plaintiff to become the owner of the reappearing land, that land must have reappeared within the limits of the land taken away by avulsion. The contention lacks merit for two reasons: First, plaintiff’s predecessors lost title to the northeast corner of the northwest quarter of section 20 by the process of gradual and imperceptible erosion, and that which was formerly their land became the bed of the river, title to which vested in the state (Wood v. Fowler, supra), and second, if it be conceded that plaintiff’s land was lost by avulsion, the statement relied upon in Intfen v. Flutson, supra, would be of no avail to him since the island of which the disputed area became a part, was formed outside the original boundaries of the northwest quarter of section 20.
As in Intfen v. Hutson, supra, the situation 'disclosed by this record is controlled by Fowler v. Wood, supra, wherein it was held:
“New formations arising from the bed of a river belong to the owner of the bed, and new formations added to a bar or an island in the channel of a river by the process of accretion or reliction belong to the owner of the island or bar.
“In order to effect a change of boundary, formations resulting from accretion or reliction must be made to the contiguous land, and must operate to produce an expansion of the shore-line outward from the tract to which they adhere.” (Syllabus ¶¶[ 5, 6.)
Under the facts and the law applicable thereto, the boundary line of the northeast corner of plaintiff’s land was the slough existing between that land and the disputed area.
In a quiet title action plaintiff must recover on the strength of his own title and hot upon the weakness of his adversary. (Ordway v. Cowles, 45 Kan. 447, 450, 25 Pac. 862.) As previously indicated, the trial court concluded that plaintiff had neither title nor possession to the disputed area, and we think that conclusion correct. The question of the ownership of the disputed area has not been resolved, and we make no decision concerning it in this opinion.
Plaintiff further contends that the trial court erred in not permitting him to introduce additional testimony on his motion for a new trial. When that motion was heard the transcript was not available for examination. After having examined the. transcript, plaintiff concedes that the evidence offered would have been merely cumulative. Moreover, plaintiff submitted the case without asking opportunity to produce further testimony, and thus, the issue was closed. This point was decided in Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4, wherein it was held:
“One who submits a case tried without a jury, without asking opportunity to procure further testimony, is not in a position to ask as a matter of right a new trial on the ground that he was surprised by the evidence of the adverse party.” (Syllabus ¶ 4.)
We have reviewed the record and conclude that plaintiff failed to establish title to or possession of the disputed area. 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 by a surviving husband to recover for the wrongful death of his wife, alleged to have resulted from the negligence and malpractice of defendant physician and hospital.
The appeal is from the order of the trial court sustaining defendants’ separate demurrers to plaintiff’s evidence.
Plaintiff’s wife died in childbirth, and the petition charged defendant physician with the following acts of negligence and malpractice:
That he was late in arriving at the hospital and permitting her to be immediately placed in the labor room without taking the necessary steps to emotionally prepare her for labor and delivery; that he allowed the hospital nurses to take complete charge of her except during the times he was personally present; that he failed to personally examine her as soon as labor started in order to de termine the status of the membranes and failed to give an abdominal and rectal examination; that he permitted her to be placed in the delivery room prematurely and to be left alone most of the intervening time; that by proper observation and examination he knew, or should have known, of the abnormal fetal presentation; that he failed and refused to make an accurate diagnosis and failed to use appropriate methods and X ray to determine the cause of the abnormal and prolonged labor; that he failed and refused during all the prolonged and abnormal labor to administer approved supportive measures, such as adequate diet, rest, medical therapy and medication; that he failed to perform a Caesarean operation and relied upon delivery ,of a transverse presentation by instruments and pressure by two hospital nurses, thus causing the rupture and hemorrhage, and that he allowed hospital nurses, who were unlicensed to practice medicine and surgery, to perform the services he was duty-bound to perform.
The defendant hospital was charged with negligence and malpractice in that it undertook to render services to her through its nurses and employees which are customarily, and should be, performed only by physicians; that the nurses and employees failed to call defendant physician or a hospital staff doctor when her condition required such services; that when delivery was imminent the hospital failed to furnish an intern or other physician to be in constant attendance until defendant physician arrived; that notwithstanding the prolonged labor, evidence of breech birth and other conditions, the hospital was late in calling or notifying defendant physician; that the hospital, through its nurses and employees, administered sedatives and other medications without full knowledge of the limitations, dangers and reactions thereof; that it failed to report adequately to defendant physician, or some other doctor, the true condition of the patient; that it failed at all times material to carry out, fulfill and perform good and approved hospital care and practice, and that all of the acts and omissions on the part of both defendants were contrary to and in violation of the standards of medical services properly rendered by physicians and hospitals in the community, and that all of such alleged acts of negligence and malpractice, individually and in concert, operated together and constituted the proximate and direct cause of death.
Highly summarized, the evidence established the following:
The defendant, Dr. Graber, is a practicing physician in Hutchin son specializing in obstetrics. Defendant hospital is located in Hutchinson. Several months after plaintiff’s wife, Norma Goheen, became pregnant, she went to Dr. Graber for treatment. She was the mother of three children and Dr. Graber had been her doctor on each of her former pregnancies. During her last pregnancy, and in connection with which her death resulted, as hereafter related, there were no symptoms of anything unusual, and all signs pointed toward a normal childbirth with normal results. Early in the morning of February 6, 1954, Mrs. Goheen had a discharge indicating the imminence of commencement of labor, and called Dr. Graber by telephone. He directed her to go to defendant hospital at once, which she did. He arrived at the hospital a few minutes after she did and his examination of her showed that she was not yet in labor but that early labor was anticipated. This was at about 5:45 a. m. There was nothing to indicate anything wrong with her condition or that delivery would be anything other than normal. Later that morning the doctor directed some medication, and at 2:00 o’clock that afternoon he made another personal examination. There being no signs of definite labor he directed further medication. Shortly afterwards a few contractions commenced, and at 3:30 p. m. the membranes or water bag ruptured normally. Thereafter the contractions increased to proper stage and medications were discontinued. At 10:45 that night the doctor again made a personal examination and directed medication. At 2:00 o’clock the next morning obstetrical nurses, who, in the "meantime, had been taking care of Mrs. Goheen in the regular course .of their professional duties, advised the doctor that her progress was nearly complete. He arrived at the hospital a few minutes later, after which the fetus .was delivered. Blood plasma and oxygen were administered to Mrs. Goheen, but she died at 3:22 a. m.
An autopsy was performed by a recognized and experienced pathologist and this examination disclosed that Mrs. Goheen s death occurred as a result of hemorrhage due to a rupture of the uterus after delivery. The evidence further disclosed that the upper part of the uterus, instead of thinning out as the fetus developed, as is ordinarily the case, was more than twice the usual thickness, while the lower and smaller part of the uterus, where the rupture occurred, had developed extremely thin, and that such condition was latent and a very unusual type of abnormality, and that ordinarily there would be no warning of such condition prior to delivery.
With respect to the part played by the hospital and attending nurses, the evidence disclosed that there was nothing unusual or out of the ordinary in connection with Mrs. Gohéen’s pregnancy leading up to her actual delivery, and that during the period she was in the hospital she was under the routine and regular care of nurses of many years experience, and that they ministered to her in the usual and ordinary manner in the light of her known condition. During this period she was given the usual and customary rectal examinations, and nurses assisted the doctor in the actual delivery, as was customary.
Medical testimony was to the effect that at her state of pregnancy a vaginal examination would be improper and that only rectal examinations should be, and were, given to Mrs. Goheen. Plaintiff testified that he was in the delivery room a part of the time and that he observed what the nurses were doing with respect to making examinations, and he expressed the opinion that his wife was given a vaginal examination. He also testified concerning pressure applied by the nurses to his wife’s abdomen. There also was testimony from several members of Mrs. Goheen’s family concerning a conversation had with Dr. Graber the day following her death in which he was alleged to have said that perhaps her life could have been saved if a Caesarean operation had been performed.
As stated, at the conclusion of plaintiff’s evidence the trial court, after commenting somewhat at length on the evidence and questions involved, sustained demurrers by Dr. Graber and defendant hospital.
The correctness of that ruling is the question presented for review.
We first consider the case against the defendant physician.
Questions respecting the liability of physicians in malpractice cases have been before this court on numerous occasions, commencing with Tefft v. Wilcox, 6 Kan. 46 (1870), and ending with Bernsden v. Johnson, 174 Kan. 230, 255 P. 2d 1033 (1953). In between are to be found such frequently-cited cases as Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458; Sly v. Powell, 87 Kan. 142, 123 Pac. 881; Yard v. Gibbons, 95 Kan. 802, 149 Pac. 422; James v. Grigsby, 114 Kan. 627, 220 Pac. 267; McMillen v. Foncannon, 127 Kan. 573, 274 Pac. 237, and Flentie v. Townsend, 139 Kan. 82, 30 P. 2d 132. From these and many other decisions the following rules have become firmly established:
The relationship between a physician and his patient, implied in law, is that he possesses that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices or similar communities, having due regard for the advance in medical or surgical science at the time, and that he will use such learning and skill in his treatment of the patient with ordinary care and diligence. This rule is elementary and is founded on considerations of public policy, its purpose being to protect the health and lives of the public. A physician is not a guarantor of good results, and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment. In case of doubt as to which of two or more courses is to be pursued a physician is bound to use his best judgment. On questions of a medical or scientific nature as to what is the proper treatment to be followed in a particular case only those who are qualified as experts are permitted to testify, the reason being that lay witnesses, courts and jurors are not permitted to say what is the proper treatment for a disease or how a specific surgical operation should be performed. This rule is not to be considered as a judicial determination that the members of the medical profession have a monopoly on common sense, and is limited only to those matters clearly within the domain of medical science. If, in a given case, the bad results are so pronounced as to be apparent to anyone, and if what was done or not done in the treatment of a patient is so obvious and within the common everyday knowledge of persons generally, such facts may be testified to by persons other than physicians. An illustration of this would be such as where a physician fails to take steps to set a broken bone, or where a surgeon sews up a wound leaving some foreign article or substance in the body. In the Rernsden case, supra, the trial court set aside the verdict of the jury and granted defendant a new trial on the ground that expert testimony introduced was not sufficient to sustain the verdict. There a metal disk had been allowed to remain in the throat of a patient for a period of over thirty-six hours, and in reversing the lower court it was held that such fact, together with related matters, were such as could be discerned by any person of ordinary intelligence, and that lay testimony, together with the medical testimony introduced, was sufficient to sustain the verdict.
Applying the general rules just stated to the evidence in this case, what do we find? The evidence consisted almost entirely of testimony by the pathologist who conducted the post-mortem examination and of the attending nurses. All of the questions and matters in issue were clearly within the realm of medical science, and, without summarizing the evidence more than already has been done, it may be said there is not one iota of medical evidence to indicate that defendant physician was guilty of negligence or malpractice in diagnosing or rendering medical care to the deceased. In fact, all of the medical evidence affirmatively established that defendant physician did conform to proper practices and usages in the light of all attendant circumstances.
Some point is made of the fact that plaintiff testified to the effect that in his opinion his wife was given a vaginal rather than a rectal' examination. In the first place, such statement on his part was purely speculative, and secondly, the specific type of examination made was a matter of medical evidence concerning which he was not qualified to testify.
Another point is made of the alleged statement by defendant physician the next day to the effect that perhaps the fife of plaintiff’s wife might have been saved had a Caesarean operation been performed. Assuming that such remark was made, it constitutes no evidence that, under the circumstances and conditions existing prior to her death, and of which the doctor and nurses in the exercise of skill and diligence were well aware, it was negligence and malpractice not to perform a Caesarean operation.
Another point is made concerning nonuse of X-ray equipment. A short answer to this contention is that all of the evidence introduced established no reason for the use of X-ray equipment at any time preceding delivery, because all symptoms of the patient indicated normalcy in every respect, and, as heretofore related, the rupture of the uterus was due entirely to a latent abnormal condition of that organ. All of the evidence was to the effect that nothing could have been done which was not done after delivery and the occurrence of the rupture, such fact being the first symptom of the unusually abnormal and latent condition existing.
Insofar as defendant physician is concerned, matters concerning his professional acts in this case were matters solely within the realm of medical science and no evidence was introduced, expert or otherwise, to make out a prima^-facie case of negligence and malpractice on his part. Negligence is never presumed — it must be established, and until established by competent evidence, a jury has no function to perform. Plaintiff’s evidence not only did not establish negligence — it in fact refuted it. The demurrer of defendant physician was properly sustained.
Much of what has been said also applies to the alleged liability of defendant hospital. In the recent case of Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P. 2d 258, general rules with respect to the liability of a hospital for negligence in the care of a patient were discussed, and it was said that a private hospital must exercise toward a patient such reasonable care as his known condition may require, the degree of care being in proportion to his known physical and mental ailments. Textbook authorities cited in the opinion are to the effect that the extent and character of the care that a hospital owes its patients depends upon the circumstances of each particular case, and that the measure of duty of a hospital is to exercise that degree of care, skill and diligence used by hospitals generally in that community and required by the express or implied contract of the undertaking, and that a hospital is liable for want of ordinary care whether from incompetency of a nurse or failure in duty of a fully qualified nurse. See also Noel v. Menninger Foundation, 180 Kan. 23 (Syl. 2 and 3), 299 P. 2d 38.
As heretofore stated, up until the actual time of delivery there was absolutely nothing about Mrs. Goheen’s condition to indicate there was anything unusual or abnormal about her case, or that it differed from any of the thousands of obstetrical cases handled by the qualified and experienced nurses in attendance. In other words, insofar as Mrs. Goheen’s physical condition was known to the hospital and nurses, it was just another obstetrical case, and there was no evidence to indicate or establish that she was not ministered to and cared for in the customary routine manner as her known condition required and demanded. Medical evidence was to the effect there was nothing abnormal about a transverse delivery, and that very frequently external pressure is applied to the abdomen at the time of delivery.
Plaintiff relies heavily on the holding in Garfield Memorial Hospital v. Marshall, 204 F. 2d 721 (1953), where the liability of a hospital for negligent failure to provide proper care and attention during a mother’s labor and delivery was in issue. Reference to the facts of that case, however, clearly distinguishes it from the one before us. There, among other things, the uncontroverted evidence showed a hazardous journey to the delivery room with the baby’s head already protruding, the practically unassisted move from the cart to the delivery table, the unattended precipitous delivery, and the fall of the baby upon the rubber mat on the metal table.
As has been said with respect to defendant physician, negligence is never presumed — it must be established, and until established by competent evidence a jury has no function to perform. Tested by the rules heretofore mentioned with respect to a hospital’s liability for negligence and malpractice, plaintiff’s evidence not only did not establish negligence — it in fact refuted it. The demurrer of defendant hospital was properly sustained.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is the second appearance in this court of litigation (See Stanolind Oil & Gas Co. v. Cities Service Gas Co., 178 Kan. 202, 284 P. 2d 608) between two oil and gas corporations over an agreement whereby Stanolind Oil and Gas Company, hereinafter referred to as appellee and/or Stanolind, agreed to sell and Cities Service Gas Company, hereinafter referred to as appellant and/or Cities, contracted to buy a gas pipe line gathering system, located in the Kansas-Hugoton gas field. The instant appeal is from a decree sustaining Stanolind’s motion for judgment on the pleadings and the subsequent judgment rendered against Cities in accord with that ruling.
Although the issues presently to be determined are in a sense de pendent upon later events and proceedings it is highly important that readers of this opinion understand the facts, conditions and circumstances governing our decision in the first appeal. Therefore, since such matters are clearly and succinctly set forth in the opinion of that decision (178 Kan. 202), and hence need not be unduly labored, we make what is there related and held a part of this opinion as fully and completely as if it were incorporated herein.
Directing attention to the first decision it should be stated at the outset, that in reaching the conclusion therein announced, we had before us a lengthy stipulation consisting of 14 paragraphs, which the parties themselves had solemnly stipulated was to be treated as supplementary to and a part of the petition, to which Cities had theretofore demurred on the ground that pleading failed to state facts sufficient to constitute a cause of action.
For purposes essential to a proper understanding of our disposition of that case, and for that matter all purposes necessary to a decision of the instant appeal, it should be stated the preamble of such stipulation provides:
“It is hereby stipulated in open court this 11th day of May, 1954, by and between the undersigned, respectively, attorneys of record for the above named plaintiff and defendant, that the court in considering and determining the demurrer of the defendant herein to plaintiff’s petition shall accept as true and correct the following statement of facts as supplemental to and explanatory of the facts alleged in said petition. In event any of the facts herein stipulated are found to be contrary to the facts alleged in plaintiff’s said petition, it is agreed between the parties hereto that said petition shall be considered as amended insofar as necessary to conform to the facts hereby stipulated, namely:”
And paragraph 13 of the same instrument reads:
“The sole controversy between the parties is whether the gas retained in liquid hydrocarbon form at plaintiff s plant from gas delivered from Areas ‘A’ and ‘B’ under the Gas Purchase Contract was gas purchased under said contract. The determination of said controversy depends upon the proper and true construction and interpretation of the instruments involved in this litigation. If defendant did not purchase said gas under the Gas Purchase Contract, then defendant’s deductions of the same before determining the installments due on the purchase price of the gathering system were correct. If, on the other hand, defendant did purchase said gas under the Gas Purdhase Contract, then said gas should have been included in determining the installments due, under the Bill of Sale, on the purchase price of the gathering system, in which event, Plaintiff is entitled to judgment against defendant in the amount of $17,788.92, with interest, and costs as prayed for by it in its petition.”
Further reference to the opinion in the first appeal discloses that we treated the stipulation as a part of the petition, giving credence to all its provisions, including those of paragraph 13 heretofore quoted; and then, after having considered all of the provisions of the involved contracts held that it was clear the entire arrangement was one whereby “Stanolind sold its gathering system to Cities, Cities purchased all gas delivered to it by Stanolind at the well-heads, and then in turn transported the raw gas to Stanolind’s processing plant, at which point Stanolind, under rights reserved to it in the contracts, processed and extracted gasoline and other liquefiable hydrocarbons from such quantity of gas as it desired, and for which it obligated itself to pay Cities, and then released to Cities such gas as remained, and which such residue gas was satisfactory for Cities’ purposes.” (Emphasis supplied.) Thereupon, since such construction of the contracts required a reversal of the trial court’s ruling in sustaining a demurrer to the petition, we simply reversed that ruling and sent the case back to such tribunal, without instructions, assuming that judgment would be rendered in due course on the basis of the stipulation.
Upon return of the case to the district court Cities filed an answer. Highly summarized it may be stated this pleading contains:
Express and specific denials that it was indebted to Stanolind in any amount whatsoever under the terms and provisions of the contracts attached to the petition; and like denials that under the terms and provisions of the Gas Purchase Contract it purchased all of the gas delivered to it by Stanolind or was the owner of or had any interest or right in the liquids or liquefiable hydrocarbons removed from the gas.
Allegations that (a) Stanolind from 1950 to 1953, inclusive, with full knowledge of the terms of the involved contracts, contended in its Federal and State Income tax returns that it was the owner of and retained an economic interest in place in such liquids and liquefiable hydrocarbons so extracted and removed by it from the gas produced and thereby obtained an additional depletion allowance under the income tax law; and (b) that Stanolind paid royalty under its oil and gas leases to the persons entitled thereto on the basis that it, as producer-lessee, was the owner of such liquids and liquefiable hydrocarbons contained in and removed by it at its Stanolind plant.
Averments to the effect that by reason of Stanolind’s acts and conduct, as alleged in subparagraphs (a) and (b) above referred to, it had thereby estopped itself to assert that it did not own or reserve such hydrocarbons and admitted that at all times material in the case it was the owner of the gas representing the liquefiable hydrocarbons it extracted therefrom.
Other allegations, in the nature of conclusions, reciting the legal consequences of the facts set forth in the subparagraphs heretofore identified as (a) and (b).
And a prayer for affirmative relief.
Stanolind demurred to the foregoing answer on grounds that it failed to state facts sufficient to constitute a defense to the petition in the case, nor tender nor join any proper permissible issue in the case. When this demurrer was overruled it filed a reply denying each and every allegation contained in the answer.
Following joinder of issues under the foregoing pleadings the parties negotiated for several months respecting the execution of a new stipulation. Ultimately they wound up with one which was approved and signed by counsel for both parties and then filed in the district court. For all purposes, both informative and otherwise pertinent to this appeal, it may be stated the very first paragraph of this stipulation read:
“It is stipulated between the parties hereto this 11 day of April, 1956, that at the trial of this case the court shall consider as true and correct all facts and agreements contained in the stipulation filed herein, dated May 11, 1954. (This being the stipulation involved on the first appeal.)
“And in addition thereto the following facts:”
On June 25, 1956, the case was called for trial. All parties appeared and waived a jury. Following this action Cities called up for hearing a motion, it had filed that very day, to reform the second stipulation, based on grounds the words “and agreements” appearing in paragraph 1 of that instrument had been incorporated through inadvertence and mutual mistake of counsel for Stanolind and Cities and contrary to the mutual understanding and agreement of counsel for the respective parties thereto. Prior to presentation of this motion Cities filed an amended motion to reform the second stipulation. This motion was based on the same grounds as the original and asked that paragraph 1 of the second stipulation be reformed to read:
“It is stipulated between the parties hereto this 11th day of April, 1956, that at the trial of this case the Court shall consider as true and correct all facts contained in the stipulation filed herein dated May 11, 1954, except paragraph 13 thereof.”
In the interest of clarity we pause here to point out that the intent and purpose of this amended motion was to procure an order which would entirely delete paragraph 13 of the first stipulation from the second stipulation, whereas it had been included under the terms of the latter instrument as originally executed by the parties.
Following the introduction by Cities of evidence in support of its motion to reform the trial court announced that while it found no mutual mistake from that evidence it did find inadvertence on the part of Cities in executing its second stipulation and for that reason was sustaining its motion, which meant that such stipulation would go out. Upon this announcement counsel for Stanolind stated in substance that he had always intended to and might as well then move for judgment on the pleadings. The court then inquired whether he was asking for judgment on the pleadings by reason of paragraph 13 of the original stipulation on the theory the parties had made it a part of the petition. When this inquiry was answered in the afiirmative the court announced it would hear the motion. Counsel for the parties then presented their views respecting the motion and at the close of all arguments the court stated and held:
“Anything further, gentlemen? Now the earlier proceedings this morning had to do with whether there should be some modification of the last stipulation that was filed, but there hasn’t been any complaint about the original stipulation having been entered into by a mistake or inadvertence. It’s in the case, as I see it. The opinion on the appeal puts it in expressly, so I don’t think we can get away from it.
“Now, normally, if it wasn’t for the original stipulation in this case, what Counsel has said is true, of course, you have a right to answer after the demurrer, but haven’t you effectively tied your hands by that paragraph of the original stipulation in which you hound yourself, to suffer a judgment if the Court held that you had purchased all of the gas at the wellhead? I don’t see how you can get away from that, gentlemen, because you have a right to limit the Court hy stipulation and the Court is bound by it. I’ll sustain the motion and judgment is rendered against the plaintiff [defendant] for $17,-788.92 and interest.’’
Thereupon, as has been previously indicated, Cities perfected the instant appeal wherein it specifies the trial court erred in sustaining the motion for judgment on the pleadings and in rendering judgment in favor of Stanolind.
At this point it should be noted that at the commencement of his oral argument in this court counsel for appellee announced that Stanolind Oil and Gas Company is now Pan American Petroleum Corporation, whereupon counsel for appellant stated it had been agreed such corporation might be substituted as appellee. Therefore, although we are not inclined to make a change in the title of the case as filed with our Clerk, and shall continue to refer to the parties as heretofore indicated, what is here stated and held is to be regarded as applicable to all parties now involved in this appeal, including Stanolind’s successor in interest.
Appellant’s position with respect to the errors assigned is that they present three questions for review. These, stated in language and order in which they appear in its brief, read:
“1. Was the stipulation of the parties of May 11, 1954, a part of plaintiff’s petition for all purposes, including plaintiff’s motion for judgment on the pleadings, or was it limited to a consideration and determination, by the court, of defendant’s demurrer to such petition?
“2. Does said stipulation of May 11, 1954, including paragraph 13 thereof, preclude defendant from interposing and relying upon its answer and proving the defenses set forth therein?
“3. Did defendant agree by such stipulation that judgment should be, by the court, entered against it in this case?”
At the outset it should be stated that in approaching consideration of the foregoing questions, either singly or collectively, it must be remembered that the parties themselves are responsible for the procedure which, in both this and the first appeal, compelled this court, and we may add the court below, to treat, accept as true, and give full credence to a stipulation to which they had each solemnly agreed, as a part and parcel of Stanolind’s petition. In other words having joined in making the stipulation a part of that pleading and thus participated in the creation of a novel situation, which we pause here to note makes many established rules of our decisions having to do with procedure inapplicable, Cities is bound to accept the benefits and burdens of the stipulation and cannot be heard to say its terms and conditions are to be disregarded in determining the propriety of the trial court’s ruling on the motion for judgment on the pleadings.
In our opinion the answer to question No. 1 is to be found in the language of the stipulation itself. Reference to paragraph 13 of that instrument discloses that the parties themselves agreed “The sole controversy between the parties is whether the gas retained . . . was gas purchased under the contract” and that “the determination of said controversy depends upon the . . . construction . . . of the instruments involved in this litigation.” If they had stopped with these sentences there might be some merit to appellant’s posi tion the stipulation was limited to consideration of the demurrer. Rut they did not do so. Instead they went on and stipulated, which we repeat and underline for purposes of emphasis, as follows:
“. . . If defendant did not purchase said gas under the Gas Purchase Contract, then defendant’s deductions of the same before determining the installments due on the purchase price of the gathering system were correct. If, on the other hand, defendant did purchase said gas under the Gas Purchase Contract, then said gas should have been included in determining the installments due, under the Bill of Sale, on the purchase price of the gathering system, in which event, plaintiff is entitled to judgment against defendant in the amount of $17,788.92, with interest, and costs as prayed for by it in its petition.”
Why, we inquire, the addition to the stipulation of the last quoted sentences unless the “sole controversy,” theretofore referred to, was to be determined and disposed of in accord therewith? In and of itself we think the language just quoted compels a conclusion the stipulation was a part of the petition for all purposes, including the motion for judgment on the pleadings.
Inasmuch as it is apparent the answer to question No. 2 is dependent upon our answer to question No. 3 we shall dispose of the last mentioned question before giving any consideration to question No. 2. What has been related in the preceding paragraph of this opinion should be sufficient to require an affirmative answer to this question. Even so we proceed further and hold that the last quoted provisions of paragraph 13 of the stipulation show on their face that if appellant purchased the gas in question under the Gas Purchase Contract, as this court held in the opinion of Stanolind Oil & Gas Co. v. Cities Service Gas Co., 206, supra, then, and in that event, appellee would be entitled to judgment. Indeed, to hold otherwise would require that we not only ignore but refuse to give the language employed by the parties with respect to the subject its plain; ordinary and accepted meaning. Coburn v. Simpson, 102 Kan. 234, 170 Pac. 383, cited by appellant in support of its position on this point, is clearly distinguishable and affords no sound ground for a contrary conclusion. In fact syllabus 2 of the opinion in that case definitely indicates a motion for judgment on the pleadings is properly sustained if a stipulation of facts contains something fatal to recovery by either of the parties to an action. Here, as we have indicated, the stipulation does contain such a provision.
Having determined that appellant agreed in the stipulation that judgment should be entered against it upon determination of the question whether it had purchased gas under the Gas Purchase Con tract, and since it has been finally determined by this court in Stanolind Oil & Gas Co. v. Cities Service Gas Co., supra, that it had done so, we have little difficulty in concluding that the stipulation of May 11, 1954, precluded it from interposing, relying upon and proving the defenses set forth in the answer filed by it in the court below. We are cited to and know of no decisions holding that under the existing facts and circumstances appellee can be regarded as having acquiesced in and waived its right to insist that judgment in its favor should be rendered on the pleadings by reason of such stipulation. Indeed in the face of the record disclosed by the factual statement of this opinion our view is the exact contrary appears.
It is to be noted that up to this point our conclusions to the effect the quoted questions require affirmative answers have been based entirely upon what we regard as the clear and unequivocal terms and provisions of the stipulation. Notwithstanding, since the issue has been raised, we have examined the entire record in this appeal and the one decided in 178 Kan. 202 on the basis of the intention of the parties at the time of its execution and feel impelled to state that when reviewed on that basis we would have even less difficulty in reaching a like conclusion with respect to the questions posed by the appellant.
We shall not attempt to here discuss any of the numerous arguments advanced regarding the established rules of this jurisdiction dealing with judgments on pleadings or the numerous decisions cited by appellant with respect thereto which might be in point were it not for the unusual situation, brought about by the parties, to which we have previously referred. It suffices to say, the over-all answer to such arguments is that the rules relied on have no application and the decisions cited no value as controlling precedents in a situation where the parties have stipulated as here indicated and then made their stipulation a part of a plaintiff’s petition.
Nor are we inclined to labor extended portions of appellant’s brief containing arguments and dealing with matters which, when carefully analyzed, can only be considered as a complaint to the effect our decision in Stanolind Oil & Gas Co. v. Cities Service Gas Co., 178 Kan. 202, 284 P. 2d 608, was erroneous and actually amount to a plea for a review and reversal of such decision. That appeal was finally determined many months ago when we overruled the present appellant’s motion for a rehearing in that case. Under such conditions it is neither necessary, required nor proper that we deal with questions raised with regard to such matters or discuss arguments advanced with respect thereto. The rule in our jurisdiction is that when a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions. (Waddell v. Woods, 160 Kan. 481, 163 P. 2d 348.)
We find nothing in other arguments advanced by the appellant or in decisions cited in support thereof which either compel or warrant conclusions contrary to those heretofore announced in this opinion respecting the force and effect to be given the stipulation entered into by the litigants involved in this case.
Therefore we hold that the trial court’s action in sustaining appellee’s motion for judgment on the pleadings was proper and that its judgment rendered in accord with such stipulation must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from the decision of the district court overruling a plaintiff land owner’s application to enjoin the County Commissioners of Johnson County from spreading a special assessment on plaintiff’s land for the cost of a lateral sewer district.
Plaintiff and appellant J. K. Wood was the owner of a three acre unplatted tract of land in Mission Township, Johnson County, Kansas. This land was located within the boundaries of Mission Township Main Sewer District No. 1.
On the 17th day of July, 1947, J. K. Wood executed and delivered a right-of-way grant to the Mission Township Main Sewer District No. 1, granting a strip of land 25 feet wide adjoining the west property line of the three acre tract, 10 feet of which was to constitute a permanent right-of-way and the remainder to be temporary and for construction purposes only. A $1.00 consideration was recited.
The right-of-way grant also contained the following paragraph:
“Grantor, as a further consideration of this Right-of-Way Grant, reserves the right to make connections to said sewer and use said sewer at any future time without organizing a sewer lateral district or other sewer district or without paying any fees or charges therefore whatsoever, it being expressly understood that grantors shall not be required to pay any sum to any persons, firm, corporation, association, or sewer district when and if grantor makes said connection or connections and uses said sewer provided, however, that any one connection or subsequent connections shall be made in accordance with the rules and regulations of the Governing Body of Main Sewer District No. 1.
Except for the above paragraph of reservation, the right-of-way grant was the same as seventy-nine (79) others secured and filed on behalf of the Mission Township Main Sewer District No. 1, October 8, 1947.
On March 1, 1948, Wood and his wife, who had not signed Wood’s previous grant, executed and delivered another right-of-way grant to the sewer district identical to the previous grant except for the omission of the above paragraph of reservation and for a more particular description of the ten (10) feet of the twenty-five (25) granted in the easement to constitute a permanent right-of-way. The grant recites a consideration of $1.00 but there was testimony that $9.09 was paid for the second grant at the rate of $.50 a rod. This grant was filed on March 12,1948.
The Board of County Commissioners as the Governing Body of Mission Township Main Sewer District No. 1, constructed a main sewer through the easement granted by Wood. The co-appellants and co-plaintiffs are persons who have subsequently purchased portions of the three (3) acre tract from Wood.
After the construction of the main sewer, Wood built several houses on the three (3) acre tract now occupied by appellant, co-appellants and co-plaintiffs, and in each instance, with one exception, he connected each house with the main sewer. The one exception is not connected to the sewer but to a septic tank. These connections were made upon application and with the authorization of the Chief Sanitation Engineer for the sewer district.
Subsequent to the construction of the main sewer, the Board of County Commissioners established and included the three (3) acre tract within, along with other lands, a Lateral Sewer District known as 22-B and constructed lateral sewers in a part of the district but not within the three (3) acre tract of Wood and his purchasers.
On the 10th day of November, 1953, the commissioners made an order apportioning the cost of the Lateral Sewer District against all the ground in the Lateral Sewer District including the three (3) acres. After proper protest to the Board of County Commissioners, the appellants then filed an injunction suit in the district court to enjoin the spreading of the assessments and from entering the special assessments upon the tax rolls as against appellants’ land.
Plaintiffs and appellants plead the above facts generally in their petition. More particularly they alleged that the first right-of-way grant was given at the special instance and request of the defendant and made, executed and delivered to the defendant, its agents, servants and employees on a form provided by them; that the inclusion of the three (3) acres in Lateral Sewer District 22-B was contrary to the reservation contained in the easement; that the plaintiffs had built and paid for all sewers connected to the houses erected on the three (3) acres in accordance with the directions of and under the supervision of the officers, agents, servants and employees of Mission Township Main Sewer District No. 1.
Plaintiffs also allege:
“If said easement had not contained said reservation aforesaid, exempting said land and real estate from being included in a Lateral Sewer District, that these Plaintiffs having built and paid for their sewers, cannot be, pursuant to the provisions of Section 19-2738 (1) of the General Statutes of Kansas, 1949, assessed for sewers in other parts of said Lateral Sewer District No. 22-B.”
The answer of defendant contains a general denial with specific denials on the application of G. S. 1949,19-2738 (1).
“Answering further, defendant states that Sec. 19-2738 (1) of the General Statutes of Kansas, 1949, does not apply in this matter in as much as plaintiff’s property is receiving benefits of lateral sewer.”
In the petition, plaintiffs allege nothing regarding the execution of the second right-of-way grant.
The second grant was brought into the case as defendants’ evidence Exhibit A.
The matter was duly tried by the court with judgment for the defendants. The court made the following "memorandum decision” which is a part of the Journal Entry.
“Now, on this 23rd day of December 1955, the above entitled matter is hereby determined.
“The plaintiffs’ petition seeks to enjoin the defendants from levying assessments for the improvement of Lateral Sewer District 22-B against certain property now owned by the plaintiffs. The relief sought by the petition is based upon a reservation contained in a right-of-way grant dated July 17, 1947, recorded October 8, 1947, in Book 36 Miscellaneous, Page 9, Register of Deeds office in Johnson County, Kansas. This right-of-way grant was signed by J. K. Wood, the then owner of the ground now owned by the plaintiffs.
“J. K. Wood and his wife executed a second right-of-way grant dated March 1, 1948, and recorded March 12, 1948, in Book 37 Miscellaneous, Page 247, in the Register of Deeds Office in Johnson County, Kansas.
“Different language was used in the descriptions in each of the right-of-way grants, but the property described is identical in each. The second right-of-way grant definitely located the permanent easement, and the grantor reserved no rights in the easement.
“The second right-of-way grant was given for valuable consideration. Both right-of-way grants were executed prior to the construction of the sewers in this particular right-of-way.
“The execution of the second right-of-way grant has the legal effect of vacating or nullifying the first right-of-way grant. Moreover, in the first right-of-way grant the reservation made by the grantor becomes a servient estate to the easement granted to the grantee, and, as between these two, the easement becomes the dominant estate. The execution of the second right-of-way grant merged tire servient and the dominant estate into the owner of the dominant estate, the grantee in both grants.
“Lateral Sewer District 22-B was legally created and included the ground owned by the plaintiffs, and should be assessed for its proportionate part of the cost of the improvement of said Lateral Sewer District 22-B.
“The injunction sought by the plaintiffs is therefore denied at the cost of the plaintiffs.”
After overruling post-trial motions this appeal is taken.
Plaintiffs and appellants make twelve specifications of error.
The first specification is that the court erred in holding the execution of the second right-of-way grant had the legal effect of vacating or nullifying the first right-of-way grant.
Appellants admit that as far as the trial court went its statement of the law is correct but they contend the court failed to include a very important exception applicable to the case at bar, which is, that where a second deed is given to correct an error or omission in the first deed the grantee is not thereby released from any covenants contained in the first deed. (Citing 16 am. Jur., Deeds, §336.)
The difficulty with appellants’ position is that there is no showing in this case the second instrument was for the purpose of correcting the first instrument. The court so found from the evidence and in its memorandum decision stated “the execution of the second right-of-way grant has the legal effect of vacating or nullifying the first right-of-way grant. The second right-of-way grant definitely located the permanent easement and the grantor received no rights in the easement.”
In Shotzman v. Ward, 172 Kan. 272, 239 P. 2d 935, the court said:
“No rule is better established in this jurisdiction than the one that findings of fact supported by substantial competent evidence are conclusive and will not be disturbed on appellate review even though the record discloses some evidence which might have warranted the trial court in making findings to the contrary. For some of our more recent decisions where the rule is discussed, applied, and adhered to, see In re Estate of House, 164 Kan. 613, 192 P. 2d 177; Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209; Oetken v. Shell, 168 Kan. 244, 248, 212 P. 2d 329; In re Estate of Spark, 168 Kan. 270, 212 P. 2d 369; In re Estate of Anderson, 168 Kan. 299, 212 P. 2d 375; State, ex rel., v. Rural High-School District No. 3, 169 Kan. 671, 677, 220 P. 2d 164. Many other decisions of like import are cited in West’s Kansas Digest, Appeal & Error, §1010 (1), 1011 (1); Hatcher’s Kansas Digest, Appeal & Error, §§ 507, 508.”
Since the court so found, appellants’ specification of errors two and three are also without merit. Although the court found that the first grant created a servient estate which merged with the dominant estate on the execution of the second grant such a finding was not necessary to support the court’s position that the second right-of-way grant nullified the first. Assuming appellants’ argument is correct that the right to connect to the sewer was a dominant and not a servient estate, the result would not be changed.
The fourth specification is that the court erred in holding the Lateral Sewer District was legally created and by including the ground owned by the plaintiffs in its assessments.
Here again appellants admit that:
“As for the mechanics of the organization of Lateral Sewer District 22-B, other than the inclusion of the ground now owned by the Plaintiffs in the same, the Sewer District for the purposes of this case may be considered as legally created; however, the Court erred in holding the inclusion of the ground owned by Plaintiffs in the Sewer District was proper and that the same should be assessed . . .”
In so far as appellants rely upon the validity of the reservation in the first grant their specification is without merit. The court found the reservation to have been nullified by the second grant and on appellate review we cannot say the court was in error in doing so.
In specification number four, appellants also contend that they come under the provisions of G. S. 1949, 19-2738. There is no showing in the record as to the position taken by the court on this allegation in plaintiffs’ petition. It can only be assumed the court rejected it by finding the lateral sewer district was legally created “and included the ground owned by the plaintiffs.” In any event, the burden was upon plaintiffs to show the application of this statute, which was not done. Appellees contend appellants did not come within the terms of the statute and the matter was left there at the trial and on this appeal.
In discussing specification of errors one through four, appellants vigorously contend that the reservation and easement were properly created in the first place, were not contrary to public policy, that the covenant runs with the land and was passed by conveyance, that a true agency existed between the Board of County Commissioners as the Governing Body of the Sewer District and one Hopkins who secured the first grant from appellant, that the county was charged with knowledge of the reservation, that if agency did not exist at the time, the county ratified it by subsequent actions and that the county at all times had authority to grant this reservation.
All these matters are outside the scope of the court’s decision. The court simply decided from the evidence that the second grant was not a correction deed and therefore nullified the previous deed, and that no reservation, in fact, existed and under the law the county had the right to proceed as in the usual case to create the lateral sewer district and make the necessary assessments.
Specification of errors five through twelve go to the overruling of plaintiff’s motion for new trial and to various trial errors in admitting defendants’ Exhibit A, (the second grant), the failure of the court to sustain objections of the plaintiffs to testimony and in not permitting certain testimony.
We have carefully examined these specification of errors and while there are several instances in which the court could have ruled differently, yet we think that the appellants did not suffer prejudicial error thereby and that the findings and conclusions of the court were supported by the evidence. Such being the case, we are not at liberty to substitute our judgment for that of the trial court.
Taking the court’s findings as the factual basis of what transpired, we are then confronted with the question of the correctness of the conclusions of law and the judgment ultimately entered by the court. A presumption of validity attaches to the judgment until the contrary is shown and the burden of establishing its invalidity is, of course, upon those alleging it.
We are compelled to hold that it has not been made affirmatively to appear that the judgment of the lower court is erroneous and should be reversed. Such being the case, we shall have no alternative than to affirm. (G. S. 1935, 60-3317; Firmin v. Crawford, 140 Kan. 370, 36 P. 2d 970; Jones v. Crowell, 167 Kan. 415, 419, 207 P. 2d 435; State, ex rel., v. Rural High-School District No. 3, 169 Kan. 671, 220 P. 2d 164; Rupp v. Rupp, 171 Kan. 357, 233 P. 2d 709; Shotzman v. Ward, supra; Whipple v. Fehsenfeld, 173 Kan. 427, 249 P. 2d 638; Gillen v. Stangle, 175 Kan. 364, 264 P. 2d 1079; Smith v. DeHay, 176 Kan. 422, 271 P. 2d 251; and Willhite v. Wood Construction Co., 179 Kan. 140, 292 P. 2d 703.)
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
The original opinion reversed the trial court’s order which sustained the demurrer of the appellee city to the petition of appellant. This opinion on rehearing concerns only the cause of Chester K. Stolp against the city of Arkansas City.
The original opinion set out all the elements involved in the operation of the hospital in question which were covered by the allegations of the .petition, as well as the controlling statute (G. S. 1949, 14-647). In view thereof, we previously held that the city was acting in the exercise of a private or proprietary function in the same manner as does a municipality when it owns and operates a water, electric, or natural gas plant. Since the operation of the hospital, as such, was a proprietary function, the city was not clothed with any governmental immunity hut instead it was liable in tort the same as any privately-owned general hospital would be with which it may compete. There was no controversy between the parties but that a city would be liable for torts if its employees were negligent in operating a municipally-owned utility as above .enumerated.
The only question before the court was whether the demurrer of the city to appellant’s petition were properly sustained by the trial court. We thought it was not. This conclusion was based on the original opinion in its entirety and not upon any isolated statement made therein. We did not and we do not now have any intention of limiting governmental immunity of the state, or any arm thereof. We determined only that the operation of the Arkansas City hospital was a proprietary function, as separate and distinct from a governmental function, and we are still of the same opinion. Therefore, we adhere to the original syllabus and opinion of the court.
Price and Fatzer, JJ., dissent.
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The opinion of the court was delivered by
Fatzer, J.:
This action was instituted by Magnolia Petroleum Company, hereafter referred to as Magnolia, to enjoin the State Commission of Revenue and Taxation, hereafter referred to as the commission, from (1) compelling Magnolia to furnish certain financial data and information required by Schedules 1 to lc, inclusive, on the commission’s ad valorem tax assessment forms with respect to the assessment of its gas gathering pipe lines located in Grant, Finney, Haskell, Kearny and Stevens counties; (2) attempting to assess or assessing its liquid fuel extraction plant located at Hickok, Grant county, Kansas; (3) imposing penalties upon it for failing to furnish such financial data and information or refusing to return for assessment purposes said extraction plant; and (4) certifying any assessment of such property to the county clerks of such’ counties for the tax assessment year of 1955. The commission demurred to Magnolia’s petition on the ground it failed to state a cause of action against the commission and in favor of Magnolia. The trial court sustained the demurrer, and Magnolia has appealed and seeks review of the order sustaining the commission’s demurrer.
Insofar as here pertinent,' the allegations of the vertified petition are summarized as follows: Magnolia is a private corporation organized under the laws of the state of Texas; is authorized to do business in seventeen other states, and has its principal place of business at Dallas, Texas. It is authorized to carry on the business of producing, refining and marketing petroleum and petroleum products in the state of Kansas. It has a capitalization of $125,-000,000. The assessed valuation of its tangible property in states other than Kansas is $144,716,302, and in Kansas, exclusive of the property involved in this action, is $6,427,440. It owns and has oil and gas properties and wells in all areas in central and western Kansas in which oil and gas are produced.
Magnolia owns and produces natural gas from some 156 gas wells in Grant, Haskell, Kearny, Finney and Stevens counties. To facilitate the marketing of the natural gas, it constructed, in 1948, a “gathering” pipe-line system of steel pipe ranging from four to twenty-four inches in diameter, which was connected to each well to permit the natural gas produced to flow to a point at Hickok for sale to the Cities Service Gas Company and delivery to its pipe line. In January, 1950, Magnolia constructed an “extraction” plant at Hickok and since that time has run the natural gas produced from its gas wells through its extraction plant in a continuous and uninterrupted movement for sale and delivery to Cities Service, and has extracted and processed therefrom liquid fuel by-products, viz., natural gasoline, butane, propane, and liquefied petroleum gas, after which the “dry” gas is delivered to the pipe line of Cities Service and sold to that company at the same point and in the same manner as before the extraction plant was constructed. All liquid fuel by-products are stored or sold at the extraction plant.
In addition to processing gas from its own wells, Magnolia purchases gas from five other wells jointly owned by it and three other companies, which it runs through its gathering lines. About one-third of the gas processed at its extraction plant is purchased from Columbian Fuel Corporation and delivered to Magnolia’s extraction plant through that company’s pipe line. All gas purchased by Magnolia is produced from gas wells located in the state of Kansas.
Since the completion of Magnolia’s gas gathering lines, it has returned these lines each year to the commission for tax assessment purposes on forms prepared by the commission for the assessment of pipe-line companies as defined in G. S. 1949, 79-701, et seq., although noting thereon it was not a gas pipe-line company, a public utility or a common carrier and that the property rendered was not used in the business of transporting gas but merely a plant facility serving only Magnolia’s private business. On April 5, 1955, Magnolia made its 1955 tax assessment return of such lines to the commission in the same manner as it had in previous years. Attached to Magnolia’s petition as Exhibit A was a copy of this return to which later reference will be made. Following the construction of the extraction plant in 1950, it was returned each year, with the consent of the commission, to the county clerk of Grant County for tax assessment purposes on forms prepared by the commission and was assessed locally in that county. On April 1, 1955, Magnolia filed its 1955 tax assessment return for the extraction plant with the county clerk as in previous year.
Prior to 1955 the commission had not required Magnolia to supply the financial data and information requested on Exhibit A, particularly on the lower portion of Schedule 1 and on Schedules la, lb and lc. Exhibit A is lengthy, consisting of fifteen separate sheets, the first five of which are designated as Schedules 1 to lc, inclusive, requiring financial data and information of Magnolia’s total operations and properties in seventeen other states listed separately from its Kansas properties, and all of its Kansas properties including those unrelated to the gathering lines and extraction plant involved in this controversy.
Following the filing of Magnolia’s 1955 tax assessment return of its gathering lines, the commission refused to accept that return and directed Magnolia to return, in addition to these lines, the extraction plant for assessment purposes as a pipe line company as defined in the statute. Thereafter the commission directed the county clerk of Grant County not to accept the tax assessment re turn of the extraction plant and informed that official the commission would assess it. Accordingly, the county clerk did not assess the extraction plant for the tax year 1955. The commission informed Magnolia that if it did not include the extraction plant in its 1955 tax assessment return and give full and complete financial data and information required on Schedules 1 to lc, inclusive, the commission would assess both the gathering lines and the extraction plant from such information as it had available, would add 50 percent for failure of Magnolia to file a proper return, and impose all statutory penalties prescribed by G. S. 1949, 79-708.
Magnolia alleged that its gathering lines and its extraction plant were separate and distinct properties; that neither was dependent upon the other and were at times operated separately from the other; that it was not a pipe-line company, public utility or a common carrier, and that neither its gas gathering line nor its extraction plant constitutes a pipe line or pipe-line property as defined in G. S. 1949, 79-701, et seq.; that the extraction plant was not within the jurisdiction of the commission for tax assessment purposes since it was used in Magnolia’s private business as a manufacturing or processing plant and should be assessed locally in the same manner as a refinery or other plants of similar nature located in Grant County or other counties in Kansas are assessed; that the commission had unreasonably, arbitrarily and capriciously ordered, directed and demanded that Magnolia include in its tax assessment return the extraction plant, which would be discriminatory and confiscatory and constitute the taking of its property without due process of law and deny it the equal protection of the law in violation of the 14th Amendment; that if G. S. 1949, 79-701, et seq., is applicable to its gas gathering lines or its extraction plant, the statute is unconstitutional and void as taking its property without due process of law and denying it the equal protection of the laws in contravention of the 14th Amendment; that it was not engaged in the business of transporting gas or oil in pipes and does not own pipes or pipe lines for that purpose in the state of Kansas; that its gathering lines are used exclusively for gathering and marketing its own gas as incident to its private buisness; that it is not authorized to transport gas for other persons or for hire and does not do so; and, that it owns no franchises in Kansas, does not have the right of eminent domain and is not subject to regulation by any federal or state regulatory body.
Magnolia further alleged that it does not have and cannot obtain the financial data and information required on Schedules 1 to lc, inclusive, except by completely changing its system of accounting and expending needless hundreds of thousands of dollars to obtain such information; that Schedules 1 to lc, inclusive, require information pursuant to the uniform system of accounts prescribed by the Interstate Commerce Commission for use by interstate common carriers, which are regulated by federal and state regulatory bodies and call for more than 150 items of accounts involving the ownership and operation of extensive properties of Magnolia in seventeen other states, which are beyond the commission’s jurisdiction; that the commission has arbitrarily and capriciously demanded that Magnolia furnish all of the financial data and information required on said schedules; that such information has no bearing or connection whatever with the assessment of its gathering lines; that the commission is not entitled to have such information, and would, if Magnolia is required to furnish the same, amount to a confiscation of its property; that if the commission is not enjoined it will assess both properties for the year of 1955 at an arbitrary and excessive valuation and will add exhorbitant penalties; and, that Magnolia is without adequate remedy at law and will suffer and sustain irreparable injury and loss unless given relief by a court of equity.
The prayer was that the commission be enjoined from (1) compelling Magnolia to furnish the financial data required by Schedules 1 to lc, inclusive, with respect to the assessment of its gas gathering lines; (2) attempting to assess or assessing its extraction plan; (3) imposing penalties upon Magnolia for failure to furnish the financial data required in Schedules 1 to lc, inclusive, or refusing to return its extraction plant for assessment purposes, and (4) certifying any assessments of its property to the county clerks of the counties in which its gathering lines or the extraction plant are located.
On June 7, 1955, a temporary restraining order was issued by the trial court restraining the commission from doing any acts contrary to those contained in the prayer of the petition. On June 22, 1955, the trial court granted a temporary injunction against the commission and on August 23, 1955, the parties entered into a stipulation, which was approved by the trial court, to the effect that during the pendency of the action the property of Magnolia would be tentatively assessed, apportioned and taxed by the same taxing agencies as those for the tax year 1954 and that the tenta tive valuation for 1955 would be the same amounts at which said property was assessed and taxed for the year 1954. Thereafter, the commission filed a motion to make Magnolia’s petition definite and certain and to strike. This motion was overruled in toto by the trial court, following which, the commission demurred to the petition for the reason that it did not state facts sufficient to constitute a cause of action. Magnolia has appealed from the order of the trial court sustaining the commission’s demurrer.
The commission contends that Magnolia’s petition was defective in two respects: first, it failed to affirmatively allege the action taken by the commission was “illegal,” and second, in the absence of such an affirmative allegation, the remedy of injunction authorized by G. S. 1949, 60-1121 was not a substitute for the administrative remedy provided by G. S. 1949, 79-1702, and at most, Magnolia’s petition alleged a mere attempted erroneous assessment. In Sherwood Const. Co. v. Board of County Comm’rs, 167 Kan. 421, 207 P. 2d 409, it was said:
“It is also well to observe G. S. 1947 Supp. 79-1702, in substance, provides that where a taxpayer has a grievance not otherwise remediable he can have redress through the state tax commission. (Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 624, 42 P. 2d 936; Thompson v. Chautauqua County Comm’rs, supra, p. 154.) The instant grievance is expressly made remediable by the injunction statute relied upon by appellant. (G. S. 1935, 60-1121.)
“Although it would be entirely appropriate and perhaps a good practice for a taxpayer to first present a grievance such as this to the commission 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.” (1. c. 425.)
Does the petition allege that the action taken by the commission was illegal? We think it does. On demurrer, allegations of a petition are to be taken as true. Here, they have been summarized in detail and it would serve little purpose to reiterate them. It is elementary that allegations of a petition of unconstitutional action by an official board charges illegality. As stated in the Sherwood case supra, courts cannot compel a taxpayer to first present to the commission a grievance such as is alleged in the petition when the legislature makes such remedy merely cumulative and not exclusive.
The question presented is one of public as well as of a private nature. It is important to many taxpayers and to taxing officials. The nature and importance of this question is one that should not be determined in the absence of full disclosure of all pertinent facts. We think it is a much safer and better practice to have issues joined by appropriate pleadings and to .have the case tried on its merits rather than to attempt to obtain a ruling on the important question of law by demurrer to a petition, which may not disclose all essential and material facts.
We do not now pass upon the question whether Magnolia is or is not a pipe-line company as defined in G. S. 1949, 79-701, et seq. We hold that the allegations of the petition and its exhibit, when given all reasonable inferences to which they are entitled, state a cause of action against the commission when tested by the demurrer.
The judgment is reversed with directions to the district court to overrule the demurrer and to proceed to hear the case upon its merits when issues are framed by appropriate pleadings of the parties.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellant) brought this action to recover from defendant (appellee) money alleged to have been wrongfully converted by defendant to his own use. From a verdict and judgment in defendants favor, plaintiff appeals.
The petition alleged plaintiff’s corporate existence and that defendant, an officer and employee of the corporation, wrongfully converted to his own use $11,100.00 as shown by an auditor’s itemized statement attached to the petition. It alleged request for repayment, defendant’s refusal, and prayed for judgment for the amount, interest and costs.
Defendant answered by way of a general denial. He further specifically stated that if any withdrawals from the corporation were made they were so made at the instance, request and order of W. E. Dixon, the president and general manager of the corporation; that Dixon insisted the withdrawals were dividends and that defendant was acting as the agent of Dixon in making the withdrawals; and that Dixon received and kept $7400.00 of such withdrawals and defendant, $3700.00. Defendant prayed that plaintiff take nothing and that he recover his costs. Plaintiff replied by way of a verified general denial. On the issues thus joined, the case proceeded to trial to a jury.
The evidence pertinent to the issues involved may be briefly summarized as follows:
With the exception of one share of stock, plaintiff corporation was owned entirely by W. E. Dixon, president and general manager, and defendant, Arthur E. Hicks, its vice president and treasurer. Dixon owned two-thirds (165 shares) of the stock, his wife, one share, and Hicks, one-third (eighty-four shares). The corporate business was plumbing, heating and appliances. In addition, it was engaged in building houses for resale. Plaintiff’s offices were located in its retail store, where Hicks acted as bookkeeper and clerk. Not only did Dixon own two-thirds of the stock, but Hicks was indebted to him for his shares. For all practical purposes, the business was operated in much the same manner as though individually owned by Dixon. Defendant had very little to say in making company policy. Dixon made the decisions in the business and acted as boss. The evidence disclosed that cash discrepancies first arose when Dixon, plaintiff corporation’s president, told Hicks they were paying too much income tax and he also wanted some money. For these reasons, Dixon requested that defendant withdraw cash from the corporation without reflecting such withdrawals on the books as either dividends or the reduction of capital. Hicks protested, but later consented to do so when Dixon told him the withdrawals would be treated as dividends and would be divided in proportion to their shares of stock. Defendant began periodically withdrawing $100.00 over a period of four years, dividing the amounts each time, two-thirds to Dixon and one-third to himself, the grand total being $7400.00 to Dixon and $3700.00 to Hicks. The amounts taken and distributed by defendant as mentioned were shown on the books of the corporation. Hicks made no attempt to conceal them because he always believed they would straighten the books out. Dixon had access to the books at all times and discussed the entries with defendant. Hicks testified that neither he nor Dixon considered they were stealing from the corporation — the idea was that it was their own money and they were the only ones interested. Dixon assured him that if there should ever be an audit of the books he would say the withdrawals were a reduction of capital stock. He also stated they had more than enough money in undivided profits and did not need so large an amount. Hicks denied that he at any time wrongfully converted any of plaintiffs funds to his own use. Dixon denied that he received any portion of the money or that he authorized defendant to withdraw any funds.
At the conclusion of the evidence, the trial court instructed the jury that the burden of proof in the first instance was upon the plaintiff to establish its contentions by a fair weight and preponderance of the evidence and that the essence of the plaintiff corporation’s right to recover, if any, against the defendant was the alleged wrongful and unlawful conversion by him of plaintiff’s money without its knowledge or consent and the application thereof by the defendant to his own use and purposes. The court said that conversion is defined in law to be any distinct act of dominion or control wrongfully exerted over the property or money of another in denial of the right of such owner and inconsistent with such rights and before the plaintiff can recover anything from defendant in the case the jury must be satisfied by preponderance of the evidence that the money involved is the property of the plaintiff corporation and not the property of the defendant and that the defendant wrongfully and without the consent of the owner took and converted the same to his own use. The jury returned a general verdict for the defendant.
Plaintiff filed a timely motion for a new trial, which was overruled, and judgment was entered by the trial court on the verdict. Sub sequently, plaintiff filed a second motion to reconsider and for a new trial on the ground of newly discovered evidence. This motion was overruled, from which orders plaintiff appeals.
Plaintiff contends the jury was told that the burden of proof in the first instance was on the plaintiff to prove its right to recover by a preponderance of the evidence. This is objected to on the ground that as to some of the specific issues the burden was on the defendant and the jury should have been so instructed. There was no objection to the instruction at the time it was given and the instruction, therefore, became the law of the case. (Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692; Wingert v. Mouse, 174 Kan. 239, 255 P. 2d 1007; and cases therein cited.)
Under our statute G. S. 1949, 60-2909, Fifth, if plaintiff desired more specific instructions it was its duty to make a request therefor. This court has repeatedly held that the failure of the trial court to instruct specifically on a given proposition cannot properly be as signed as error when no request for such instruction was made. (Jukes v. North American Van Lines, Inc., supra; Hill v. Hitt, 170 Kan. 721, 725, 228 P. 2d 713; Baker v. Western Cas. & Surety Co., 164 Kan. 376, 190 P. 2d 850; Foley v. Crawford, 125 Kan. 252, 264 Pac. 59.)
Plaintiff contends that defendant set up an affirmative defense. There is nothing in the record to warrant such a contention. Defendant denied he wrongfully took the money and he asked no' affirmative relief. It has been stated that a general instruction that the plaintiff has the burden of proving a right to recover is not objectionable, although some issues are involved as to which the burden is on the defendant. (Hail Association v. Surety Co., 97 Kan. 271; 155 Pac. 13; Thompson v. Dyson, 120 Kan. 591, 244 Pac. 867.)
Plaintiff asserts that inasmuch as the defendant retained $3700.00 and Dixon twice that amount it was entitled to judgment against defendant for $3700.00 and a new trial should be ordered. The trouble with plaintiff’s contention is that the case was not tried on that theory. The pleadings were framed and the case was submitted to the jury on the definite theory that defendant wrongfully converted plaintiff’s money to his own use. The jury, by its general verdict, found this issue in favor of the defendant. Inherent in that verdict was a finding of no wrongful conversion upon the part of defendant. Plaintiff’s contention is without merit.
Plaintiff finally contends that it should be granted a new trial on the ground of newly discovered evidence. At no place in the record is it revealed that any newly discovered evidence was presented to the trial court other than that which would have been available had the plaintiff used due diligence in obtaining it at the time of the trial, inasmuch as the statements contained in the proffered affidavit were at all times within the knowledge of its president, Dixon. Moreover, assuming the statements therein contained were correct, at most they could be but cumulative.
After a careful examination of the entire record and the theory upon which the case was tried and submitted, we find no error to justify a reversal. The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to recover damages under the wrongful death statute for the death of plaintiff’s son, alleged to have been caused by a defect in a county highway. A separate demurrer to the petition by one of the joint defendants, the Board of County Commissioners of Douglas County, was sustained, and the plaintiff appeals.
Does the petition allege sufficient facts to state a cause of action against the County Commissioners?
The petition discloses that the Board of County Commissioners of Douglas County (appellee) undertook to improve a county road known as the Sibleyville-Olathe road, officially designated as Road No. 208, about four miles south of Eudora, Kansas. At about 8:30 a. m., on June 10, 1954, the county employees of Douglas County were repairing the road by dumping gravel on the traveled portion thereof. The county engineer and the superintendent of roads of Douglas County were supervising the repair. At or about the tíme and place aforesaid and in repairing such road, a load of gravel was dumped on the traveled part of the north half of the road by a county employee, leaving a steep, abrupt and precipitous drop-off of approximately seven inches, which constituted a defect in the road. It was not visible to travelers on the road approaching from the east. At or about the time and place aforesaid a 1946 Ford 111 ton truck owned and driven by Howard E. Miller, a traveler on the road, encountered the gravel. Plaintiff’s son, John Rockhold, age 16, was an occupant of the truck riding on the left front fender while William Harralson, also an occupant, was riding on the right front fender. As the moving vehicle encountered the defect heretofore described, John Rockhold was violently thrown from the truck and killed.
The petition alleged acts of negligence on the part of other defendants, not material herein, who were charged with joint and concurring acts of negligence with the Board of County Commissioners. The negligence with which the petition charges the Board is stated as follows:
“. . . That the Defendant The Board of County Commissioners of Douglas County permitted said road hereinabove described to become and be unsafe and dangerous to the traveling public by the manner and method in which repairs were being made on said road on said 10th day of June, 1954, as hereinabove set out, and through failure to provide barriers, signs, notices, flagmen or other warning of the dangerous condition of said road.”
Prior to 1887 (Laws, 1887, ch. 237) counties, being quasi-corporate subdivisions of the state, were not liable in damages for injuries sustained by reason of the negligence of their officers or employees in the construction or maintenance of highways, bridges or culverts, or because of defects therein. (Arnold v. Coffey County Comm'rs, 131 Kan. 343, 291 Pac. 762.) By statute (Laws, 1887, ch. 237, revised and now G. S. 1949, 68-301), counties and townships are made liable under some circumstances in damages for injuries sustained because of defects in bridges, culverts and highways. . The present statute, so far as here pertinent, reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage . . . from the county when such damage was caused by a defective bridge, culvert or highway which by law, or agreement entered into pursuant to law, the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer or superintendent of roads and bridges of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; . . .”
This statute does not impose liability for general negligence. It is strictly a statutory liability for defects in bridges, culverts and highways.
It was said in Rosebaugh v. Allen County Comm'rs, 120 Kan. 266, 243 Pac. 277:
“. . . The legislature of 1917 imposed on a county undertaking to improve a highway, duty to maintain detour signs, warnings, barricades, and red lights at night. Failure to discharge this duty renders the county officers subject to prosecution for misdemeanor, but no civil liability was imposed on the corporation. (R. S. 68-121, 68-122.) If the county were suable to the same extent as a city, neglect to comply with a statutory regulation designed to make travel on a highway safer would entail liability to a person injured on account of the negliegnce. The county, however, as an agent of sovereignty, rests under no common liability for negligence of its officers. It is not subject to actions for damages except so far as the legislature has expressly provided. The result is, failure to discharge the duty imposed by the statute of 1917 merely renders the highway defective, and liability for the defect must be enforced under the statute of 1887. (Story v. Brown County, 116 Kan. 300, 226 Pac. 772.)” (p. 267.)
In Arnold v. Coffey County Comm'rs, supra, the court has fully analyzed G. S. 1949, 68-301, by enumerating the four elements that must be established before recovery can be had under the statute. There an exhaustive reference to Kansas cases, prior to 1930, as they apply to each of the four requirements is made. Without further elaboration specific reference is made to the Arnold case. In the instant case we are concerned with only one of these prerequisites— Does the plaintiff’s petition allege sufficient facts to show that any member of the Board of County Commissioners, the county engineer or superintendent of roads and bridges of Douglas County had notice of the defect in the highway as much as five days prior to the fatal injury?
Contrary to Kansas, some states have a theory of common law liability which is summarized in 40 C. J. S. Highways, § 250, p. 281, as follows:
“A distinction has been made by some authorities between acts of misfeasance and nonfeasance, it being held that the county or other governmental subdivision is not liable, unless made so by special statute, for injuries caused by its nonfeasance, as failure to repair the highway, although it is liable for direct acts of misfeasance on the part of its officers or employees which create a nuisance in the highway; but this distinction has been denied by other authorities.”
While appellant (plaintiff below) recognizes that Kansas adheres strictly to statutory liability, it is argued that this case may be dis tinguished from prior decisions of this court on the facts, and by reason thereof, G. S. 1949, 68-301, requires further construction.
It must be recognized that less than five days elapsed between the creation of the defect in the highway and the accident which caused the death of plaintiff’s son in the instant case. Therefore, it is impossible to meet the five-day requirement of notice in the statute.
Appellant argues that the defects in the highway were a creation of the county itself and by reason thereof it needs no actual notice because it is presumed to know its own acts, and therefore has actual notice. In support of this argument cases are cited from Maine, Nebraska, Wisconson, Texas and New York which have construed similar statutes or ordinances in accordance with appellant’s theory. Typical of the reasoning in these cases is Tewksbury v. City of Lincoln, 84 Neb. 571, 121 N. W. 994, where the court rejected the city’s contention that in the absence of a five-day notice, it was absolutely exempt. The opinion said:
“. . . the statute does not contemplate exemption from such negligent act; and, further, that all the knowledge that could possibly result from the giving of the notice, were it possible to give it, was already possessed by the city officers.
“. . . To hold that five days’ notice should be given for a wrong committed by the city itself one hour, or one day, before the occurrence of the accident, and of which the city already has absolute knowledge, would be in the highest degree ludicrous and attribute to the lawmaker a want of foresight, insight and comprehension which we cannot do. It is true that the statute provides that the city shall be ‘absolutely exempt from liability’ unless such notice be given, but we must give a reasonable construction to the language of the act. The law never requires an impossible thing. The section presupposes that the defect in the public way must have existed at least five days, otherwise the notice would be impossible. But, even if the notice should be held necessary where the defect is caused by the elements, or the unauthorized act of third parties, it could not with any degree of reason be said that it could be required where the danger was created by the negligent act of the city itself. Suppose a deep water or sewer-way trench was excavated across the street just before dark, and no lights or other signals of danger were, placed to warn those using the street of its condition, and a person in passing over the street in the dark' night, two hours later, with no knowledge of what had been done, should receive an injury by driving or falling into the opening, could one say, that the legislature had in mind such a circumstance and require the five days’ notice of the condition of the street? We think not. . . .” (pp. 573, 575, 576.)
(See, also, McMasters v. City of Lincoln, 101 Neb. 278, 163 N. W. 319; Adams v. The City of Oshkosh, 71 Wis. 49, 36 N. W. 614; City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693; Holmes v. Paris, 75 Me. 559; Morneault v. Inhabs. Town of Hampden, 145 Me. 212, 74 A. 2d 455; Twist v. City of Rochester, 55 N. Y. S. 850; Crandall v. City of Amsterdam, 4 N. Y. S. 2d 372; and 40 C. J. S. Highways § 263, p. 312.)
The language of an early Kansas case may have opened the way for the above construction of the statute in question:
“. . . This defect in the common law was remedied by the enactment of the statute in question; and the only effect of such statute was to bring a class of cases within the operation of the common law of negligence which hitherto had been without. This statute simply declared as to counties and townships what has always been the law with respect to cities, private corporations and individuals . . .” (Reading Township v. Telfer, 57 Kan. 798, 804, 48 Pac. 134.)
Subsequent development of the Kansas law on the precise point presented in this case, however, is contrary to the construction propounded by appellant. A case impossible to distinguish on the facts before this court is Rosebaugh v. Allen County Comm'rs, supra. While there the injuries were sustained at 9:30 p. m., the last three loads of gravel dumped on the county highway at 5:00 p. m. of the same day were not spread and thus caused a defect in the highway. The petition alleged the obstruction created by those three loads of gravel was left without warnings, guards, barricades or red lights from 5:00 p. m., to 9:30 p. m., on the day of the accident. The court there affirmed the judgment of the trial court which sustained a demurrer to the petition, saying:
“. . . Conceding that the chairman had actual notice of the defect because the board was doing the work, an indispensable condition of liability— notice for at least five days — did not exist.” (p. 268.)
This court has steadfastly adhered to the foregoing construction of the statute. (Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010; Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070; Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140; Arnold v. Coffey County Comm'rs, supra; and Backstrom v. Ogallah Township, 149 Kan. 553, 88 P. 2d 1026.)
Appellant argues that under the same circumstances as here presented Kansas cities are not entitled to notice (Gilmore v. Kansas City, 157 Kan. 552, 142 P. 2d 699), but counties do not rest under the same liability as cities for negligent street work. This argument was advanced and rejected in Wagner v. Edwards County, supra, and Hari v. Ohio Township, supra.
The legislature has enacted a statute (G. S. 1949, 68-419) almost identical to 68-301, supra, in its material respects creating statutory liability against the State Highway Commission. Cases decided under this statute are analogous to those decided under 68-301, supra. The State Highway Commission has not been held hable under 68-419, supra, for acts based upon the law of negligence, but is amenable to suit only in the event and for the purpose that the legislature has expressly consented that it be sued. In other words, the liability created is wholly statutory. (Lungstrum v. State Highway Commission, 177 Kan. 57, 276 P. 2d 346; and Bohrer v. State Highway Comm., 137 Kan. 925, 22 P. 2d 470.)
Despite the logic of appellant’s arguments, we are constrained to adhere to our prior decisions construing G. S. 1949, 68-301, and hold that the liability of a county for defects in a bridge, culvert or highway is conditioned upon the proper county official under the statute having actual knowledge of the specific defect which caused the injury for which damages are sought at least five days prior to the time when the damage was sustained. This construction of the statute has persisted through the reported cases in Kansas since the turn of the century, and the legislature has not seen fit to change it. Therefore, it must be presumed that the construction heretofore placed upon the statute conforms to the legislative intention.
Appellant urges that an outstanding example of the review, reconsideration and overruling of previous decisions deemed to have been erroneous is found in Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934, in which the court stripped from charitable hospitals the mantle of immunity from tort liability with which they had previously been clothed. We are not here confronted with a similar proposition, since this case concerns the construction of a legislative act which creates liability in accordance with its specific terms and likewise proscribes the limitations of such liability.
In view of the foregoing disposition of this case it is unnecessary to consider whether the petition discloses on its face that the injured party, John Rockhold, was guilty of negligence in riding on the fender of the truck just before receiving his fatal injuries.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Thomas J. Nordboe died in November, 1915, at the age of 86, leaving a will executed a few days before his death devising real estate to a sister-in-law and her two daughters. Otto Nordboe (that being the name by which he was generally known, although his real name was Otto Cushman) brought action against these devisees, claiming a right to the land by virtue of a promise that he should have it, made to himself and his mother by Thomas J. Nordboe, in consideration of agreements that had been performed on their part. The plaintiff recovered, and the-defendants appeal.
The court made special findings, the more material of which may be thus summarized: In 1884 the plaintiff, then seven years of age, and his younger brother Julius were taken into the home of Thomas J. Nordboe and his wife, to be reared by them. At this time Nordboe’s eyesight had begun to fail, and three years later he became totally blind. Mrs. Nordboe died in January, 1891, and Julius six months later. The plaintiff continued to live with Nordboe, doing such work as was customary for boys of his age, assisting Nordboe in going about the premises and acting as his companion when he left home. In the latter part of 1891 the plaintiff’s mother asked Nordboe to permit him to return to her home to be of assistance to her. He was unwilling to do so, saying that he was old and blind and in need of his services, and that if the boy was permitted to remain with him and serve him and work for him until of age he would at his death leave him all the property he might then own. An agreement was then made between Nordboe and the plaintiff and his mother that the plaintiff should remain with Nordboe and faithfully serve him and perform such work and services as a child would be expected to perform for a parent, until he should attain his majority, and that Nordboe in consideration thereof should leave him all the property he owned at the time of his death. Under this agreement the plaintiff was permitted to remain with Nordboe and did so, faithfully performing his part — serving him until he reached the age of twenty-seven.
The defendants ask a reversal on two grounds: that these findings do not support the allegations of the petition, and that they are not sustained by the evidence.
1. The amended petition, upon which the case was tried, alleged that a contract substantially like that set out in the findings, but including an agreement on the part of Nordboe to adopt the plaintiff, was made in 1884, just before the plaintiff entered the Nordboe home. The defendants argue that proof of a contract made in 1891 created a variance of such importance as to require a reversal, because a contract made in 1884 would have been in part for the benefit of Julius, and would not by his death have inured to the sole benefit of the plaintiff.
In addition to the averment already referred to, the petition alleged that Nordboe, after the plaintiff had entered his home, from time to time repeated and reiterated his promise and agreement. This language might perhaps, by a liberal construction, be so interpreted as to allow proof of a new contract to be made under it. We do not rest the case on that theory, however. We hold that, although the contract found to have been made was of a somewhat different character from that pleaded, because the relations of the parties were different in 1891 from what they had been in 1884, there is no such showing'or presumption of prejudice as to require a setting aside of the judgment. (Civ. Code, § 134, Gen. Stat. 1915, § 7026.) It does not appear that the defendants would have been better enabled to meet the evidence produced by the plaintiff if the petition had more clearly indicated its scope, or that upon another trial any more light could be thrown upon the matter.
2. The evidence concerning the transaction that took place in 1884 tends to show that it was then agreed that the boys were to live with Nordboe as his children, but that he then made no promise with reference to his property. There was, however, evidence of such a promise made in 1891. The plaintiff gave this testimony concerning a conversation between his mother and Nordboe after the death of Julius:
“My mother wanted to have him release me and come back. He said no, he had promised to do — if I would stay with him until I was — take care of him, at the, end of his death I was to have the property that was left. That is the substance of the conversation. I can’t repeat it word for word.
“Q. Stay with him how long? A. Until I was a young man.”
He also testified that he remained with Nordboe, who was totally and permanently blind, working for him — having so much to do that he could only attend school a part of the time; that he was there about 19 years, leaving in 1905, after talking about it with Nordboe, who made no objection.
Another witness gave this testimony concerning a conversation with Nordboe after the death of Julius :
“Well, he said — he told me whenever he dies all that which belongs to him Otto was going to have for his work in taking care of him. Always what is left over after his death that falls to Otto.”
Another witness testifying to a talk with Nordboe in October, 1915,said:
“I asked Uncle Tom if he had given Thanke his property after he was through with it. He spoke up quick: ‘No, no,’ he said, ‘after I am through with it it goes to Ott. That is what it belongs, and that is the contract, or agreement.’ He didn’t say contract, ‘That is the agreement.’ ”
There was other testimony of the same character. Some of it was open- to a different interpretation, but taken altogether we regard the evidence as sufficient to justify the conclusion that the contract described in the findings of the court had been made, and that the plaintiff had performed his part of it.
3. It is urged that the contract should not be enforced even if it is established that it was entered into and upon one side performed, because it was inequitable and because of the statute of frauds. The character of the services required, particularly in view of the decedent’s total blindness, was such as' in our judgment to relieve the contract from any imputation of inequity and to take the case out of the statute of frauds, if it would otherwise be applicable, which may well be doubted (Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164), on the ground that the amount of reasonable compensation in money could not be satisfactorily determined. (Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485; 5 Pomeroy’s Equity Jurisprudence, § 2248, pp. 5024-5025.)
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Maggie Kuhn, and Elmer Kuhn, the widow and only child of John Kuhn, jr., brought this action against his mother and two brothers, the purpose being to quiet the title of the plaintiffs to land which they claimed to own by virtue of an oral agreement between John Kuhn, jr., and the defendants, which had been' partly performed. The suit may perhaps be regarded as in the nature of one for the specific performance of the contract. A demurrer to the petition was overruled, and the defendants appeal, the principal question involved being whether it sufficiently appears that the contract, although not in writing, was rendered enforceable by part performance.
The allegations of the petition may be thus summarized: John Kuhn, sr., died owning a quarter section of land in Trego county worth $1,720 and, two quarters in Ellis county worth respectively $5,620 and $5,120. His will devised 240 acres to his wife, Barbara, to be selected by her, and 80 acres to each of his three sons, John, jr., Frank and Joseph, to be divided as the widow should deem best. She selected as her allotment the quarter in Ellis county referred to as worth $5,620, and the north half of the Trego county quarter. The remaining 240 acres not being capable of convenient division into three parts of approximately equal value, an agreement was entered into between the widow and three sons to this effect: Of the three eighties left after the widow’s selection for her own share had been made, the two in Ellis county were to be owned by Frank and Joseph. John, jr., was to have the one in Trego county, and in addition thereto the eighty in that county which had previously been selected by his mother, and an additional adjoining eighty to be purchased by her and Frank and Joseph. During her life the legal title to all this Trego county land was to be in the mother, and she was to receive one-fourth of the crop raised on the newly acquired eighty.' In pursuance of this agreement the additional eighty was purchased, the legal title being taken in the mother; John, jr., went into possession of the Trego county land, expending $3,000 in lasting and valuable improvements thereon; and he joined with his brothers in a quitclaim deed to his mother covering all the land referred to, in both counties. On the death of John, jr., the plaintiffs succeeded to his rights. His mother denies that they have any interest in any of the land.
1. A partial performance which includes the making of permanent improvements may take an oral agreement out of the operation of the statute forbidding the parol creation of a trust in lands (Gen. Stat. 1915, § 11674) as well as of that requiring contracts for the sale of realty to be in writing (Gen. Stat. 1915, § 4889). (Goff v. Goff, 98 Kan. 201, 158 Pac. 26; Oberlender v. Butcher, 67 Neb. 410.) The defendants do not question this, but argue that improvements made upon land by one who was already the owner of an undivided interest therein cannot affect the operation of either statute, because they must necessarily be referred to his preexisting ownership of a part,' and not to an oral arrangement for his becoming the owner of the remainder; and that this principle controls here because John Kuhn, jr., was a tenant in common of the Trego county land which his father had owned, and the improvements were made upon that tract. The general rule stated by the defendants finds at least apparent support in a part of the opinion in Nay v. Mograin, 24 Kan. 75.
In that case a mother and her three minor children had owned a tract of land, each having an undivided one-fourth interest. It had passed into the possession of other persons. The mother brought action for her one-fourth. The defendants claimed full title under a deed from the children and an oral purchase from the mother, supported by.possession and improvements. The trial court found for the plaintiff, and as there was no special finding to the contrary, this, if necessary to uphold the judgment, implied a decision against the defendants upon the issue of fact as to whether the improvements had been made in reliance upon an oral contract for the mother’s share. The judgment was affirmed, the court indicating that the defendants were foreclosed, by the decision •against them on the facts, but discussing also the rule already referred to as applied to the situation there presented. The portion of the opinion relating to this phase of the matter reads:
“The fact that no other deeds were given, makes strongly against their [the defendants’] claim of a purchase of plaintiff’s interest in the land. And evidence to sustain a parol purchase of land must be clear and positive.
“But conceding their understanding of the purchase to be correct, the statute of frauds interposes against them. They bought and paid; they took possession and improved. But payment will not take a parol purchase out of the statute of frauds; and possession and improvement must be referred to, and will be upheld under the written title they accepted. As purchasers of the minors’ interests, they had a right to the possession, and might lawfully enter and improve. They became tenants in common with plaintiff, with equal right to enter. No action of trespass would lie against them. (Edwards v. Fry, 9 Kan. 417.) ‘What, then! it may be asked,’ said Woodward, J., in Workman v. Guthrie, 29 Pa. St. 495, ‘can there be no sale of land by parol among tenants in common where all are in possession? Certainly not, because the statute of frauds and perjuries forbids, and .there cannot be such part performance as would take it out of the operation of that wise and salutary rule of titles.’
“So, where a party enters upon land under a written instrument purporting to convey the title of certain joint owners, he may not, upon a failure of the title thus conveyed, uphold a parol purchase from another joint owner by his entry and improvements. That which he does as an owner must be referred to that which apparently made him an owner. Part performance to uphold a parol purchase must be exclusive; must be referable solely to such purchase.
“We think it would be going much beyond established limits to enforce a parol purchase of an undivided interest in land upon the strength of part performance, when there was a written conveyance intended as a conveyance of the larger interests in the land, under which possession was in fact taken and improvements made. The melioration of the estate will he presumed to have been made on the faith of the title apparently conveyed. Acts which presume a conveyance will be referred to the conveyance, and that irrespective of the validity of that conveyance. We conclude, then, that both upon the findings and the testimony, the judgment of the district court was right.” (Nay v. Mograin, 24 Kan. 75, 78-80.)
It will be observed that the controversy as to whether the improvements were made in reliance on the oral contract was essentially one of fact, the decision .being made on that basis. If the language used be regarded as supporting the .view that improvements made by the owner of an undivided interest may never be referred to an oral contract for title to the remainder, it is out of harmony with the weight of authority. (36 Cyc. 666; 2 Reed on the Statute of Frauds, § 583; 5 Pomeroy’s Equity Jurisprudence, § 2241, p. 5008, note 16. See, also, Savage v. Lee et al., 101 Ind. 514.) In two of the texts cited, the doctrine of the impossibility of part performance of a parol sale by one cotenant to another is referred to as peculiar to Pennsylvania. As is pointed out in Emery v. Dana, 76 N. H. 483, inasmuch as one cotenant may take possession to the exclusion of the others, so that his holding becomes adverse as to them, such an occupancy accompanied by permanent improvements should be sufficient to take an oral contract out of the statute of frauds. Here the petition alleged that pursuant to the agreement referred to, John Kuhn, jr., with his family, moved upon the Trego county land in 1915, and placed the improvements thereon. The allegation is to be liberally construed and must be deemed to indicate that his possession was exclusive. Moreover, his relations to the property left by his father were quite different from those of an ordinary co-tenant. After his mother had selected her own share he no longer had any interest in the north half of the quarter section in Trego county. His rights with respect to the quarter section in Ellis county which she had not taken were qualified by the power given her to determine the apportionment among her three sons. In these circumstances the moving upon the Trego county land by John, jr., implying its treatment as a single tract, suggested a readjustment of the interests of the devisees — the distribution of his father’s land upon a different basis from that provided in the will. We conclude that the allegations of the petition were sufficient to render the oral agreement enforceable on the theory of a part performance. The allegations of the petition bring the case fully within the reasons of the rule permitting contracts otherwise unenforceable because not in writing to be given effect by reason of having been partially performed. If the plaintiffs’ predecessor in interest gave up his claims to the Ellis county land and in lieu thereof accepted the 240 acres of cheaper land in a body in Trego county, and in reliance on the agreement spent $3,000 in permanent improvements, it would be a fraud upon their rights to deny them relief because no writing had been signed. The contract alleged is obviously entire, and improvements upon any part of the 240 acres might afford a basis for its enforcement.
The defendants argue that the statement of the petition that during the lifetime of his mother, John, jr., was to pay her one-fourth of the crop raised on the additional eighty-acre tract shows that his occupancy was that of a tenant. If that would be the inference from this allegation standing alone it must yield to express averments to the contrary found in the pleading.
2. It is also contended that the petition is defective in not alleging that the fourth part of the crop on the additional eighty has been paid to the testator’s widow as required by the agreement pleaded. This payment was not of a part of the price to be paid for the land at the time of its purchase in such sense as to bring it within the rule making it a condition precedent to the enforcement of the contract.
3. The petition referred to the quitclaim deed to his mother as having been executed by John Kuhn, jr., after the improvements had been made, and as conveying all his interest in the land. The defendants seek to give this an interpretation indicating an actual transfer of the title independent of and subsequent to the contract. The deed is pleaded as having been executed in pursuance of the oral agreement, and no forced construction is required to interpret the petition as meaning that the agreement included a provision for the giv ing of this deed, to be effective as though made at once, in order to lodge formal title in the grantee for the purposes indicated.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This is an action for damages by an employee against his employer because of injuries sustained through the breaking of a rope on a drilling rig.
The defendant owned a rig for drilling oil wells. He had a foreman in charge of its operations. The plaintiff was employed as a “tool dresser” around and about the machine. Part of the equipment of the machine was a “temper screw” which was hoisted by means of a rope and pulley. At one end of the rope was an iron block which aided in balancing the weight of the screw. When the screw was to be hoisted it was the work of the plaintiff to climb on a post and platform and then add his weight to that of the iron block. In doing this one day the rope broke, causing the plaintiff and the iron block to fall, and the iron fell on his hand and severely injured it.
Plaintiff sued for damages, reciting at length all the pertinent facts, and alleged—
“Defendant, instead of equipping said drilling machine with a wire line or cable to operate said weight with said temper screw, operated said temper screw and iron weight as hereinbefore mentioned and described with a worn, old and rotten rope insufficient in size and strength, and the same had been used by defendant on said drilling rig for a long time— just how long plaintiff does not know — and said defendant knew or with due diligence and inspection of said rope might have known the same was worn, old and rotten and insufficient and impracticable for the use that it was employed and knew or with due diligence, which he failed to exercise, and inspection, which he failed to make, might have known that said rope would break between said weight and temper screw and that said weight would fall to the wooden platform beneath the same if said rope did break, all as hereinbefore mentioned and described; and that said rope did break on account of its size and condition being insufficient and defective, as hereinbefore alleged, as said rope was not strong enough for the purpose for which it was used.”
The defense was a general denial, assumption of risk, accident, and the plaintiff’s own negligence.
Special questions were answered by the jury:
“1. State the period of time the plaintiff has be*en engaged in the occupation of a tool dresser, prior to the injury. Answer: About six years.
“2. Was the plaintiff, at the time of the injury, an experienced tool dresser? Answer: Yes.
“3. If you find for the plaintiff, then state in what respect the defendant was negligent? Answer: Did not use proper rope.
“4. Did the plaintiff know, or in the use of ordinary care, should have known, the risks and dangers which he would normally and necessarily incur when he would climb up on the Samson post, catch the rope above the iron weight and throw the weight of his body against the rope to raise the temper screw? Answer: No.
“5. State if it is not a fact that the plaintiff knew about the insufficiency of the weight rope prior to his injury. Answer: No.
“6. Do you find that the rope used by defendant on temper screw and iron weight was insufficient in size and strength ‘for the purpose used, as charged in plaintiff’s petition? Answer: Yes.
“7. If you answer question 6 in the affirmative, then state if its condition was obvious and plain to be seen. Answer: No.
“8. If you answer question 7 in the negative, then state if the respect in which the rope was deficient was not discoverable on examination of it. Answer: No evidence to show the rope was examined.”
Verdict and judgment for $1,250 were rendered for plaintiff.
Defendant assigns various errors, the first being the overruling of his demurrer to the evidence. While the evidence tended to support the material allegations of the petition, the defendant urges that the plaintiff was guilty of contributory negligence, and also that he assumed the risk incident to his employment. Granting that there may have been some evidence tending to show the plaintiff’s negligence, that would not justify the termination of this lawsuit on a demurrer. The matter of plaintiff’s contributory negligence was a jury question. (Delaware &c. Railroad v. Converse, 139 U. S. 469.) Every disputed issue of fact in a common-law action between private individuals (Reihl v. Likowski, 33 Kan. 515, 520, 6 Pac. 886) is a jury question, unless a jury is waived. (K. P. Rly. Co. v. Brady, 17 Kan. 380; K. C. Ft. S. & G. Rld. Co. v. Owen, 25 Kan. 419.)
In K. P. Rly. Co. v. Pointer, 14 Kan. 37, 53, it was said:
“It is earnestly insisted by counsel, that the facts in reference to the conduct of the plaintiff (defendant in error), as they appear from the other findings, as well as from the testimony, show that culpable negligence- on his part which will relieve the company from responsibility. It seems to us matter«of great doubt, as we read the conduct of the plaintiff, as narrated either in the findings or the testimony, whether this claim of counsel is not correct, and whether plaintiff was not so negligent as not to be entitled to compensation. And perhaps this doubt is our best justification for upholding the verdict. This question of negligence is said to be a mixed question of law and fact. When the facts are disputed, it makes a question for the jury. When the facts are undisputed, and but one deduction is to be drawn from them, there is simply a question of law for the court. But where the facts, though undisputed, are such that when taken singly or in combination different minds will come to different conclusions as to the reasonableness and care of the party’s conduct, the question is one which may properly be left to the determination of the jury.”
The question of the assumption of risk, under the evidence, was also a question for the jury. There was nothing in the evidence to take this question out of the usual rule. It cannot be said that the hazard was so great that a prudent man would have hesitated to swing his weight on the rope, as the plaintiff did when he was injured; he had'been doing that frequently for many days before his injury. “Drilling an oil well is a somewhat rough-and-ready kind of business.” (Burnham v. Stith, 106 Kan. 461, 464, 188 Pac. 246.) Whether before his injury he noticed the defective character of the rope was a subject of sharp controversy, but certainly it was for the jury, not the court, to determine the question of fact involved in that controversy. (Whetzell v. Railway Co., 105 Kan. 289, and citations, 182 Pac. 409.) Nor can it be said that it was the duty of the plaintiff to inspect the rope. The defect was not obvious, as in Barnes v. Akins, 101 Kan. 359, and cases cited, 166 Pac. 474 (finding No. 7), and therefore the plaintiff might confidently rely upon his employer and the foreman to furnish a proper and sufficient rope, and that it would be replaced before it was so much worn as to be dangerous to use.
The demurrer to the plaintiff’s evidence was properly overruled.
Error is also assigned on the rulings of the trial court touching certain evidence stricken out and in restricting the examination of a witness. It was of important and perhaps controlling significance in this case to determine whether the plaintiff knew before he was injured that the rope was defective. While the foreman was on the stand as a witness for the plaintiff, on direct examination he testified:
“Worked for defendant on well in Douglas county, in 1917, as a driller. Mr. Bowers [plaintiff] was my tool dresser. . . ., Think the rope was about five-eighths. Might have been three-fourths. Do not know where it came from. It was with the tools when I went there. It had been used. ... I had called Mr. Mildren’s attention to the insufficiency of the rope some time before.”
On cross-examination, the same witness testified:
“It was an old rig. Seen quite a bit of service. Some parts of it worked good and some didn’t. . . .
“Q. When was it you talked to Mildren about the insufficiency of this rope? A. Well sir, I don’t just remember that.
“Q. Was it a week or two weeks before? A. I couldn’t say. I don’t think it was. . . .
“Q. ,How do you know that you talked to him about it? A. Well sir, as near as I can remember it I believe he helped me hitch on one day when Mr. Bowers was out at the boiler. And I think he was going to pull the screw up and I told him to be careful, watch the rope, it wasn’t safe.
“Q. Did you ever tell Bowers that? A. I don’t know whether I did or not. . . .
“Q. Now isn’t it a fact, Mr. Huggins, that Mr. Bowers talked to you about the insufficiency of this rope the day before he was injured? A. Yes. We both spoke about it beforehand.
“To which plaintiff objects as not cross-examination.
“Objection sustained. . . .
“Plaintiff moves to have the answer stricken out.
“Motion sustained.”
The foreman was then called as a witness for the defendant and questioned:
“Q. Mr. Huggins, now you may state whether or not you had any conversation with the plaintiff on the day prior to his injury in regard to the insufficiency of this rope?
“To which plaintiff objects as leading and suggestive.
“Objection sustained. . . .
“Q. Did you have any conversation about this rope on the day prior to the injury. ... A. I don’t just remember whether I did or not.
“Q. Well did you have it prior to the injury? A. It seems to me there was something said, but I don’t remember whether it was in reference to the rope.
“Q. I’ll ask you if you didn’t talk about this rope being insufficient?
“To which plaintiff objects as leading and suggestive.
“Objection sustained. . . .
“Mr. Bryant: Now if the court please, this is an unwilling witness.
“Mr. Wagstaff: I object to the statement of counsel.
“The Court: Objection sustained.
“Q. What was said, Mr. Huggins?
“To which plaintiff objects as assuming a proposition not in proof, and because the witness' said he couldn’t say.
“The Court: You may state what was said by either he or Mr. Bowers about this rope at any time before the injury, if you remember it. Anything that was said about it. A. Don’t remember just what was said.
“Mr. Wagstaff: His ansWer was, if your honor please, he didn’t re member that anything was said. Now he asks him to state approximately what was said. Assuming that something was said.
“Q. Just state in substance what was said.
“Mr. Wagstaff: Same objection.
“The Court: Sustained. He says he don’t know whether he remembers whether anything was said at all or not.
“Mr. Bryant: Well he does, if the court please, he does say he remembers something was said.
“The Court: Objection sustained.....
“Q. Now I’ll ask you to state if you and Mr. Bowers didn’t talk about this rope sometime before he was injured.
“Mr. Wagstaff: To which plaintiff objects as leading and suggestive, and having been gone over, and calling for a conclusion of the witness.
“The Court: Sustained. . . .
“Mr. Bryant: [Counsel for defendant.] I want to go back to that question I asked on cross-examination and was stricken out. I’d like to have the reporter refer to it.
“The Court: That’s passed. What do you want to go back to that for? To refresh your memory about something?
“Mr. Bryant: I want to offer it — my interrogatory and his answer- — at this time. I want to offer that as evidence for the defendant.
“Mr. Wagstaff: I submit it’s incompetent.
“The Court: Objection sustained.”
This court is agreed that these questions were competent and that the trial court would better have permitted the defendant to examine this witness more thoroughly. The witness had testified that he and the plaintiff had both spoken of the insufficiency of the rope the day before the plaintiff was injured. His testimony was stricken out on the ground that it was not proper cross-examination. Then it was ruled out when the defendant adopted the witness as his own and sought to develop the same fact on direct examination. The court did err, whether prejudicially or not, when it ruled—
“That’s passed. What do you want to go back to that for? To refresh your recollection about something? . . . Objection sustained.”
The only possible objection to that bit of evidence when it was first given was that it was not proper cross-examination, and it was not strictly error to rule it out at that time and for that reason; but to rule it out as direct evidence for no better reason than that it had once been stricken out because it was not cross-examination, was illogical. However, a majority of the court do not believe that these rulings of the trial court were prejudicial, because elsewhere it ruled:
“The Court: Well, if time and place is given, and a certain foundation, that can be done, but you have to make certain foundation for such a question as that.
“Q. Then I’ll ask you, Mr. Huggins, to refresh your memory, if you didn’t come to my office in the city of Independence on or about — Oh, some time about in the latter part of March or fore part of April, and there, in conversation with Mr. Mildren and myself, if you didn’t state to Mr. Mildren and myself that you and Mr. Bowers, or Mr. Bowers and you,' had talked about the insufficiency of this rope on the day prior to his injury?
“Mr. Wagstaff: To which plaintiff objects as hearsay and incompetent.
“The Court: Overruled. You may answer. . . .
“Q. Now Mr. Huggins, I’ll ask you to state — I’ll ask you whether or not Mr. Bowers ever said anything to you prior to his injury, concerning the insufficiency of this rope?
“To which plaintiff objects as calling for a conclusion of the witness, and incompetent, and having been gone over.
“Objection overruled. . . .
“A. I don’t just remember what was said in reference to it.
“Q. How is that? A. I don’t just remember what was said in reference to it.
“Q. Repeat the question.
“To which plaintiff objects as having- been gone over.
“Objection sustained. . . .
“Mr. Bryant: Repeat the question. He hasn’t answered my question.
“Mr. Wagstaff: Object to it.
“The Court: He says he don’t remember what was said.
“Q. I repeat that question. You may answer that yes or no.
“Mr. Wagstaff: Object to that as having been answered.
“The Court: I think he’s answered it. Says he don’t remember what was said. Objection sustained. You’re leading your witness. Asking if anything was said about the rope. But you’re leading the witness and asking him to say positively that something was said about the sufficiency of the rope, and he says he don’t remember what was said. . . .
“Q. I’ll ask you to state whether you ever had any conversation with Mr. Bowers prior to this injury concerning this rope?
“To which plaintiff objects as having been gone over.
“Objection overruled. ...
“A. Yes, I think we said something about being too small.
“Mr. Wagstaff: Move to strike out. He says he thinks.
“The Court: Overruled. . . .
“Q. When was that, Mr. Huggins? A. I couldn’t say. It’s been so long. I don’t just remember.
“Q. It was before you quit work; was it? A. Yes, sir.
“Q. And he quit work when he got hurt? A. Yes, sir.
“Q. And he said the rope was too small? A. I don’t know. There was something said.”
Whether the witness spoke inadvertently when he first testified that he and the plaintiff had discussed the insufficiency of the rope, or was trying to evade or conceal the fact of such discussion in his later examination, could better be determined by the trial court and jury than by us, and since the witness was repeatedly given an opportunity to state what the conversation was and repeatedly said he did not remember, this incident cannot be given so much significance as to disturb the judgment.
The next error assigned relates to the remarks of the trial court in the examination of the witness as set forth above and in similar colloquies between court and counsel as the trial progressed:
“Q. Was there a wire line with this outfit. A. There was a wire line right there—
“To which plaintiff objects as wholly immaterial.
“Mr. Bryant: The plaintiff charges, if the court please, that we failed to provide a wire line.
“The Court: You did. Through your foreman, Mr. Huggins.
“Mr. Bryant: And what we aim to show by this is that that wire line was on the job all the time.
“The Court: It would have been all right if Mr. Huggins had been injured. Then Mr. Huggins couldnit claim, because they furnished Mr. Huggins the wire line. But Mr. Huggins never furnished Mr. Bowers—
“Mr. Bryant: There’s no evidence here as to who furnished it. What we aim to show now is that it was furnished with the outfit, and he could go and get it if he wanted to.
“The Court: I’ll permit you to do that if you will show the tool dresser is the foreman over the driller. But under the evidence so far the driller is a foreman over the tool dresser, and he testified he was superintendent in the absence of the master or general contractor. If you can show that isn’t true I’ll permit you to do it. . . .
“Mr. Bryant: Inasmuch as plaintiff has made his opening argument and defendant has waived argument, he now objects to further argument on behalf of plaintiff.
“The Court: I have never called for further argument by the defendant yet. Don’t you know how you can waive it unless I call for it.”
It is urged that those remarks, being made in the presence of the jury in a “testy manner,” were prejudicial. In cold type we can see nothing material in the trial court’s remarks which would prejudicially affect the case before the jury. And the “manner” of the trial court is something which the record does not disclose. It is altogether aliunde the record, although counsel for the appellee, also aliunde the record, says there was something of fact in it. His brief says:
“It is perhaps true, as counsel suggests, that the court lost patience with him, but it seems unreasonable that an attorney can wear out the patience of the court by such procedure and then complain of the results of his course of action. ’ As far as prejudicing the jury is concerned we submit that counsel’s leading and suggestive questions and his frequent assumptions of fact were more apt to prejudice the jury than the attitude of the court.”
A petulant or caustic attitude on the part of the trial court, if the record disclosed such attitude, would only be serious if it were shown that it affected the jury and if we had some misgiving about the justice of the judgment rendered in the case. (Civ. Code, § 581, Gen. Stat. 1915, § 7485.) Nothing of that kind is discernible here.
Two instructions (Nos. 8 and 16) given to the jury are criticized. The first of these was a correct statement of pertinent law. In the second it was said that if the evidence showed that the defendant knew, or by due diligence might have known, that the rope “was worn, old and rotten or insufficient or impracticable,” etc., and that the plaintiff used ordinary care and prudence in its use, then the defendant would be liable. It is urged that there was no evidence that the rope was defective in any of these particulars. We hold otherwise. There was no direct evidence that the rope was “rotten,” but otherwise there was some evidence to support all these alleged defects, and since the rope had adequately served for a time, and then broke, the jury could properly infer that the defects were substantially as characterized. (Rickel v. Railway Co., 104 Kan. 453, 457, 458, 179 Pac. 550.)
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
E. L. Fairbanks, J. M. Clover, D. Vensel, Frank Wolfe, and D. B. Golden appeal from a judgment in favor of the plaintiff under the workmen’s compensation act of 1911. The action was commenced by the plaintiff against Deering J. Marshall, the Commercial Refining Company, C. C. Whittaker, the Seven Fields Oil and Gas Company, E. L. Fairbanks, J. M. Clover, D. Vensel, Frank Wolfe, D. B. Golden, and S. C. Clover. A demurrer to the evidence of the plaintiff was sustained as to the Commercial Refining Company, the Seven Fields Oil and Gas Company, and C. C. Whittaker, and was overruled as to the remainder of the defendants. Evidence for the defense was introduced by them; a verdict for the plaintiff was returned against Deering J. Marshall, E. L.Fairbanks, J. M. Clover, D. Vensel, Frank Wolfe, and D. B. Golden; and judgment was rendered on the verdict. The questions presented arise out of the demurrer of the appellants to the evidence of the plaintiff.
1. The plaintiff was injured while working on machinery that was then being used in drilling for gas or oil. The appellants argue that they were not owners or operators of the property at the time the plaintiff was injured, January 7, 1917, and that therefore they were not liable to him for compensation. Numerous leases of the property for the purpose of developing gas and oil, and numerous assignments of those leases were introduced in evidence. By those leases and assignments it was clearly shown that the appellants at one time were owners of interests in the property. John Risher testified that he was employed as field man and superintendent in charge of drilling on the property from October, 1916, to April, 1917, and that he recalled the incident of the plaintiff being injured while working on the lease. Risher further testified that from October, 1916, to January 15, he was employed by Frank Wolfe, J. M. Clover, S. C. Clover, E. L. Fairbanks, D. Marshall, D. Vensel, P. Elliott, and ilenry Rutherman; that he employed Harvey J. Spencer for Frank Wolfe and others to pull the casing; that he knew who owned the lease and interest in the well in which they were working; that it was those parties whom he named as Frank Wolfe and others; that he was not employed by the Commercial Refining Company at the time the plaintiff was hurt; that the Commercial Refining Company took charge of the work on the 15th, about eight.days after the plaintiff was hurt, and did not have anything to do with the operation of the lease until after January 15. That evidence was sufficient to establish the fact that the appellants were operating the property, and compelled the overruling of their demurrer to the plaintiff’s evidence.
But the appellants argue that they had been divested of their interest in the property at the time the plaintiff was injured, by a sale of their rights therein to L. C. Riley and C. C. Whittaker under a written contract dated October 16, 1916, but which, it is contended by the plaintiff, and there was evidence to support that contention, did not take effect until after the plaintiff was injured. There was also evidence which tended to show that the Commercial Refining Company was operating the lease and paying the bills at that time. A question was thus presented on conflicting evidence, and on a demurrer thereto, the evidence most favorable to the plaintiff must be considered and the other be disregarded. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.) Under all the evidence the jury could have found that the appellants were operating the lease, or could have found that they were not, but that it was being operated by the Commercial Refining Company. The finding of the jury on that evidence is necessarily conclusive.
2. Another question argued by the appellants is that the evidence showed that the plaintiff was working for Lawrence Spencer, who the appellants claim was a subcontractor, and that therefore Lawrence Spencer was liable to the plaintiff for compensation. Lawrence Spencer testified in substance that he was working as manager of a casing crew known as the Santa Fe casing crew; that the plaintiff and four other men constituted the crew; that he collected for them, and generally got the gang together; that he got labor hire and five cents on the dollar for collecting; that the men paid him out of their salaries; that he called whomsoever he wanted to go; that they were working for the lease owner; that he got the checks cashed and then divided up the money at times, and at other times the members of the crew were paid individually; and that in this particular instance he was given the check for the whole crew. That evidence does not establish that Lawrence Spencer was a subcontractor; it does establish that he acted for his four companions; that they worked together; and that part of the time he received the wages for all and divided them. The court was compelled to overrule the demurrer of the appellants to the evidence of the plaintiff so far as this question was concerned, and the jury was justified in finding from the evidence that the plaintiff was not working for himself or for Lawrence Spencer, but was working for the appellants.
Even if the plaintiff was working for a subcontractor when he was injured, section 5898 of the General Statutes of 1915 fixes on the appellants liability for compensation to the plaintiff. That section in part reads:
“Where any person (in this section referred to as.principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, references to the principal shall be substituted for references to the employer, except the amount of compensation shall be calculated with reference to the earnings of the workmen under the employer by whom he is immediately employed.”
3. The appellants in their brief state that—
“It was sought by the defendants in the trial of this case to establish the fact that this plaintiff, being the manager of the Santa Fe casing crew, was responsible for the injuries of the men whom he employed, being a subcontractor. The evidence showed that the plaintiff hired these men and paid their salaries, and supplied new men when needed.”
The court is unable to ascertain that this statement corresponds with the evidence as abstracted. That evidence shows that the plaintiff was hired substantially as has been set out.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
On November 25, 1919, J. H. Coffman, proceeding under sections 3874-3889 of the General Statutes of 1915, filed his petition with the board of county commissioners of Saline county, asking that the board establish and maintain drainage ditches on the southeast quarter of section 7 in Elm Creek township, in that county. Afterward to that petition the respondents filed their protest and plea, to which Coffman filed a demurrer, which was sustained by the board of county commissioners. From the order sustaining the demurrer the respondents appealed to the district court, where the order of the board of county commissioners was affirmed. From the judgment of the district court the respondents appeal to this court.
The protest and plea of the respondents, in substance, alleged that in 1891 the board of county commissioners of Saline county, after notice had been duly served on all parties interested, established a ditch and drain across the southeast quarter of section 7 in Elm Creek township in Saline county. The respondents further alleged:
“Your said protestants further say, that all the lands involved in the petition of Nov. 25th, 1919, are the same as the lands involved in the said petition of July 17th, 1891, and that all of the parties owning the lands involved in the petition of November 25th, 1919, are either the same persons, or holding their title under the persons who were parties to said proceeding, under the petition of July 17th, 1891.”
1. The respondents argue that the board of county com-missioners, in the hearing and determination of the protest and demurrer, were exercising judicial functions. It is true that in the determination of the question presented the board of county commissioners must have considered the legal effect of the protest and of the demurrer thereto; and it is true that when the board comes to make an order establishing or refusing to establish the ditch, it must exercise sound judgment and discretion, but that will not render the power exercised by the board a judicial one. Many, if not all, administrative boards and officers, when acting under the law, must exercise judgment and discretion and often come to conclusions on disputed questions of fact and of law; but it has not been supposed that on account of the necessity for determining such questions these administrative boards and officers have been exercising judicial powers or functions. The board of railroad commissioners and its successors, the public utilities commission and the court of industrial relations, the charter board, the “blue sky” board, the bank commissioner, the insurance commissioner, the tax commission, and the state auditor, are administrative boards and officers, and they often exercise powers partaking of a judicial nature, or quasi judicial powers ; but they have not, by reason of the exercise of those powers, been exercising judicial functions. In the administration of county affairs, the board of county commissioners, the county superintendent, and the county auditor exercise like judgment and discretion in performing the several duties that have been imposed on them by the legislature; but in the ex ercise of these powers, although involving judgment and discretion and the determination of questions of fact and of law, these officers have not been exercising judicial functions.
Probably the closest parallel to the present situation that can be found is the power exercised by the board of county commissioners in establishing public roads'. The authority conferred by the statute on the board of county commissioners is practically the same in each case; the duties performed are very similar. If the powers exercised in the one instance are judicial in their nature, they must be.in the other; and likewise if the powers are not judicial in the one, they must not be in the other. In Flagel v. Jackson County, 83 Kan. 709, 112 Pac. 622, an appeal was taken from the order of the board of county commissioners establishing a road. There this court said:
“That appeal was taken under section 2094 of the Genera] Statutes of 1909 (Gen. Stat. 1868, ch. 25, §30). While the language of the statute is broad, it is limited in its application; the district court exercises only judicial power, and the establishment of roads involves legislative and administrative power. Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125; Kent v. Comm’rs of Labette Co., 42 Kan. 534.) It is true that the jurisdiction of a district court to review on proceedings in error an order of county commissioners establishing a road has been upheld (Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; Comm’rs of Chase Co. v. Cartter, 30 Kan. 581; Howell v. Redlon, 44 Kan. 558), but that remedy was not pursued in this instance. An appeal was taken under the statute referred to, which, had it been sustained, would have required a trial de novo of the matters heard and determined by the board in laying out the road.” (p. 711.)
The conclusion reached in' the Flagel case is supported by Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125, 1 Pac. 261, and by Kent v. Comm’rs of Labette Co., 42 Kan. 534, 22 Pac. 610. In Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, the court used this language:
“The assessment of the property of the State, being then an incident to the taxing power, which is wholly legislative and not judicial, may well be ascertained by agents appointed under the law; but in no sense under our constitution can such agents be considered judicial officers. It is true, that their duties require of them judgment and discretion; but this is also true of most of the duties of ministerial and executive officers, but this does not make them judicial officers, nor constitute them courts, or render their conclusions judicial acts.” (p. 507.)
(See, also, Ross v. Comm’rs of Crawford Co., 16 Kan. 411; Comm’rs of Lyon Co. v. Sergeant, 24 Kan. 572; The State, ex rel., v. Mohler, 98 Kan. 465, 471, 472, 158 Pac. 408.)
The board of county commissioners v/as not performing a judicial function when it sustained the demurrer to the protest of the respondents.
2. The respondents argue that they had the right to appeal to the district court under section 564 of the code of civil procedure (Gen. Stat. 1915, § 7468). What has been said concerning the powers exercised by the board of county commissioners in establishing a ditch necessarily determines that the respondents had no right to an appeal under that provision of the code. There are two other statutes that probably should be noticed before this question is finally disposed of. One of these is section 2568 of the General Statutes of 1915, which reads:
“Any person who shall he aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
However, the conclusion reached in Flagel v. Jackson County, 83 Kan. 709, 112 Pac. 622, disposes of the respondents’ right to appeal under this section of the statute. The other law to which reference must be made is section 3880 of the General Statutes of 1915, which provides for an appeal from the board of county commissioners to the probate court in proceedings of this nature. This statute was under consideration in Shreves v. Gibson, 76 Kan. 709, 92 Pac. 584, where it was held that the statute “is not void as an attempt to devolve' legislative functions upon a judicial tribunal” (syl. ¶ 1) for the reason that the appeal is to a commission to be appointed by the probate court, and not to the court itself. The respondents did not avail themselves of the right given by section 3880, and the court does not know of any other statute giving to them a right to appeal from the order of the board of county commissioners.
3. Although what has been said necessarily disposes of this appeal and compels its dismissal, the respondents present another question- which will be noticed. They contend that the order establishing a ditch on the land in question in 1891 precludes an order establishing another ditch on the same land at a subsequent time. The presentation of an application to any of the administrative boards or officers of the state or county and the action of the board or officer thereon, either granting or denying the application, do not preclude a second application of the same.parties to the same board or officer asking for the same, or another, or an additional order, nor preclude such board or officer from making an order thereon. The order made in 1891 did not preclude the board of county commissioners from making another order on the petition out of which this appeal arose.
The appeal is dismissed.
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff, Glenn Warner, and the state of Kansas, intervener, claimed that a certain tract of land in Ford county was an island in the Arkansas river, and, as such, that it was state school land. Warner entered upon the disputed property with intent to perfect his right thereto as a school-land settler. The defendants claimed the tract, or most of it, as riparian owners, and thát they held fee titles thereto. The land in dispute lies mainly between the original government meander lines of the Arkansas river in that locality.
The jury made special findings, all of which were approved by the trial court. The most significant of these read:
Questions propounded by plaintiff.
“1. Q. Did any portion of the land' claimed by the plaintiff originate as an island? A. No-.
“2. Q. Did all that portion of the land claimed by plaintiff lying south of the north channel of the Arkansas river, as the said river is designated on the plat filed by the plaintiff, and north of what has been termed the old channel of the river, as indicated on the plat, originate as an island? A. No.”
The jury found specifically that the north bank of the river in that locality had remained unchanged since the time of the government survey in 1868, and that the original meander line on the north bank coincided with a later (Fonda) survey.
Other questions, propounded by defendants, were answered:
“5. Q. Was the so-called south or abandoned channel in existence at the time the U. S. government made its survey of the lands adjoining the river? A. No.
“7. Q. Was the so-called south or abandoned channel cut through or made at some flood stage of the river by the water breaking over the south bank and running over and across the lands adjoining the river, after making of the United States government survey? A. Yes.
“8. Q. If you answer the last preceding question in the negative, then state if the U. S. government surveyed and disposed of the lands north of the so-called south or abandoned channel. A. Government sold certain lots north of so-called abandoned channel.
“9. Q. Are lots 5 and 6, section 36; lots 5, 6, 7 and 8 of section 35, and lots 7 and 8 of section 34, township 27, range 22, or any portion or portions thereof, as originally surveyed by the U. S. government, located north of the so-called south or abandoned channel? A. Yes.”
Judgment was entered for defendants, and the plaintiff and intervener appeal.
The issue in this case was whether the land settled upon by plaintiff was or had been an island- lying between the meander lines of the Arkansas river in Ford county for such duration of time as to give it permanency. It does not show on the government plat nor in the United States surveyor’s field notes made in 1868, so it must be assumed that if an island did exist thereabout in 1861 or 1868, it was ignored as a part of the federal domain, and passed to Kansas as an incident to the state’s sovereign proprietorship of the bed of the stream. (Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041; The State, ex rel., v. Akers, 92 Kan. 169, 140 Pac. 637; Wilson v. Zutavern, 98 Kan. 315, 158 Pac. 231; Corbett v. Cohen, 100 Kan. 348, 164 Pac. 264; Brenneman v. Fleming, 101 Kan. 393, 166 Pac. 482; Stogsdill v. Minor, 103 Kan. 790, 176 Pac. 643; Wear v. Kansas, 245 U. S. 154.)
It is not contended by the defendants that they own all the land which is claimed by the plaintiff and the state as school land. What they do contend is that a very considerable part of the disputed tract is theirs by virtue of government patents and mesne conveyances deraigned therefrom. There is considerable evidence in the record tending to show that the government surveyors in 1868 had done loose and inaccurate work in that locality. There was testimony that no government monuments, stones, or charred stakes, could be found south of the river for about twelve miles, and scarcely any north of the river for six miles. It is also suggested that the meander line of 1868 on the south side of the river was a mere paper survey and did not correspond with any possible measurements which could have been made. The meander line north of the river was determinable from permanent monuments, certain rocks on the river bank, and the “Santa Fe Trail” which ran nearby. The want or disappearance of the government monuments had necessitated several later surveys, the so-called “Fonda” survey north of the river and the “Mather” survey on the south side. From a calculation based upon measurements between the river and recognized monuments located many miles south of the river, a considerable surplus of land was disclosed. In apportioning this surplus (doubtless in the best of faith and in the exercise of his best judgment), Mather, one of these later surveyors whose work has been generally accepted and acquiesced in, allotted part of this surplus to lands north of the southern meander line of the river. And but for the fact that the government monuments north of the river were so obvious, and the northern meander line of the river so readily ascertainable, the Mather apportionment of surplus land would have inured to lands north of the river. But as that line could not be shifted, this apportionment of Mather’s could be placed nowhere except in the river bed. Because of this surplus of land, a surveyor who testified for plaintiff and intervener, said:
“Q. How do you account for this land that you have described between the north boundary of the lots and the south channel of the river as it now exists? A. Well, I should judge that at the time of the survey, the inaccuracy of the government making these surveys, and being such a surplus east of that in coming up the line, that it has been a large island there and the government did not take it into consideration by not knowing it was there. I never could figure out how they could have such' a vast surplus along the Kiowa and Edwards county line'.”
In Foskuhl v. Herzer, 77 Kan. 809, 91 Pac. '56, the “Fonda” and “Mather” surveys are discussed. But it attaches altogether too much significance to the Mather survey to argue ■that because that survey discloses such a large tract of land in the river bed there must have been an island there which the government surveyors ignored in 1868. This great area of land in the stream bed is partly due to Mather’s division and apportionment of the surplus. If Mather had given a larger proportion of the surplus to the twelve tiers of sections to the south, or had disposed of it at other intervals, the surplus in the river bed would have been less, and the conjectured existence of an island in the river in 1861 or 1868 would not have arisen.
But it is true that the evidence shows that there was an island which existed for some length of time in that locality. It was known by early settlers as Titus’ island. Titus lived on it, and cut and sold hay from it. Titus patented it (findings 8 and 9), and the defendants, or one of them, holds the fee by .a chain of conveyances from Titus. Another curious incident which the evidence disclosed, if true, was that Warner’s house, as a school-land settlement, is located further south than was the settlement cabin of Titus thirty-five years ago. Be that as it may, the plaintiff and the intervener have not established the first primary essential to the maintenance of this lawsuit— the existence of an island unsurveyed by the federal government, lying between the meander lines of the river, to which the proprietorship of the state could attach, so that it might be acquired by plaintiff as state school land.
It is not enough to justify a disturbance of the judgment to point out that the evidence conflicts with the jury’s finding No. 1. Two juries have made the finding that no portion of the land claimed by the plaintiff originated as an island. (Warner v. Snook, 102 Kan. 814, 172 Pac. 521.) At the former trial the judge first set aside that finding as contrary to the uncontradicted evidence, but later he changed his ruling, and held that the jury could compare the soil on the disputed tract with the soil of the mainland south of the- river, and could properly conclude from their similarity that the disputed tract did not originate as an island.
This lawsuit is largely another fact case. There was no error in admitting the evidence of the Fonda survey, nor of the government field notes. Defendants would have a grievance if these had been excluded. The fact that the government field notes have been discredited in other litigation by the Mather survey, and that private rights, public roads, etc., have been established thereunder, does not disqualify the Fonda survey and the field notes as admissible evidence on the question whether there is or ever was an island thereabout to which the state may lay claim. While conflicting deductions may be made by giving validity to both the Fonda and Mather surveys, the Fonda survey, which coincides with the indisputable monuments of the first government survey, cannot be ignored, The fact that there is a large surplus of land thereabout to squabble over does not prove that this surplus is island school land. Even if it be conceded that the evidence is insufficient to sustain findings 1 and 2, the appellants cannot prevail. It was for them to prove the contrary to the satisfaction of the jury. This, in two trials, they have failed to do; and this litigation should not be protracted any further.
The judgment is affirmed.
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The opinion of the court was delivered by
Hall, J.:
This appeal arises out of an action to recover for personal injuries resulting from an automobile collision.
This case was tried to a jury which returned a verdict for the defendant. The plaintiff thereafter filed his motion for a new trial which was overruled and this appeal is taken from the verdict of the jury and the judgment of the court overruling plaintiff’s motion for new trial. The essential facts are not in dispute but the following summary is necessary in order to comprehend the issues of the appeal.
The accident occurred on December 23, 1952, at approximately 3:45 p. m. at the intersection of First Street and Emporia Avenue in Wichita. The plaintiff was proceeding east on First Street and had stopped his automobile at the intersection to obey a red signal light. The plaintiff’s automobile was followed by an automobile driven by a Reverend Irving O. Conradson. The red light changed and Conradson was coming to a stop behind the plaintiff when the defendant’s automobile ran into the rear end of the Reverend’s automobile and pushed it into the rear end of plaintiff’s automobile. Conradson was not injured in the collision. The damage to plaintiff’s automobile was light. He repaired his own automobile and made no claim for property damage in the lawsuit.
At the conclusion of the evidence, the court instructed the jury and the jury answered the following special questions:
“1. Was the defendant Walter W. Wallis guilty of any act or acts of negligence which were the proximate cause of the collision in question.
“Answer: No.
“2. If you answer Question 1, ‘yes’, state what such act or acts of negligence were.
“Answer: (No answer.)
“3. Was the collision in question the result of an unavoidable accident?
“Answer: Yes.”
In accordance with the verdict of the jury, judgment was entered for the defendant. A motion for new trial was filed and overruled.
Plaintiff appeals and makes three specifications of error.
His principal contention is that the verdict of the jury was contrary to the evidence and the court erred in overruling his motion for new trial on this ground.
To substantiate this contention, plaintiff really only brings one point to the attention of the court which is best summarized in the following testimony of the defendant Walter W. Wallis.
“Q. Speak a little louder, please.
“A. I made a stop at the stop light at Topeka on First Street, going east; then after the light changed I went on and at about the alley there, just before you strike the ‘Y’ — the old Y. M. C. A., is when this accident occurred. I put my foot on the brake and slipped off and this car in front of me, I bumped this preacher’s car.
“Q. Do you know approximately how fast you were going at that time?
“A. In my opinion, I was going about 12 or 15 miles per hour.
“Q. Did you have your foot on the brake, sir?
“A. Yes, sir.
“Q. You think you had your foot on the brake immediately prior to the accident?
“A. Yes, sir.
“Q. And how did it slip off?
“A. Well, it just slipped. That’s all. Putting pressure on, it slipped. I was probably out a little to the edge. Anyway, it slipped.”
On cross-examination, the defendant further said:
“Q. Then when did you first see it (Stephenson’s car)?
“A. When I was in the neighborhood of twenty feet behind it. That isn’t when I first saw the car; that is when I applied my brake and my foot slipped. Yes, sir.
“Q. Does your foot usually slip off of your brake?
“A. Not very often.
“Q. About how many times does your foot slip off your brake a week or year?
“A. That has probably been the only time in thirty-five years of driving.”
Plaintiff contends that defendant’s testimony that “his foot slipped off the brake” established his negligence as the sole and proximate cause of plaintiff’s damages as a matter of law. Plaintiff cites the following cases in support of his contention: Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870; Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593; Berry v. Weeks, 146 Kan. 969, 73 P. 2d 1086; Leathers v. Dillon, 156 Kan. 132, 131 P. 2d 668; Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271; Kansas Transport Company v. Browning, 219 F. 2d 890; and Bottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P. 2d 1004.
These authorities do not fully substantiate plaintiff’s claim. They are essentially decisive on other issues.
A foot slipping off a brake has been determined to be a jury question and not negligence as a matter of law.
In the case of Strauch v. Bieloh, 16 Cal. App. 2d 278, 60 P. 2d 582, the court said:
“. . . Even though her foot did slip from the brake in trying to apply it in an emergency, that does not prove that she was negligent in that regard. It merely indicates that she saw the emergency and was trying to avoid it.”
While this court has never decided this specific point, it has held that the failure of brakes tt) hold at the time of an accident did not constitute negligence as a matter of law. In Calnon v. Cook, 178 Kan. 517, 289 P. 2d 731, the court said:
“. . . Plaintiffs argue the failure of defendant’s brakes to work at that particular time and place constituted negligence as a matter of law. There was substantial evidence that just a few minutes before the collision, with which we are dealing, defendant had driven down several grades and turned several corners and the brakes on the truck had worked. It was not until he was confronted with this herd of cattle in the road ahead of him and he attempted to use his brakes that he discovered they were not working. There was also evidence that master brakes, such as those with which this truck was equipped, go out suddenly and without warning. The evidence is not entirely clear as to the part defendant’s emergency brakes played in the accident. However all the surrounding facts and circumstances upon which reasonable minds might differ as to defendant’s negligence were sufficient to warrant the question being submitted to the jury.” (p. 520.)
These decisions are in line with the general rule that the defendant’s negligence in the operation of a motor vehicle is a question for the jury. Where there is a reasonable doubt as to the facts or as to the inference to be drawn from them; i. e., where reasonable men may differ as to the existence of such negligence, negligence in the management and control of an automobile just prior to an accident is likewise a jury question. See 5 Am. Jur., Automobiles, § 673.
In this case the defendant was not guilty of negligence as a matter of law because “his foot slipped off the brake” and the court was correct in submitting the question of negligence to the jury and in upholding its verdict.
Plaintiff also contends the court should have sustained his motion for new trial on other grounds. We have made an examination of the entire record before us and find no reversible error. There is no showing plaintiff moved to set aside the answers to the special questions.
In its first question, the jury found that the defendant was not guilty of any act or acts of negligence which were the proximate cause of the collision. There was substantial and competent evidence to support the jury’s finding.
This court cannot concern itself with the weight of the evidence. Although plaintiff makes no contention that the court abused its discretion, it is obvious that if we were to sustain his position we would have to test the credibility of the witnesses, weigh the evidence, and assume the position of the trier of the facts which we have heretofore decided is the very thing our long fine of decisions hold we cannot do. (Dunn v. Madden, 109 Kan. 94, 197 Pac. 1116; Stoskopf v. Stoskopf, 173 Kan. 244, 245 P. 2d 1180; Smith v. Wichita Transportation Corp., 179 Kan. 8, 293 P. 2d 242.) In Dunn v. Madden, supra, the court said:
“. . . The rule consistently followed in this court for more than a half century is that this court on appeal cannot weigh conflicting evidence nor pass upon the credibility of witnesses. That is the function of the jury who are in a better attitude than this court to determine these questions. We cannot set aside the finding of a jury based on conflicting testimony because of tire greater number of witnesses who gave adverse testimony nor because the evidence in record form may seem to us to preponderate against the finding. . . .” (pp. 95 and 96.)
In the third question the jury was also justified under the instructions in finding that the collision was the result of an unavoidable accident. The court instructed the jury on “unavoidable accident.” Plaintiff made no objection to this instruction and under the well settled rule of this jurisdiction the instruction became the law of the case (Frazier v. Royal Life & Cas. Ass’n., 158 Kan. 533, 148 P. 2d 503; Kerby v. Hiesterman, 162 Kan. 490, 178 P. 2d 194; Baker v. Maguire’s, Inc., 176 Kan. 579, 272 P. 2d 739; Bishop v. Huffman, 177 Kan. 256, 278 P. 2d 588).
The instruction was not erroneous as a matter of law and within the exception of the above rule. (Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859; Engle v. Bowen, 122 Kan. 283, 251 Pac. 1108; In re Estate of Erwin, 170 Kan. 728, 228 P. 2d 739; Byas v. Dodge City Rendering Co., 177 Kan. 337, 279 P. 2d 252.)
In cases such as these, the jury is the trier of the facts and not this court. It made its verdict and the trial judge approved its verdict. From the record before us we are not justified in substituting our judgment for that of the jury. We find no reversible error.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
W. T. Bean was charged in the district court of Rice County on an information containing two counts: the first count charged him with the theft of 65 sacks of cement worth more than $20; the second count charged him with cheating and defrauding a Mrs. Minnie Patterson, Lyons, Kansas, an elderly woman, by means of false pretense. Following trial and a verdict of guilty on both counts he appealed to this court, which reversed the judgment of conviction, and directed that he be granted a new trial (State v. Bean, 179 Kan. 373, 295 P. 2d 600). At the second trial, which commenced January 21, 1957, the defendant was tried only on the first count of the information charging grand larceny, which, following a jury trial, again resulted in a verdict of guilty. The defendant has appealed from the orders of the district court overruling his motions for a new trial; to set aside the verdict; and, to set aside the judgment and sentence of the district court.
Bean was employed by Mrs. Patterson to construct a house in Lyons and to repair and remodel other houses owned by her in that city. In order to complete the work it was necessary to procure cement and he ordered a total of 200 sacks from the Lyons Lumber Company in two lots of 100 sacks each. The cement was delivered at different times and stored in different garages at the work areas on the Patterson properties. The cement was charged to Mrs. Patterson and paid for by a representative of her estate following her death. After the completion of the Patterson job, the defendant was charged with having directed some of his workmen to transport 65 sacks of unused cement to his home in Hutchinson where it was placed in his garage and later used by him in the construction of a tool house on his premises.
Claudie Healey was one of the chief witnesses for the state, and he testified that he was an employee of Bean on the Patterson job and that the defendant directed him to take his (Bean’s) % ton Dodge pick-up truck and haul 65 sacks of cement from the Patterson job to the defendant’s home in Hutchinson. The pick-up truck was secondhand having a model A bed without sideboards; it did not have dual tires or overload springs, and the cement sacks, weighing 96 pounds each, were stacked in rows across the bed. Healey hauled the cement in two loads: 30 sacks on the first load and 35 on the second. On the first trip he was accompanied by his twelve-year-old son Johnnie Healey, and another of defendant’s employees, a Bonnie Harper; on the second trip, two other workmen accompanied him. The cement was placed in the defendant’s garage. Later Healey and Harper assisted the defendant in building a tool house with the cement hauled from Mrs. Patterson’s premises. On two different occasions the defendant asked Healey to falsify his testimony about hauling the cement to Hutchinson.
The defendant did not testify in his own behalf. Ernest Muller, a witness for the defendant, testified that the cement used to construct the tool house was sack cement purchased from a lumber company in Hutchinson and that only 15 sacks of cement were hauled from Mrs. Patterson’s “old garage” to the defendant’s home where it was unloaded on the south side of his home, but that cement had been damaged by rain, had become hard in the sacks and was unusable.
Seledy Davis and J. W. Lewis, testifying on behalf of the defendant, stated they had a conversation with Claudie Healey during the first trial in which he said he had better go home and coach his son because he was going to take him to the trial at Lyons the next day and that he was “posting him,” and that, “If they don’t stick that guy I won’t get no $200.00.” also that Healey stated the “prosecutor” was going to pay him the $200.00. In rebuttal, the state called Claudie Healey and he denied he had been promised $200 to testify, or that he had any conversation with anyone concerning payment for testifying. On cross-examination he admitted the county attorney had told him he would lose no pay while attending court and that he would be paid the equivalent of his wages; that he expected to get $8.80 a day as he was then earning that amount, and his travel expenses; that he was paid 75$ per hour for being in attendance for two days as a witness at the first trial following which “he and the county attorney went around the court house and got two different checks which he cashed at the court house” and that he got both checks at the same office. The clerk of the court testified that the stautory witness fees and mileage for all state witnesses for both trials was still unpaid.
The state called Bonnie Harper as a rebuttal witness. An objection was made to his testifying because his name was not endorsed on the information as a witness for the state. The county attorney made no request to endorse Harper’s name, and upon his statement that Harper was called as a rebuttal witness, the district court overruled the objection. Harper testified he presently resided in Texas, and when asked the question whether he had ever helped haul any cement from Lyons to Hutchinson for the defendant, an objection was made on the ground that it was improper rebuttal testimony and related solely to the state’s case in chief. The objection was overruled and the witness testified he helped haul approximately 65 sacks in two loads, which came from two different garages at the Patterson place, contrary to the testimony of Ernest Muller that fifteen sacks of damaged cement was taken from one garage; that he helped take the cement to Hutchinson where it was stored in Bean’s garage, contrary to the testimony of Muller that it was placed on the south side of Bean’s house; that the cement used in constructing the tool house came from Bean’s garage and was the same cement he had helped move from Lyons to Hutchinson, contrary to the testimony of Muller and the defendant’s wife, Mrs. Bean. The district court held that Harper’s testimony was proper rebuttal, and stated, “Ordinarily it would have been introduced in chief but there has been testimony on the part of the defendant’s witnesses contradicting these matters so I am admitting it as rebuttal testimony.”
The defendant first contends it was error to permit Harper to testify without his name being endorsed on the information, and that his testimony was clearly improper rebuttal and should not have been admitted in evidence. The point is not well taken. While Harper’s name was not endorsed as a witness on the information, he testified in rebuttal, and his testimony, in the main, contradicted new facts and circumstances brought forth by evidence on behalf of the defendant. In the course of his testimony he testified to some facts which might have been proper in the state’s case in chief, however, it was impossible to separate that evidence from evidence which was proper rebuttal. Moreover, facts testified to by him which might have been proper in the state’s case in chief, were, at most, merely cumulative of other testimony on behalf of the state. The rule is that evidence offered in rebuttal, which might have been part of the state’s case in chief, is not improperly received when it tends to contradict some new fact or circumstance brought forth by the defendant’s testimony (State v. McGlade, 165 Kan. 425, 428, 196 P. 2d 173). In State v. Beam, 175 Kan. 814, 267 P. 2d 509, this court, in answer to the contention there made that certain evidence was not competent because it was a part of the state’s case in chief and therefore improper rebuttal, said:
“. . . There are two short answers to these contentions. The first is that under the confronting circumstances this evidence was properly admitted on rebuttal for the purpose of refuting defendant’s claim. . . . The second is, that under our decisions (see The State v. Gibbs, 105 Kan. 52, 181 Pac. 569; The State v. Abrams, 115 Kan. 520, 223 Pac. 301; The State v. McReynolds, 118 Kan. 356, 360, 234 Pac. 975; State v. Haines, 128 Kan. 475, 477, 278 Pac. 767), the admission of such evidence, even though it be assumed it pertained to the state’s case in chief, did not prevent the defendant from having a fair trial and affords no sound ground for reversal of the judgment. . . .” (1. c. 816, 817.)
While it is the duty of the county attorney to endorse on the information the names of all witnesses known to him and he should do so, we do not think it fatal to the prosecution nor prejudicial to the defendant that Harper’s name was not endorsed since he was properly called as a rebuttal witness. In State v. Tassell, 87 Kan. 861,126 Pac. 1090, it was said:
". . . Under the statute it is the duty of the county attorney, of course, to make the indorsement, so that the defendant may make inquiry concerning the standing and credibility of the witnesses who are to testify against him. The requirement, however, is not so mandatory or essential that noncompliance with it necessarily invalidates the information or defeats the prosecution. . . .” (1. c. 863.)
In State v. Wood, 118 Kan. 58, 233 Pac. 1029, it was held:
“On the trial of a criminal action it is not error to permit a witness whose name is not indorsed on the information to testify in rebuttal.” (Syl. ¶ 1.)
Other decisions in support of this rule are State v. Medlicott, 9 Kan. 257, 262, 282; State v. Scott, 1 Kan. App. 748, 752; State v. Morris, 131 Kan. 282, 283, 291 Pac. 742; and, State v. Zeilinger, 147 Kan. 707, 709, 78 P. 2d 845. Under all the facts and circumstances presented by this record, it was not error to permit Harper to testify as a rebuttal witness, and his doing so did not result in prejudice to the defendant.
The defendant argues that the county attorney was guilty of misconduct which deprived him of a fair trial. The contention involves two witnesses who testified for the state: Claudie Healey and Bonnie Harper. With respect to Harper, the contention is that the county attorney forwarded him a ticket and expense money to come from Texas; that when Harper arrived in Lyons the day before the trial he contacted the county attorney and later spent that night with Claudie Healey in Hutchinson; that contrary to fire district court’s order that all witnesses, except the defendant, be excluded from the courtroom during the trial and remain with the sheriff until called, Harper was kept by the sheriff in another place in the court house and his presence was unknown to the defendant until he was called as a rebuttal witness.
The record shows that Harper, when contacted by the county attorney, was a day laborer and without sufficient funds for transportation to Lyons and had no money with which to pay expenses. In 1951 the legislature enacted the reciprocal Uniform Act (Ch. 354, Laws 1951, G. S. 1955 Supp. 62-2801, et seq.) providing for the compulsory attendance of a witness for the state in a criminal prosecution who resides in another state, upon payment in advance of .10^ a mile and $5 for each day he is required to travel, and although Texas, where Harper resided, had also adopted the provisions of that act (Vernon’s Ann. C. C. P. Art. 486a, et seq.) the county attorney was not required to follow its procedures in arranging for Harper’s voluntary return to Kansas. The provisions of the Uniform Act are not mandatory and need not be followed where a wit ness living in another state agrees to voluntarily return to the place of trial. In such a situation, we know of no public policy which precludes a county attorney from advancing funds for a witness’ necessary transportation and expenses to the place of trial, upon being satisfied that such witness is financially unable to pay the same. Here, the county attorney might have followed the provisions of the Uniform Act, but he was not required to do so. The processes of this state are not so ineffective that a county attorney, in arranging for the voluntary attendance of a witness such as Harper, may not advance necessary transportation and expenses to secure his attendance in lieu of envoking the provisions of the Uniform Act.
During the hearing of the motion for a new trial counsel stipulated that although the defendant did not know of Harper’s presence' during the trial, he was not in the courtroom during the course of the trial in violation of the court’s order excluding witnesses, until he was called as a rebuttal witness. The fact that the sheriff may have kept Harper separate from the other witnesses, thus preventing the defendant from knowing of his presence, did not in itself prevent the defendant from having a fair trial, or induce Harper to be untruthful in his testimony.
Continuing with the defendant’s contention that the county attorney’s arrangement with the witnesses deprived him of a fair trial, he asserts the county attorney’s agreement to pay Healey’s expenses and the equivalent of his wages during the time he attended both trials was contrary to public policy, resulted in prejudice to him, and deprived him of a fair trial.
The payment to Healey the equivalent of his wages while he was a witness at the trials was fully explored by the defendant on cross-examination. It is clear Healey understood the purpose and basis for the payments and when asked about them, made full disclosure. That testimony tended to bear directly upon his credibility as a witness. The jury heard him testify, observed his demeanor, and was the sole judge of his credibility and the weight to be given his testimony. It is evident the arrangement did not affect the jury’s verdict. Under the facts and circumstances disclosed by this record we cannot say the arrangement between the county attorney and Healey, a material witness for the state, whose sole livehood depended upon his being employed daily, was inducive of perjury, resulted in the perversion of justice, or the corruption of our courts, or was prejudicial to the defendant.
The defendant lastly contends that he was not guilty of larceny of the cement. He argues that while the cement was charged to Mrs. Patterson and owned by her, he had the custody and control of it at all times as her agent, and that if any crime was committed, it was the crime of embezzlement as defined in G. S. 1949, 21-545. The point is not well taken. One of the leading and most recent cases of this court concerning this question is State v. James, 157 Kan. 703, 143 P. 2d 642, where the court made a thorough analysis of the distinction between larceny and embezzlement, and quoted with approval from 125 A. L. R. 371, as follows:
“ ‘Where personal property belonging to the master or employer is feloniously converted by a servant or employee having at the time a mere custody of the property, as distinguished from the legal possession thereof, the offense is generally held to be larceny.’ ”
In the opinion it was said:
“. . . where the accused has the mere custody of the property and the legal possession is still in the owner, if the wrongdoer makes away with the property with intent to deprive the owner of it permanently his offense is larceny; whereas if lawful possession is conferred on the wrongdoer as where property is entrusted to a bailee or trustee, a later conversion to his own use by the wrongdoer is embezzlement — unless at the time possession is conferred on him he already has formed the wicked intent to convert it to his own use, in which case the offense is classified as larceny. . . .” (1. c. 706).
The record before us suggests that the defendant was an independent contractor and not an employee of Mrs. Patterson. Re that as it may, it is clear that his custody of the cement and his use of it in constructing, repairing and remodeling her houses never amounted to legal possession, and when those jobs were completed any right to the temporary custody or use of the cement terminated. All the necessary elements of larceny were present in this case, and the district court did not err in its instructions to the jury.
Other objections are made, but they are obviously immaterial and do not warrant discussion.
The evidence fully supports the conviction, and our review of the record convinces us the defendant was not deprived of a fair trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order refusing to appoint one of the several sons of a decedent as administrator and a judgment granting administration to a person having no interest in such estate.
Rosa Farabi, a resident of Crawford County, Kansas, died intestate on April 6, 1955, leaving as her only heirs at law Marino Rondelli, John Rondelli, Joe Rondelli and Frank J. Rondelli, sons by her first marriage to Frank Rondelli; also Angelo Farabi, Mary L. Blessant, Hugo Farabi and Pete Farabi, children by her second marriage to Louis Farabi; and Lana Lee Farabi, Terry Farabi and Stephen Farabi, children of her deceased son, Barney Farabi.
Within a few days after decedent’s death Frank J. Rondelli filed a petition praying for the appointment of her son, Joe Rondelli, as: administrator of her estate. Thereafter the Farabi children filed a petition requesting the appointment of Mary L. Blessant as administratrix of such estate. It may be stated, that from that time on, both in probate and district courts, all the Rondelli children actively participated in efforts to have Joe Rondelli appointed administrator while all the Farabi descendants were equally active in advocating the appointment of their sister, Mary L. Blessant, as administratrix.
Following a spirited hearing the probate judge of Crawford County denied both petitions for administration and made an order appointing Robert O. Karr of Girard, a disinterested person, as administrator of the decedent’s estate. It is interesting to note that in connection with its orders and judgments that court made the following finding:
“The court further finds that both Joe Rondelli and Mary L. Blessant are competent persons to serve as administrator herein; but due to the two antagonistic factions among the heirs as represented by these two persons and that a just, fair and equitable administration of this estate will require a firm and impartial person to conserve the estate and promote the just interests of all concerned, the court finds that neither Joe Rondelli nor Mary L. Blessant are suitable persons to be appointed administrator herein.”
The respective petitioners promptly perfected appeals to the district court from the foregoing orders and judgments. Thereafter such appeals came on for hearing on the merits in district court where, after a de novo trial in which all parties were represented by counsel and had an opportunity to and did present evidence in support of their respective positions with regard thereto, that court, on September 18, 1956, made the following findings:
“Thereupon evidence was introduced by the parties herein and the Court finds that Joe Rondelli represents the Rondelli heirs, and Mary L. Blessant, formerly Mary L. Farabi, represents the Farabi heirs, and that two antagonistic factions have developed among the heirs as represented by these two persons and that a just, fair and equitable administration of this estate will require a firm and impartial person to conserve the estate and promote the just interests of all concerned; and the Court finds that neither Joe Rondelli nor Mary L. Blessant are suitable persons to be appointed administrator herein.
“The Court further finds that Robert O. Karr, a practicing attorney of Girard, and a resident of Crawford County, Kansas, is a competent, suitable, disinterested and proper person to be appointed administrator of said estate, and that on the 31st day of August, 1955, the Probate Court of Crawford County, Kansas, appointed Robert O. Karr as administrator of the estate of Rosa Farabi, deceased; that he qualified as such administrator, and that Letters Testamentary were issued to him on said August 31, 1955, which letters have not been revoked and are still in full force and effect as of this date; and that said order of the Probate Court of Crawford County, Kansas, entered herein on August 31, 1955, should be sustained.”
And, based on such findings, rendered its judgment ordering and directing “that the order of the Probate Court of Crawford County, Kansas, entered herein on August 31,1955, wherein the said Probate Court appointed Robert O. Karr as administrator of the estate of Rosa Farabi, deceased, is sustained.” and “that the matter herein stated be certified by the Clerk of this Court to the Probate Court of Crawford County, Kansas, for further proceedings.”
In passing it should perhaps be noted that the foregoing findings, orders and judgment are copied verbatim from a journal entry which the court, itself, was forced to prepare and sign without approval of the litigants’ attorneys who, after a hearing, were unable to agree upon the form and contents of that instrument.
Upon rendition of the foregoing judgment Frank J. Rondelli filed a motion for a new trial and when it was overruled perfected the instant appeal wherein, under proper specifications of error, he is entitled to a review of questions raised as grounds for reversal of the judgment.
The first contention advanced by appellant is that the district court’s judgment is erroneous because it failed to make an independent finding upon the merits of the cause and merely affirmed, adopted and ratified the order and judgment of the probate court. The trouble with all arguments advanced on this point is that appellant misconstrues the force and effect to be given such judgment as reflected by the journal entry. Resort to excerpts from that instrument, as heretofore quoted, discloses specific findings to the effect neither Joe Rondelli nor Mary L. Blessant were suitable as fiduciaries, that the best interests of the estate of the decedent, and all persons concerned therein, required the appointment of some other person, whether interested in the estate or not, and that Robert O. Karr was a suitable, disinterested and proper person to be appointed as administrator of the estate. In the face of such findings it cannot be successfully argued the district court did not make an independent order of its own upon the record presented. This, we may add, is true notwithstanding its over-all judgment sustains the order of the probate court appointing Karr as administrator of the decedent’s estate.
The general rules governing the disposition of an appeal such as is here involved have been considered, discussed and applied in at least two of our decisions, involving somewhat similar facts and circumstances, and are now so well-established that there can be no serious dispute respecting them. For that reason, and since it is well to have such principles in mind in disposing of further conten tions made by the appellant requiring their application, we shall make reference thereto at this point.
In In re Estate of Anderson, 168 Kan. 299, 212 P. 2d 375, we held:
“G. S. 1947 Supp. 59-705 pertaining to the appointment of an administrator of a decedent’s estate does not compel the appointment of one of the next of kin who is unsuitable to discharge the trust.
“In order for a next of kin to qualify as an administrator under the first classification of G. S. 1947 Supp. 59-705 such person must be not only competent but suitable as well.
“In determining the question of suitability the appointing court is of necessity clothed with wide discretionary power and where the record fails to disclose an abuse of such power the decision will not be disturbed on appeal.” (Syl. ÍIU, 2 & 5.)
See, also, In re Estate of West, 165 Kan. 483, 195 P. 2d 616, where it is held:
“. . . (2) die probate courts, and on appeal the district courts, of this state are vested with discretionary power in determining whether persons are suitable to act as administrators, and such power when exercised will be upheld unless abused (G. S. 1947 Supp. 59-705).
“In determining who is entitled to be appointed administrator under the first classification to be found in G. S. 1947 Supp. 59-705, the court vested with the appointing power is only required to give consideration to persons who seek to be appointed to the position or are selected by those who would, except for their selection, be eligible under its terms to be considered as applicants therefor.
“A person entitled, under the first classification of G. S. 1947 Supp. 59-705, to be considered for appointment as an administrator of an estate or to select some third person for that position waives those rights by failure to assert them.” (Syl. ¶¶ 1, 2 & 3.)
For a more general discussion, on the subject of preference in the appointment of administrators under the Kansas probate code, supporting principles laid down in the foregoing decisions, see 2 Bartlett’s Kansas Probate Law And Practice § 631, pp. 176 to 181, incl.
Another rule to be remembered in disposing of contentions, presently to be considered, is to be found in In re Estate of Osborn, 179 Kan. 365, 295 P. 2d 615, where, with specific reference to our review of findings made by a district court, in an appeal from probate court, in a proceeding instituted under existing provisions of the probate code, it is held:
. “On appeal findings of fact will not be disturbed if supported by substantial competent evidence, and in the determination of that question the appellate court does not weigh the evidence but is concerned only with whether it supports, or tends to support, the findings as made by the trial court. (Following Pearcy v. Williams, 163 Kan. 439, 183 P. 2d 243, and other decisions cited in the opinion.)” (Syl. f 3.)
• With rules established we now turn to additional questions raised by appellant as grounds for reversal of the judgment. The first of these, and we may add the one which, from the standpoint of his brief and oral argument, appeal's to be considered by appellant as the most important, is that there was no evidence of record showing or tending to show, as the trial court found, that Joe Rondelli was not a suitable person for the appointment as administrator of his mother’s estate.
Much of appellant’s argument on the point now under consideration is based upon the proposition that Joe Rondelli was competent to act as administrator. To concede this claim does not mean that such arguments are entitled to consideration or weight in determining whether the record discloses any evidence to support the trial court’s finding that he was not suitable.
See In re Estate of West, p. 486, supra, where it is said:
“. . . Under our statute a person who seeks appointment as an administrator at the hands of a proper court must be both competent and suitable. He may be competent. He may not be disqualified. Even so in the eyes of the appointing power he may not be a suitable person. By its use of the word suitable’ we think the legislature intended to and did vest the probate courts, and on appeal the district courts, of this state, with discretionary power in determining whether persons were unsuitable to act as administrators which when exercised must be upheld unless abused . . .”
See, also, In re Estate of Anderson, Syl. ¶ 2, supra.
In view of appellant’s persistent, somewhat heated and oft repeated statements to the effect there was no evidence whatsoever of unsuitability of Joe for the appointment we have made an extended examination of the record and have carefully scrutinized the testimony of each and every witness testifying for the respective parties. Having done so we are convinced it would do the contesting litigants no favor and be of no benefit to the bench and bar of this state to encumber this opinion by detailing its contents. It suffices to say that our examination of the record in the manner just indicated discloses some express testimony, and other testimony from which proper inferences might be drawn, to the effect that for at least ten years prior to the death of Rosa Farabi there has been misunderstanding, discord, strife, bad feeling, suspicion and antagonism between the direct descendants of Louis Farabi on the one side and the direct descendants of Frank Rondelli on the other.
Confronted by such evidence, and applying the rule of In re Es tate of Osborn, supra, heretofore quoted, this court is forced to conclude there is substantial competent evidence of record to sustain the trial court’s factual finding that two antagonistic factions have developed among the heirs represented by Joe Rondelli and Mary L. Blessant and that its conclusion with respect thereto cannot be disturbed.
One further question is entitled to consideration in disposing of the present claim of error. Is substantial competent evidence of the character heretofore quoted sufficient to uphold the trial court’s finding and judgment that neither Joe Rondelli nor Mary L. Blessant are suitable persons to be appointed administrator of the estate of Rosa Farabi, deceased? The answer to that question is to be found in one of our own decisions to which we adhere. See In re Estate of Anderson, p. 302, supra, where it is said:
“Here we have two antagonistic factions among the heirs. It was obvious to the trial court, as it is to us, that a just, fair and equitable administration of the estate would require a firm and impartial hand to conserve the estate and promote the just interests of all concerned. A qualified disinterested person was a wise choice under these circumstances.”
No one questions the competency or suitability of Robert O. Karr to be appointed administrator of the decedent’s estate. Therefore the trial court’s judgment in sustaining the probate court’s action in appointing him to that position must be upheld unless there is some other sound legal reason which makes him ineligible. Appellant argues this appears because under the circumstances the district court had no discretion other than to appoint either Joe Rondelli or Mary L. Blessant. In view of our conclusion the evidence was sufficient to uphold the trial court’s finding that neither Joe nor Mary were suitable for the appointment this claim lacks merit and cannot be upheld. (In re Estate of Anderson, Syl. ¶ 1, supra.) If perchance it be contended that under the statute (G. S. 1949, 59-705 [1]) some of the other heirs were eligible for the appointment or any heir had a right to request the selection of an administrator the existing circumstances do not warrant the upholding of any such contention. The record discloses all such rights had been waived by failure of the persons named in such statute to assert them. (In re Estate of West, Syl. ¶ 3, supra.)
We find nothing in the record or in the contentions advanced by appellant to warrant a reversal of the judgment. Therefore it must be and is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This is an action to recover for damage to plaintiff's property caused by defendant city when it lowered the grade of Third Street, which abuts the property in question.
Plaintiff has appealed from an order sustaining defendant’s demurrer to the second amended petition, hereafter referred to as the petition. .
Rather than attempt to summarize the detailed allegations of the petition, and in the interest of accuracy, that pleading, omitting formal parts, is set out in full.
“For its cause of action against the defendant, plaintiff alleges and states:
“(1) That the plaintiff is the owner of Lots 9 and 10 in Block 16, in the City of Hugoton, Kansas, on which is located two buildings and other appurtenances used for commercial and business purposes; that said property is bounded on the immediate west by Main Street, and on the immediate south by Third Street, and that Monroe Street is the first street to intersect Third Street east of Main Street.
“(2) That in June, 1920, by a majority vote of the governing body, the defendant hired a firm of consulting engineers to establish grades for sidewalks, and a grade was established for sidewalk purposes at the intersection of Third and Main Streets; that blue prints showing the grade of such sidewalk are on file in the office of the City Clerk; that in March, 1920, by a majority vote of the governing body, the defendant hired a firm of consulting engineers to make a drainage survey of the townsite and to establish grade lines on streets; that such survey established street grades in a manner which provides for proper surface drainage of said city; that the consulting engineering firm so employed by defendant prepared blue prints showing the said street grades, but such blue prints have been lost or misplaced and cannot be found; that in April, 1928, by a majority vote of the governing body, the defendant employed consulting engineers to prove the former survey establishing grade and also for the purpose of curbing, guttering, grading, and otherwise improving certain streets; that such survey proved the street grades previously established in a manner which would provide for proper surface drainage of said City; that the consulting engineer so employed by defendant prepared blue prints showing the grade of said streets for the said street improvement project, but such blue prints have been lost or misplaced and cannot be found; that by Ordinance No. 155, dated June 27,1930, defendant formally established a grade on Main Street at the intersection of Third Street in accordance with the previous surveys herein mentioned and thus approved and adopted said surveys establishing street grades; that a copy of said Ordinance No. 155 is hereto attached as Exhibit ‘A’ and by this reference made a part hereof; that by Ordinance No. 229, dated March 20, 1945, the defendant formally established a grade on Monroe Street at the intersection of Third Street in accordance with the previous surveys herein mentioned and thus approved and adopted said surveys establishing street grades; that a copy of said Ordinance No. 229 is hereto attached as Exhibit ‘B’ and by this reference made a part hereof; that by Ordinance No. 278, dated September 25, 1952, the defendant provided that the grade of certain portions of Third Street be formally established in accordance with the previous surveys herein mentioned and thus approved and adopted said surveys establishing street grades, but no actual work was performed as a result of said ordinance; that a true copy of Ordinance No. 278 is attached hereto as Exhibit ‘C’ and by this reference made a part hereof; that there are blue prints on file in the office of defendant showing that a grade has been established on Third Street at its intersection with Main Street and at its intersection with Monroe Street; that by Ordinance No. 143, dated November 12, 1929, defendant established a sewer district to serve the inhabitants of defendant city, a true copy of which ordinance is attached hereto as Exhibit ‘D’ and by this reference made a part hereof; that as a result of said Ordinance No. 143 and as a result of a survey made by the consulting engineering firm employed by defendant, tire main sewer line was placed under Third Street and elevation levels were established for the sewer manhole covers which were placed on the surface of Third Street, all as shown by blue prints on file in the office of defendant.
“(3) That during the first half of the year 1955, the defendant excavated Third Street and lowered its grade approximately two feet at a point immediately south of the southwest comer of plaintiff’s property, and thence deeper in an easterly direction to a depth of approximately ten feet at a point immediately south of the southeast comer of plaintiff’s property, which work was completed on or about June 25, 1955.
“(4) That the lowering of the grade of Third Street along the south side of plaintiff’s property seriously impaired ingress to and egress from the same, and impaired its value for commercial and business purposes, and necessitates and requires the relocation of tire buildings and improvements thereon; that the fair market value of plaintiff’s property was reduced in the amount of $3,000.00, and the cost of relocating the buildings on said real estate is $900.00 as a result of lowering said grade, which amounts plaintiff is entitled to recover from the defendant.
“(5) That on September 13, 1955, plaintiff filed in the office of the Clerk of defendant a verified ‘Notice of Claim for Damages,’ a true copy of which is hereto attached as Exhibit ‘E’ and by this reference made a part hereof; that said claim has not been allowed or paid.
“Wherefore, plaintiff prays for judgment against the defendant in the amount of $3,900.00, with interest thereon at the rate of six per cent per annum from June 25, 1955, together with the costs of this action, and for such other and further relief as is just and proper.”
For purposes of this opinion, it is considered unnecessary to set out in full the various exhibits referred to.
G. S. 1949, 12-632, provides:
“The governing body of the cities of the second and third class may by ordinance establish the grade of any street or alley in said city, and when the grade of any street or alley shall have been so established said grade shall not be changed until a resolution shall have been passed by a three-fourth’s vote of all the councilmen elected declaring it necessary to change said grade.” (Our emphasis.)
G. S. 1949, 12-633, provides:
“When such resolution is passed declaring it necessary to change any grade, the mayor, by and with the consent of the council, shall appoint three disinterested appraisers to assess the damages caused to the property owners by such change of grade; they shall assess the damage done to each lot or piece of land damaged by such change of grade. When said appraisers have so Ascertained the total damages caused by such change of grade they shall report the total damages to the governing body, which amount shall be paid out of the general fund.”
G. S. 1949, 12-634, relates to the procedure to be followed by the appraisers and also to that of the governing body upon the filing of the report, and provides for appeals from awards made.
Plaintiff contends that the acts and conduct on the part of the city over the years, as alleged in the petition, constituted the establishment of a street grade, thus entitling plaintiff to damages under the mentioned statutes, when, in 1955, defendant city, as alleged, changed such established grade.
Defendant city contends that its acts and conduct over the period of years, as alleged in the petition, did not have the effect of establishing a grade; that under the statute an abutting property owner is entitled to damages only where an established grade is changed, and therefore plaintiff is not entitled to recover.
In other words, the sole question presented is whether the allegations of plaintiff's petition relating to the alleged prior establishment of a grade on the street in question are sufficient to withstand the demurrer — that is, do those allegations of the various acts done, taken as true, make out a prima facie case to show that a grade had formerly been established?
Both parties cite three of our cases dealing with the general subject. They are Smith v. City of Courtland, 103 Kan. 142, 172 Pac. 1027; Decker v. City of Pleasanton, 117 Kan. 279, 231 Pac. 330, and Rinehart v. City of Concordia, 152 Kan. 473, 105 P. 2d 897.
In the Courtland case the city let a contract for curbing and guttering certain streets. An action was brought by several owners of abutting property seeking to enjoin the carrying out of the contract and the levying of an assessment to pay for the work. The principal objection made to the power of the city to make the improvements referred to by the means employed was that no ordinance had ever been passed “establishing” the grade of the streets affected, and it was contended a grade can be established only by ordinance. This court held that the statute providing that the grade of a street may be established by ordinance, and when so established shall not be changed without a three-fourth’s vote of the city council, does not prevent the establishment of a grade by any other method than the adoption of an ordinance — that is to say, a city, through its governing body, may, by its acts, “establish” a grade without the passage of an ordinance therefor, and that tire effect of the statute merely is to provide that a grade which is once established by ordinance shall be changed only by a three-fourth’s vote. In the course of the opinion it was said:
“An engineer employed by the city prepared the specifications on which the contract was let. He testified that he made a survey, and ran levels tire full distance covered by the improvements, taking into consideration the outlying portion of the town; the curb and gutter were to be built according to these levels — on the grade determined by them, as marked by grade stakes; and that he made or was to make a survey of the town sufficiently to see that it was the correct grade for the draining of any other portion of the town that might be later improved. We think that by entering into a contract (authorized by ordinance) for the making of the improvements in accordance with tírese specifications, and levying the assessments to pay therefor, the city authorities adopted the grade so indicated. The method pursued was very informal, but doubtless was sufficient to prevent the city from thereafter disputing the establishment of the grade.” (pp. 145, 146.)
In the Pleasanton case the city passed an ordinance which provided for the condemnation of certain sidewalks, curbs and gutters, and further provided for the construction of new sidewalks, curbs and gutters “according to the grade and plan of survey on file in the office of the city clerk.” Some years prior the city had constructed a “white way” along the street in question for which posts with a cement base two feet square were set fifty feet apart along the street. At the time the posts were set the city employed a civil engineer who made a survey of the street and prepared a plat and presumably had the bases of the “white way” posts on a grade, but the plat or other record of the survey was not filed with the city clerk, and no grade used by the engineer, if one was used, was made a matter of record. In the construction of the new sidewalks, curbs and gutters the tops of the bases of the “white way” posts were used as a grade for the top of the sidewalk.
In passing on the questions presented, this court, while recognizing the rule of the Courtland case to the effect that a grade may be established in a manner other than by the passage of an ordinance, held there was no showing that a grade had been established in any manner, and noted that it is important that when a grade is established something in the nature of a permanent record be made of it so that city officials and property owners may be able to know their rights relating thereto.
In the Concordia case the action was against the city for damages resulting from a change in the grade of a street. The pertinent portions of the petition are set out in the opinion and, briefly summarized, they alleged that for many years prior to 1939 the city had improved, repaired and worked on the street in question; that it had graded, erected, constructed, changed, repaired and cleaned out culverts on the street, and recently had placed crushed rock thereon.
The city appealed from an order overruling its demurrer to the petition, and the sole question presented was whether an “established” grade existed on the street in question prior to the change of grade made by the city in 1939.
It was held that the allegations of the petition merely established a case of use and maintenance of a street at its “natural” grade, and that the mere use and maintenance of a city street at its natural grade, without any effective municipal action recognizing or adopting such grade, is insufficient to constitute an “established” grade, and that the city’s demurrer to the petition should have been sustained.
The Courtland case, therefore, is authority for the proposition that a city, through its governing body, may, by its acts, “establish” a grade without the passage of an ordinance.
In the Pleasanton case there simply was no showing that a grade had been established in any manner.
The Concordia case is authority for the proposition that mere use and maintenance of a city street at its “natural” grade, without any effective municipal action recognizing or adopting such grade, is insufficient to constitute an “established” grade, and that mere change of a “natural” grade does not render the municipality liable in damages.
And so, applying the rules to the case before us — tire matter simply amounts to this:
If the acts of defendant city over the years did not, in fact, “establish” a grade in the street abutting plaintiff’s property, or if they amounted to no more than mere use and maintenance of the street at its “natural” grade, the change in 1955 did not subject the city to liability in damages, and the demurrer to the petition was properly sustained.
On the other hand, if the acts of defendant city over the years did, in fact, “establish” a grade in the street in question, and if, in fact, it was changed in 1955, plaintiff would be entitled to damages under the statute, and the demurrer should have been overruled.
Concededly, the question is a close one and the correct answer is not free from doubt, but we are of the opinion the demurrer should have been overruled. Plaintiff alleges many acts by the city over a period of years. They have been set out and will not be repeated. Whether plaintiff will be able to prove them is of course another thing, and, if proved, whether they show that a grade had, in fact, previously been “established,” we think are questions properly to be determined by the trial court after hearing the evidence. All contentions by the city in support of the ruling below have been noted and given careful consideration. Nevertheless, we are of the opinion the demurrer was improperly sustained.
The judgment of the trial court is therefore reversed.
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The opinion of the court was delivered by
Fatzer, J.:
The Kansas Turnpike Authority, hereafter referred to as the Authority, instituted eminent domain proceedings under G. S. 1949, Ch. 26, Art. 1 (amended by Laws 1953, Ch. 200, § 1; G. S. 1955 Supp. 26-102), as authorized by G. S. 1955 Supp. 68-2006 and 68-413, by filing its petition in the district court in case No. 12,924 to have certain lands condemned for turnpike purposes.
James H. Collingwood, the appellee, hereafter referred to as the landowner, was the owner of a 157.50-acre farm subject to an oral farm lease to J. E. Collingwood, hereafter referred to as the tenant, from which the Authority sought to appropriate 11.75 acres from four separate tracts.
On August 2, 1955, appraisers appointed by the district court, gave notice to the landowner and to the tenant, and on August 18, 1955, made an appraisement of 11.75 acres taken in condemnation.
On September 14, 1955, the landowner and the tenant filed separate notices of appeal to the district court from the award of the appraisers. Three days later the Authority likewise perfected its appeal to the district court.
On February 13, 1956, the district court assigned for trial the landowner’s appeal. On the following day, the Authority filed a motion in which it alleged that neither its appeal nor that of the tenant had been assigned for trial; that its appeal involved the same question and issue raised in the appeal of the landowner and of the tenant; that the three appeals were not separable from each other and that no other person had appealed from the assessment of damages concerning the tracts of land involved. The prayer was for an order assigning the Authority’s appeal for trial in its entirety as a single action to determine the sufficiency of the appraisers’ award, including the issue raised by the landowner and the tenant in their separate appeals.
On February 17, 1955, the district court entered an order, “that the motion of Kansas Turnpike Authority to consolidate the appeals herein be and the same hereby is overruled.” (Emphasis supplied.) Thereafter, the appeal was tried by a jury with the landowner as plaintiff and the Authority as defendant. No other party appeared or participated in the trial. However, during the trial the tenant testified he had farmed the land since 1947 pursuant to an oral lease with no specific date as to its termination; that he was to plant the land to wheat in the fall of 1955, harvest the crop and deliver the landowner his share, but, he did not plant wheat or any other crop that fall; that he sublet that part of the land east of the turnpike but did not sublet or farm that portion west of the turnpike because he had no access to it; and, that the land had a higher market value as a result of the farm lease. A verdict was rendered in favor of the landowner for $4,002.50. In answer to special questions the jury fixed the fair and reasonable market value of the 11.75 acres taken at $587.50, and damages for the difference in value of the land remaining immediately before and immediately after the taking at $3,415. The jury made no finding that the farm lease enhanced the value of the land.
The Authority filed its motion for a new trial on all the statutory grounds and particularly assigned as error the district court’s order overruling its motion to assign for trial its appeal in its entirety as a single action, which was overruled. Thereafter, and within the time provided, the Authority perfected its appeal to this court.
The sole question here presented is whether an appeal to the district court from an appraisement in an eminent domain proceeding brought to that court in its entirety the question of the sufficiency of the award of the value of the land taken, plus the difference in value of the land remaining immediately before and immediately after the condemnation, to be tried in a single action with respect to all parties claiming or having an interest in the land appropriated.
It would serve little purpose to make extensive comment concerning the Authority’s contention since the precise question here presented was considered by this court in Moore v. Kansas Turnpike Authority, No. 40,335, this day decided, where it was held:
“In this jurisdiction the rule followed in the consolidation of eminent domain cases for trial is not one of substance but one of procedure (G. S. 1949, 60-765 and G. S. 1949, 60-601). Under this rule the court is not obliged as a matter of substantive law to consolidate appeals brought under the provisions of the eminent domain statute (G. S. 1949, 26-102, et seq., as amended by G. S. 1955 Supp. 26-102), of all parties interested in a particular tract of land. The appeals of different parties interested in the same tract of land do not bring to the district court as a matter of substantive law a single action to be tried as such.” (Syl. 2.)
It follows that the district court did not err in refusing to consolidate the appeals of the tenant and the Authority for trial with the appeal of the landowner.
We now turn to the landowners cross-appeal. It is contended that the district court erred in refusing (1) to permit the landowner to cross-examine Ottley Mings, one of the appraisers and a witness for the Authority, as to whether he placed a different value on a part of the land condemned when he filed his appraisement report on August 18,1955, than when he testified on direct examination; (2) to instruct the jury as requested by the landowner, and (3) to sustain the landowner’s objection to instruction No. 9.
1. Ottley Mings testified on direct examination that on August 18, 1955, the fair and reasonable market value of the 11.75 acres of land condemned was $587.50; that the difference in value of the land remaining before and after the taking was $2,250.50, and, when added to the value of the land taken, was $2,818. The report of the appraisers filed August 18, 1955, fixed the value of the land taken at $1,175, and damages to the land remaining at $1,643, making a total sum allowed the landowner of $2,818. Thus, the total sum awarded the landowner by the appraisers was exactly the same amount as testified to by Mings. On cross-examination Mings was asked, “And in that report you gave a different value on the 11.75 acres than you have given today, didn’t you?” Objection was made to that question, and the district court stated:
“I think the Court has some discretion as to the extent of .the cross examination for the purpose of impeachment, and personally I don’t think it is wise to get the subject of this report into this court at all; that is, as to the fact of its contents, and the fact there was such á report, is in evidence, and anyone with any familiarity or experience with matters of that kind can tell from the drift of the examination that there had been such an appraisement and report.
“It is the contents I feel should be excluded. I’ll sustain the objection.”
The landowner then offered in evidence the appraisers’ report to impeach the testimony of Mings. An objection to that offer was likewise sustained by the district court.
The record clearly shows that Mings was examined on other phases of the valuation, and, except for values fixed in the appraisers’ report, the district court did permit the landowner to cross-examine Mings to test his credibility. The landowner cites Searcy v. State Highway Comm. 145 Kan. 709, 67 P. 2d 534; Case v. State Highway Comm., 156 Kan. 163, 131 P. 2d 696, and decisions from foreign jurisdictions. We need not review those authorities and further extend this opinion since the precise point presented was considered and decided by this court in Moore v. Kansas Turnpike Authority, supra. It was there held:
“Following Searcy v. State Highway Comm., 145 Kan. 709, 67 P. 2d 534, tifie question of the extent to which cross-examination of a witness to impeach his credibility will be allowed is one of discretion of the trial court. In an action such as described in paragraph 1 of this syllabus the trial court did not abuse its discretion in refusing cross-examination of an appraiser witness with respect to the reasonable market value of the land taken plus the difference in value of the remaining land immediately before and immediately after the taking where his testimony as to such total value was the same as the total of such value on the appraisement report.” (Syl. 4.)
Since Mings’ testimony did not differ in total amount from the total amount fixed in the appraisérs’ report with respect to the value of the land taken plus the difference in the value of the land remaining before and after the condemnation proceedings, no prejudicial error was committed, and the district court did not abuse its discretion in refusing to permit the landowner to cross-examine Mings concerning values fixed in that report.
2. In considering the landowner’s second and third contentions, further reference to the record is helpful. The turnpike right of way diagonally crossed the landowner’s farm in a southwesterly direction so that approximately 100 acres were on the east side of the right of way and 45 acres were on the west side. In the same proceeding in which the Authority acquired the landowner’s land, it also acquired a strip of land immediately north of his farm, and, except where such strip of land joined with an overpass of a township road over the right of way of the turnpike where it was wider, it was approximately 30 feet wide, 815 feet long, and paralleled the westerly side of the turnpike from a point near the overpass to a point on the north line of the landowner’s farm. This strip of land was acquired August 18, 1955, for the benefit of the landowner to provide a means of access by which he could reach the west 45 acres of his farm. However, before the trial commenced February 27, 1956, the Authority tendered to the landowner, and he accepted, an easement to this strip of land for the purpose of ingress and egress to the west portion of his farm. The authority agreed to construct an unsurfaced roadway 20 feet wide from a point near the overpass to the landowner’s north line and to fence such property but the duty to maintain and repair the road and fence was placed upon the landowner. Although the Authority conceded at the trial the access road had not been used or extensively improved prior to the trial, considerable evidence was introduced as to whether the landowner had suitable access to his west 45 acres, and practically every witness was interrogated by both the landowner and the Authority concerning it and its effect on the landowner’s damage, to the remaining land. The landowner testified he had no access and here contends that title to the access road vested in the Authority on August 18, 1955, and since an easement for its use was not tendered until February 27, 1956, it would have been trespass to use it, therefore, he had no access or use of the road acquired. He requested the district court to instruct the jury the undisputed evidence showed on August 18, 1955, that the landowner had no access to the west portion of his farm; that he was. entitled to be compensated in money for the damage inflicted by the conditions as they existed on that date; and, that the jury disregard all evidence pertaining to the access road, the easement granted February 27, 1956, and, with respect to his land remaining, assess damages as though the easement had not been made. That request was denied by the district court.
The landowner contends the proper measure of damages should be based upon the conditions as they existed at the time his land was appropriated, and cites C. B. U. P. Rld. Co. v. Andrews, 26 Kan. 702; Wier v. St. L., Ft. S. & W. Rld. Co., 40 Kan. 130, 19 Pac. 316, and numerous other authorities. We have no quarrel with these authorities nor with the landowner’s contention as being a correct statement of law. However, the requested instructions, if given, would have undoubtedly singled out a particular claim or item of damage to the landowner and give it an undue significance (Smart v. Railway Co., 80 Kan. 438, 102 Pac. 253; Hill v. Railroad Co., 113 Kan. 489, 215 Pac. 310; 5 Hatchers Kansas Digest [Rev. ed.], Trial, § 213, p. 342). That instruction would have required the district court to instruct the jury to disregard all evidence relating to the access road. Manifestly, that would have been error. The sole purpose of acquiring the access road was to benefit the landowner and provide access to his west 45 acres — that it didn’t benefit the turnpike is clear. Furthermore, his right of access did not spring from the formal transfer on February 27, 1956 — it accrued on August 18, 1955, consequently, he had a right to use the access road without being a trespasser (52 Am. Jur. Trespass, §§ 39, 40, pp. 866, 867; 87 C. J. S. Trespass, § 49, p. 1003). While the right of access may have been so inadequate and unsuitable as to factually amount to no access at all, his lack of ability to use the access road due to topographical or other conditions of the area was a subject of evidence to be considered by the jury, and was not a question of law to be determined by the district court. Obviously, it would have been improper to instruct the jury as a matter of law that the landowner had no access to his west 45 acres. Moreover, that portion of the requested instruction relating to the landowner’s compensation in money for the damages inflicted by the conditions as they existed on August 18, 1955, was fully covered by other instructions of the district court. The refusal to give an instruction or a portion of an instruction in the specific manner requested is not error when the same is substantially covered by other instructions of the district court. The refusal to give an instruction or a portion of an instruction in the specific manner requested is not error when the same is substantially covered by other instructions (Chapman v. Bergholt, 149 Kan. 172, 86 P. 2d 513; Boeck v. Katz Drug Co., 155 Kan. 656, 127 P. 2d 506; 5 Hatcher’s Kansas Digest [Rev. ed], Trial, § 201, p. 337). The district court did not err in refusing to give the landowner’s requested instruction.
3. The landowner’s third contention is in reality a continuation of his previous argument, the effect of which was the district court did not properly instruct tire jury in instruction No. 9 that damages to the land remaining were to be considered as of the time of the appropriation. The instruction reads:
“Evidence lias been introduced in this case tending to show that at the same time the land in question was appropriated, defendant also condemned a strip of land on the tract immediately north of plaintiff’s land, which strip extended from a point near the overpass of the township road over said turnpike to a point on the north line of plaintiff’s land. If you find that the purpose in condemning said strip was to provide plaintiff with a means of access by which he could reach his land west of the turnpike, then said strip is a matter which affected the condition of plaintiff’s remaining land as it was immediately after the taking and you may consider the same for that purpose.
“It is not important that the defendant did not execute any written grant to plaintiff of the right to use said access road until the commencement of this trial. By accepting this grant, however, the plaintiff did not waive any question as to any hazard or inconvenience in connection with the the use of said access road or its sufficiency, or the cost of maintaining such access road or necessary improvements thereto, and you should consider what may be shown by the evidence in regard to such matters in determining the value of plaintiff’s remaining land as it was immediately after the taking.”
We do not believe instruction No. 9 was susceptible to the landowner’s objection. In Casner v. Common School District No. 7, 175 Kan. 551, 265 P. 2d 1027, it was said:
“. . . It is a cardinal rule in this state that instructions to the jury must be considered as a whole, and all must be considered to determine whether the theory and contentions of each party are presented, and an erroneous instruction does not of itself require reversal if all the instructions considered together - substantially state the law of the case. (Wing v. Mid-Continent Seeds, 170 Kan. 242, 246, 225 P. 2d 78; 5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 186; 9 West’s Kansas Digest, Trial, § 295 [1].)” (l. c. 556.)
When all of the instructions are considered together we think the theory and contentions of the landowner, as well as the Authority, were fairly presented to the jury. Instruction No. 6 informed the jury the date of the taking was August 18, 1955; Nos. 7 and 8 clearly stated that damages to the land remaining was the difference in value immediately before and immediately after the taking; and No. 9 left to it the weight and credence to be given to evidence introduced as to whether the Authority condemned such strip of land to provide a means of access by which the landowner could reach his west 45 acres, and that if it did so find, then that fact was a matter which affected the condition of the land remaining and was to be considered in determining the landowner’s damages. In addition, the instruction emphasized that the time of computing the damage was “as it was immediately after the taking and you may consider the same for that purpose.” Moreover, it is particularly significant that this instruction clearly informed the jury that by accepting the easement, the landowner did not waive any question as to any hazard, or inconvenience in connection with the use of the access road, or its sufficiency, or the cost of maintaining such road, or necessary improvements thereto, and directed the jury that it should consider from the evidence such matters in determining the value of the land remaining.
After carefully reading all of the instructions given by the district court we are convinced that they fairly presented to the jury the landowner’s theory and contentions, and did for him what he claims they did not do. We have no hesistancy in concluding the district court did not err in any of its instructions to the jury, and particularly instruction No. 9.
The landowner lastly contends the district court erred in overruling his motion for a new trial. In view of the conclusions heretofore set forth in this opinion, suffice it to say we think the district court did not err in overruling that motion.
We have carefully reviewed the record and find no error. The judgment is affirmed.
Wertz, J., dissents.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to cancel and rescind a written lease on the grounds of misrepresentation and fraud, and for restitution of rent. Trial was had by the court, which rendered judgment for the plaintiff. The defendant has áppealed.
We shall briefly summarize the evidence before the trial court, as follows: The plaintiff, James Dryden, in answer to a classified advertisement in a Wichita newspaper listing for lease a Zesto soft ice cream stand, telephoned the owner, O. H.. Rogers, the defendant, and Dryden and his wife met Rogers at the stand where they spent an hour discussing the stand, which Rogers said was available at a monthly rent of either $250, or $180 plus a percentage of the profits. During the conversation Rogers made various statements to the Drydens to induce them to lease the stand, and explained why it was vacant. These statements as testified to by the Drydens, concerned the profits of prior tenants, and Rogers said, “The fellow that was in here last year, he had it on a percentage basis and in the month of June, of the year before, the $180 plus percentage brought me $500 for the month’s rent.” Rogers further stated this tenant had worked at Steffens but had leased the stand for his two sons who did not pay any attention to business and that he gave the stand up in June, having made $7,000 during the three month’s operations. Rogers also said, “Another fellow that was in here bought a new home and a car with the profit he made off of this place.” Rogers further stated to the Drydens that the stand had a good trade in sandwiches and coffee during the winter months; that the rent he was asking was the cheapest in Wichita, and that it was customary for a tenant to pay in advance the rent for the three final months of the lease term.
The following day the Drydens secured a loan from their banker sufficient to enter into the lease with Rogers. The next day Dryden saw Rogers and agreed to take the stand, and a written lease was entered into on March 1, 1955, calling for annual rental of $3,000, payable at the rate of $250 per month.. On that date, Dryden paid Rogers $1506.80: $1,000 advance rental for the first month and the last three months of the lease term, $200 security deposit, and $306.80 for the inventory of supplies.
The Drydens operated the stand daily from March 3, 1955, through June, 1955, but had to borrow money each month to make the rent payment. Unable to pay the July, 1955, rental, the Drydens did not open the stand for business on July 4, 1955. On July 11, 1955, Rogers told Dryden to pay the July rent in weekly installments. On that date the stand was reopened upon payment by Dryden to Rogers of $100 in cash, and Rogers left Wichita for his summer cottage in Arkansas. On July 18, 1955, a weekly payment of $50 was made to Rogers’ daughter Geraldine, and when the July 25, 1955, rental payment was not made, Rogers, through his daughter, served notice upon the Drydens to vacate, and on July 29, they cleaned up the equipment and vacated the Zesto stand.
While operating the stand and after June, 1955, Dryden ascertained the names of the prior tenants. After the Zesto stand failed to malee a profit during the summer months, Dryden sought out the prior tenants only to learn that Max Jester, the tenant who had the stand during the spring of 1954 and who had worked at Steffens, had lost about $1200 on the stand, and that Harold Ahlf, the tenant who had the stand during 1953, had also lost a great deal of money; that neither of those tenants had purchased a new house or car and that neither of them had paid Rogers $500 rent during any one month. Dryden also learned that other statements made by the defendant were false and untrue.
After hearing the evidence and arguments of counsel the trial court found generally for the plaintiff and by reason of defendant’s fraud, the lease between plaintiff and defendant was ordered canceled and plaintiff was granted judgment of $2100 for the rent previously paid to Rogers.
The action was tiled by the trial court without a jury. Neither party requested special findings, hence the judgment of the trial court was a general finding in favor of the plaintiff and granted him the relief sought.
We first consider defendant’s first and third specifications of error. The first is that the trial court erred in overruling his demurrer to plaintiff’s evidence, and the third is that it erred in overruling his motion for a new trial. The defendant did not appeal from either of those orders, consequently, they are not before this court for appellate review (Baker v. Maguire’s, Inc., 176 Kan. 579, 272 P. 2d 739; Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631). His appeal is only from the order of the trial court of May 8, 1956, rendering judgment that the lease between the parties be canceled and that plaintiff recover $2100, with interest, and costs of the action. No effort was made by defendant to amend his notice of appeal, as authorized by G. S. 1949, 60-3310, and thus broaden its scope to include the contention made here.
We next refer to defendant’s second and fourth specifications of error. The second is that the decision of the trial court is contrary to the evidence, and the fourth is that there is insufficient evidence that plaintiff relied upon the alleged fraudulent statements. These specifications of error will be considered together since to answer the second is to answer the fourth, and it is sufficient to say that defendant’s appeal presents but the single question of whether there is substantial competent evidence to support the trial court’s finding and judgment in favor of plaintiff.
The long-established rule of this jurisdiction is that “a general finding made by a trial court determines every controverted question of fact in support of which evidence has been introduced,” (Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567) and that a general finding by the trial court raises a presumption that it found all facts necessary to sustain and support the judgment (Kennedy v. Spalding, 143 Kan. 76, 53 P. 2d 804; Stromquist v. Nelson, 159 Kan. 716, 158 P. 2d 458; Briscoe v. Reschke, 170 Kan. 367, 226 P. 2d 255; Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049).
In considering the evidence on appellate review, we note the repeated holdings of this court, that a verdict, or finding of fact made by the trier of the facts and supported by the evidence will not be disturbed on appeal (2 West’s Kansas Digest, Appeal & Error, §§ 1001-1013; 1 Hatcher’s Kansas Digest, Appeal & Error, §§ 495-508), and that a finding of fact necessarily embraced in the general judgment rendered by the trial court, will not be disturbed if there is some though controverted evidence to sustain it (Stratton v. Hawks, 43 Kan. 538, 23 Pac. 591; Hoff v. Hoff, 106 Kan. 542, 189 Pac. 613; Hale v. Ziegler, 180 Kan. 249, 303 P. 2d 190).
At the trial considerable evidence was introduced by the plaintiff and’ defendant but no useful purpose would be served in detailing or making further summary of it. It is sufficient to say that the evidence was conflicting and the trial court’s judgment had implicit in it a finding that, by reason of defendant’s fraud, the lease between the plaintiff and defendant should be canceled and that plaintiff should have restitution of $2100 rent paid to defendant thereunder. A careful and extended review of the record has been made and we conclude there was substantial competent evidence to support the trial court’s judgment. The judgment is affirmed.
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from an order of the district court changing the care, custody and control of minor children.
Leon Jackson, appellee herein and as plaintiff, filed an action for divorce against Vena Irene Jackson (now French), defendant and appellant herein. On defendants cross petition Vena Irene Jackson was awarded a divorce from plaintiff, a division of the property and the care, custody and control of the three minor children; Stephen age 7, James age 5, and Dianne age 3.
The court gave the plaintiff the right of visitation at reasonable times, the further right to have custody for a period of 60 days during June and July of each year subject to the right of visitation by defendant during that period. The court further ordered the plaintiff to pay $50.00 a month for the support of each child until the child should become of legal age and retained jurisdiction for any further orders.
The plaintiff previously appealed to this court from that portion of the judgment awarding custody of the children to the defendant (Jackson v. Jackson, 175 Kan. 418, 264 P. 2d 1087).
In that case, plaintiff specified as error the district court’s order awarding the custody of the minor children to the defendant and the overruling of his motion for a new trial. This court affirmed the judgment of the trial court.
On July 28, 1955, the plaintiff filed a motion for a change in the order of the custody of said minor children.
On August 9, 1955, defendant filed a motion for allowance of attorney fees and August 29, 1955, defendant filed her answer to plaintiff’s motion to change custody of minor children and requested the court to make findings of fact and conclusions of law.
On September 5, 1955, the time set for hearing, defendant filed a motion for continuance of the matter which was overruled by the court. Defendant moved the court in accordance with G. S. 1949, 60-2934, that upon concluding the evidence of the witnesses present in court that the court continue the matter until she could procure the evidence of two of her chief witnesses and that 15 days would be adequate. The court denied the continuance but ordered the affidavits submitted in the motion to be admitted as the testimony of the missing witnesses, Dr. LeNeve and Mrs. Helen Johns. Plaintiff admitted the contents of said affidavits as to what the witnesses would testify but denied its truth, materiality, relevancy and competency.
On or before December 24,1955, the court gave tentative findings of fact and conclusions of law with notice that judgment accordingly would be entered at the regular January motion day in Richfield on January 3, 1956.
On December 24, 1955, defendant filed a motion for additional findings of fact. A motion was also filed to strike portions of the court’s proposed findings of fact and conclusions of law.
The final findings of fact and conclusions of law of the court were filed on January 16, 1956. Judgment was presumably entered by the court on January 6, 1956.
On January 5th, defendant again filed motions directed against the court’s findings and conclusions and on January 6th filed a motion for new trial and for stay of execution during appeal to the Supreme Court.
The Journal Entry of judgment filed January 16, 1956, changed the care, custody and control of said minor children from the defendant to the plaintiff subject to the reasonable rights of visitation in favor of defendant. The court also awarded judgment against the plaintiff and for the defendant in the amount of $300 for attorney fees and expenses of her attorneys.
The court further heard the motions of defendant for additional findings of fact, to strike certain portions of the amended findings of fact and conclusions of law, the motion for stay of execution and the motion for a new trial.
The court sustained two portions of defendant’s motion for additional findings of fact and overruled the balance of said motions. The motion for stay of execution and for new trial were overruled.
The court retained jurisdiction over the subject matter of the custody of the children as to modifications and changes of orders as may in time prove necessary.
Defendant makes five specifications of error.
It is only necessary to consider the first specification. As appellant aptly states in his brief:
“This assignment of error is the ‘meat’ of the lawsuit. Appellant contends that the real, underlying reason for depriving her of custody was her membership in Jehovah’s Witnesses and training the children in that faith. The entire ‘emotional instability’ argument against her, as previously shown, was a mere subterfuge to cover up infringement upon Appellant’s religious freedom. A critical reading of the record bears this out.”
This specification of error is as follows:
“(A): The Trial Court committed a substantial abuse of its judicial discretion in making these orders, as the record overwhelmingly showed fitness of the Appellant, mother of said children, to remain their custodian, and there was no evidentiary basis for the following findings of the Court upon which its decision and judgment was predicated, namely:
“1. That Appellant suffered from nervous instability, emotional abnormality and psychopathic tendencies, which were being communicated to the three children.
“2. That the ‘environment’ of the children under custody of Appellant (i. e., being raised in the faith of Jehovah’s Witnesses and associating to a considerable extent with Jehovah’s Witnesses) was improper and not so stable and normal a home life as the children could have in the custody of Appellee and the stepmother, both of whom are not Jehovah’s Witnesses.
“That in this latter finding above the Court violated the tenets and precepts of the First and Fourteenth Amendments of the Federal Constitution and Section 7 of the Kansas Bill of Rights, guaranteeing religious freedom and cases interpretive thereof that no religion should be preferred above another, providing there was nothing subversive to the United States of America or the principles of common decency in the teachings thereof. While the Trial Court paid lip service in its Findings and Conclusions to the above Constitutional Law principles, it went absolutely contrary to them in its determinations of this case. . . .”
While a reading of the entire record of the case may not prove the element of subterfuge, the whole question of religion so permeates the record that this court believes defendant’s specification of error is well taken.
Religion was inherently in the case from its very inception. While plaintiff’s motion for change of custody did not specify grounds, it was alleged in defendant’s answer that plaintiff’s counsel stated the allegations of plaintiff’s motion were based upon the following facts:
“(A): That Defendant allegedly is a person of emotional instability and psychopathic tendencies to the extent such alleged condition renders her an unfit custodian of said children.
“(B): That Defendant is allegedly a poor housekeeper, cook and caretaker of tlie children, nags at said children, and keeps them both emotionally upset and in a manner that is not conducive to their physical well being.
“(C): That by virtue of the fact Defendant is an admitted member of Jehovah’s Witnesses, by subjecting the children to such teachings, they will tend to become overtired and emotionally upset, and compelled to give attention to religious instruction, within the precepts of said Jehovah’s Witness organization, to the end that their physical well being will be adversely affected.
“(D): That by virtue of Defendant’s admitted Jehovah Witness membership, said children will be brought up in a manner that will tend to mhke them unpatriotic citizens of the United States, and that for said reasons, the two male children of the parties will in all probability refuse to accept military service in the armed forces of the United States and become of necessity conscientious objectors.”
In its tentative findings of fact the court also found the plaintiff was basing his motion on the above four grounds.
The evidence in the trial was replete with testimony and exhibits as to the tenets of Jehovah’s Witnesses and the possible effect of such beliefs upon the children. Plaintiff’s first witness identified and the court admitted the following books as plaintiff’s Exhibit “1”:
“That they (the children) brought a bunch of books which their mother told them they were to read during the summer.
“Plaintiff’s counsel produces the books as Plaintiff’s Exhibit T’ consisting of eight books. (. . .: one was King James Version of the Bible, one was a brown-covered study book of Jehovah’s Witnesses, entitled: ‘Let God Be True,’ the third was a blue-covered study book of Jehovah’s Witnesses for children’s instruction, the fourth was a green-covered 1953 Yearbook of Jehovah’s Witnesses with front thirty pages approximately describing tenets of faith.)”
The court made twenty final findings of fact.
In findings two and three, the court found:
“2. The physical treatment of the children by the mother, and by the father and stepmother, is good and all that could be reasonably desired.
“3. Both the Plaintiff and the Defendant have adequate homes, close to adequate schools, for the proper educational and physical welfare of the children.”
The court also found:
“6. Between the time of the trial in February 1953 and the time the decision on the'appeal was entered by the Supreme Court on December 12, 1953, the emotional and nervous disturbance of the Defendant, Vena Irene Jackson, increased to the point that the Defendant had a nervous breakdown which resulted in hospitalization. Although the Defendant has apparently recovered physically from the nervous breakdown which resulted in hospitalization, she has not recovered from her nervous and emotional disturbances which are greatly accentuated by problems different from those to which she is accustomed.
“15. The emotional and nervous instability and abnormalities of the Defendant Vena Irene Jackson are being and have been transmitted to the three children, and the same has had adverse effect upon the emotional development of the children and should not be continued.
“16. Plaintiff’s home, as now constituted, is the best place for the children. Plaintiff’s wife, by reason of training and experience, is especially fitted to aid in overcoming the emotional disturbances of the children, and a transfer of the children to the Plaintiff’s home is necessary for their future welfare.
“18. Defendant, by reason of her nervous and emotional instability, cannot provide the children with as good home environment as the Plaintiff can at this time.”
These findings alone might have supported the court’s judgment but the court also made these additional findings all of which pertain to religion.
“9. In each interview the Court mentioned the question of military service. The older boy, Stephen, of the age of 9 years, used the answers of the other witnesses testifying as to the beliefs of the Jehovah’s Witnesses, to the effect that the choice of military service was left up to the individual and he would make up his mind when he was eighteen years old, and at the time he was required to register.
“10. The boy James, of the age of 7 years, when asked the same question, stated that he would be a conscientious objector and when asked what would happen in such instance answered that he would have to go to prison, but that he preferred going to prison to being in the army. When asked why he had such preference he stated that he knew what the army would be like, but he did not know what prison was like, and he wanted to see what prison was like, just like ‘Gene Harvey’ (a Jehovah Witness who served in the Federal Penitentiary for failure to register). He stated that Gene Harvey served a term in prison, and that he wanted to be like Gene Harvey.”
The Journal Entry amended paragraph 10 as follows:
“Paragraph 10 of the Court’s Amended Findings of Fact next to last sentence was amended by interlineation to read: “When asked why he had such preference he stated that he knew what the army was like, but he did not know what prison was like, and he wanted to see what prison was like, just like ‘Gene Harvey’ (a Jehovah Witness who served a term in the federal penitentiary for refusal to accept noncombatant labor service in lieu of induction).’ ”
“11. The five-year-old girl, when military service was mentioned, asked the Court if it was not wrong to kill, with which the Court agreed, and she then volunteered the statement that in the war men cut off women’s breasts and carried them around in their pockets. When asked who told her that, she stated that it was Mrs. Planque. Mrs. Planque was a witness in the case on behalf of the defendant. She and her husband are Jehovah’s Witnesses, and her husband, who also testified, was what they call a ‘servant.’
“12. The evidence disclosed that the' defendant, during the two days hearing on this motion, stayed with the Planques.
“13. The defendant joined the Jehovah’s Witnesses approximately 18 months ago, and since the original divorce hearing in February of 1953. She stated that she and the children had studied with the Planques and other Jehovah’s Witnesses many times, and on an average of about two times a week.
“14. Pursuant to her faith as a Jehovah’s Witness, Defendant does not teach the children to salute the flag. She will not teach them to accept military service when the two boys become of age when they are subject to Selective Service laws. The defendant, however, testifies she respects the flag, will stand at attention when the flag passes, but will not raise one hand in salute, or place her hand over her breast. The children will not have pressure placed upon them as to what their own decision will be when they become subject to military service. The Jehovah’s Witnesses do not make gift exchanges at Christmas, under the belief that Christmas is a religious occasion not to be commercialized. Neither do they participate in Easter Egg hunts and similar modern day observances, on the ground that such observances are pagan in character. The children are taught these beliefs, but are permitted to make their own decisions as to whether they will participate in such celebrations. The family has gift exchanges on other dates not religious in character.”
Upon all these findings the court made the following conclusions of law.
“1. Religious freedom, as guaranteed by our Constitutions, should be faithfully upheld, and religious teachings to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not and must not be considered as basis of making child custody orders.
“2. The Court does not believe that affiliation with the Jehovah’s Witness organization, of itself, disqualifies a person from having custody of children. Neither does the Court feel that such affiliation is a necessary qualification for such custody to the effect that other elements should be eliminated from consideration.
“3. It is the order of the Court that the Plaintiff should have the care, custody and control of the minor .children, effective at the end of the school semester in January 1956.
. . Since this motion was instituted by the Plaintiff and the Defendant was obligated to defend, the Court renders judgment against the Plaintiff and in favor of the Defendant for the sum of $300.00 as attorney fees and expenses.”
It is well recognized in this state that the jurisdiction of the district court over minor children is a continuing jurisdiction and its orders concerning the custody, control or support of the children may be changed from time to time as conditions require. (Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127; and Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695.)
Likewise, it is the law of this jurisdiction that the paramount consideration of the court is the welfare and best interest of the child. (Westhafer v. Westhafer, 125 Kan. 43, 262 Pac. 555; Janney v. Janney, 159 Kan. 230, 154 P.2d 131; Lamberson v. Lamberson, 164 Kan. 38, 187 P.2d 366; Decker v. Decker, 171 Kan. 380, 233 P.2d 527; Hedding v. Inman, 172 Kan. 567, 241 P.2d 479; and Jackson v. Jackson, 175 Kan. 418, 264 P.2d 1087.)
This court has repeatedly taken the position that the trial court is the best judge of the best interests of the child and for this reason in the absence of abuse of sound judicial discretion in awarding the custody and control of minor children, the judgment of the district court will not be disturbed on appeal. (Goetz v. Goetz, supra; and Travis v. Travis, 163 Kan. 54, 180 P. 2d 310.)
However, where an abuse of sound judicial discretion is affirmatively shown in the record, this court has not hesitated to reverse, modify or otherwise change the order of the district court. See Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946; Lindbloom v. Lindbloom, 177 Kan. 286,279 P. 2d 243.
The only question upon this appeal is whether or not the court abused its discretion by allowing the matter of religion to become un integral part of its determination of this custody matter.
The problem of religion in custody matters has previously been before this court.
Justice Burch wrote in Denton v. James, 107 Kan. 729, Syl. 5 and 6, 193 Pac. 307, where the court said:
“Aside from teachings subversive of morality and decency, and some others squally obnoxious, the courts have no authority over that part of a child’s train ing which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.
“In this instance the child’s mother was a Roman Catholic, and the father agreed the child should be reared in its mother’s religious faith. The maternal grandmother is a Roman Catholic, and the mother by adoption is not. Held, the facts stated afford no ground for depriving the mother by adoption of custody of the child during the school year.”
The court further said on pages 736 and 737:
“Having all the rights of a natural parent, Sallie Denton has the right to control the education of the child, and the finding of the district court that it was the best interest of the child Isabelle James should have custody during the school period of each year, was contrary to law. Section 7 of the bill of rights of this state reads as follows:
‘The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of workship. . . .’ (Gen. Stat. 1915, § 111.)
“In the case of Watson v. Jones, 80 U. S. 679, the supreme court of the United States enunciated a principle which is as applicable here as it was in the controversy under decision:
‘In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma.’ (p. 728.)
“Aside from limitations of the general character indicated the courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody religious views afford no ground for depriving a parent of custody who is otherwise qualified. The agreement of the child’s father and mother that the child should be reared in the Catholic faith was a commendable compromise between two natural guardians who, under the statute of this state, had equal authority. On the death of the mother, the father’s right to educate his child became paramount, and the agreement was merely persuasive upon him. That right is now vested in Sallie Denton. Authorities on the subject of parental right to control religious education of a child are collated in an article in 29 Harvard Law Review, at page 485 (March, 1916), Because of the settled views of this court concerning the nature of the parental relation, and the rights flowing therefrom, The question of religion cannot he regarded as entering into this case. It is conceivable that, on change in custody of a child of peculiar temperament, ill-considered proselyting might be so begun and carried on as to destroy completely the foundation of all faith, and lead to positive immorality. It will be time enough to deal with such a case when it arises.” (Emphasis ours.)
This rule is followed in many states. Similar decisions are Cory v. Cory, 70 Cal. A. 2d 563, 161 P. 2d 385; Stone v. Stone, 16 Wash. 2d 315, 133 P. 2d 526; Reynolds v. Rayborn, 116 S. W. 2d 836 (Tex. Civ. App. 1938); and Salvaggio v. Barnett, 248 S. W. 2d 244 (Tex. Civ. App. 1952), 344 U. S. 879, 97 L. ed. 681, 73 S. Ct. 176, 43 A. L. R. 2d 393.
The United States Supreme Court denied certiorari in the Salvaggio case. Because of its similarity to this case, the following is quoted from 43 A. L. R. 2d 393 regarding it.
“The original divorce decree awarded to the father, Lee Salvaggio, the exclusive custody of the infant daughter of the parties, Judy Suzzan, because of the mother’s inability at that time to provide for her support. Both parties subsequently remarried, the mother to a Mr. Barnett, and, having thereby acquired a comfortable home and the financial ability to care for the child, she sought, by the present proceeding, in which she was joined by her husband, to have the custody of the child transferred to her. The trial court found that the father and stepmother, as well as the mother and stepfather, were fit and proper persons to have the custody of the child, except that the father and stepmother, because of their belief that the Bible so requires, proposed to teach her that it is wrong to salute the American Flag, to celebrate and exchange gifts at Christmas, and to kill others even in the defense of the United States. Upon the foregoing facts and findings, the court made the following conclusion: ‘The change of condition affecting the welfare of such child include the change in the financial circumstances of Betty James Barnett and her ability to provide a suitable home for the child. However, in arriving at its conclusions, the Court is primarily influenced by the proposed teachings of Lee Salvaggio and his present wife with reference to saluting the flag, fighting in defense of the United States and celebration of Christmas. The Court judically knows that the overwhelming majority of other children in this state and in the community where Judy Suzzan Salvaggio will reside and go to school will be taught to salute the American Flag, to defend the country against enemies, and will exchange gifts and celebrate Christmas. The Court concludes that such fact would produce problems and conflicts adversely affecting the welfare of such child. Without in any way infringing upon the right of Lee Salvaggio and his present wife to interpret the Bible as they see fit, the Court is of the opinion that as between the natural parents of such child, the best interests of the child would be served by her being placed in the custody of the parents who will rear her in the normal atmosphere of an American home.’ The Court decreed, accordingly, that the custody should be transferred to the mother, and this action was affirmed, on appeal, as having ample legal support in so far as it was based on the ground that a mother’s care and attention for a young female child are for the child’s best interest. But with respect to the consideration of the religious beliefs and practices of the father and stepmother, the appellate court said: ‘Under the American principle of separation of Church and State, the secular power is so shackled and restrained by our fundamental law that it is beyond the power of a court, in awarding the custody of the child, to prefer, as tending to promote the interest of the child or surround it with a more normal atmosphere, the religious view or teachings of either parent . . . It is in no way contended that appellant’s religious teachings to his child would be immoral or illegal, but merely that they would be unpopular.’ ”
Appellee raises the point that appellant has waived her right to review by acquiescence in accepting the $300.00 attorney fees allowed her. Appellee makes reference to the well established rule to the effect that a litigant who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity, he will not be held to say that it’s invalid. He cannot on appeal contest its validity where he has accepted the benefits or a substantial part of the benefits of the challenged judgment (Ralston v. Ralston, 125 Kan. 619, 264 Pac. 146).
Appellee cites Ralston v. Ralston, supra; Fadely v. Fadely, 128 Kan. 287, 276 Pac. 826; Morton v. Morton, 149 Kan. 77, 86 P. 2d 486; and Elliott v. Elliott, 154 Kan. 145, 114 P. 2d 823.
The Elliott and Morton cases were divorce cases, but in each case the appellant had accepted a property settlement. Attorney fees were not involved. Attorney fees were involved in the Ralston and Fadely cases, but these cases involved partition actions and the attorney fees were included as benefits of the judgment.
Under the provisions of G. S. 1949, 60-1507 and the cases of this court, a wife is entitled to attorney fees for “the efficient preparation of her case” in divorce, alimony and custody actions. The acceptance of such attorney fees does not come within the rule of acquiescence in the benefits of a judgment.
In its conclusions of law, the district court apparently regarded the rule of religion in custody cases, but the findings of the court are so inconsistent with the rule that the record cannot be allowed to stand as it is. In this custody case, the record affirmatively shows religion was in it from beginning to end. The court may have had other good and sufficient reasons for changing custody, but they cannot be distinguished from those of religion. We must hold from the record that the court abused its discretion and that its order changing custody must be set aside.
For the reasons stated, the judgment of the court changing custody is set aside, and cause remanded for further proceedings in accordance with this opinion.
It is so ordered.
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The opinion of the court was delivered by
Price, J.;
This was an action for damages resulting from an automobile collision. The jury returned a general verdict in favor of plaintiff and answered special questions. Upon defendant’s motion one of the answers was set aside and judgment was entered for defendant and for costs, notwithstanding the general verdict. Plaintiff has appealed.
On the afternoon of October 29, 1954, plaintiff was hauling grain from a field located just south of U. S. Highway 50 and east of a county road intersecting with such highway. He was driving a 1953 Ford truck approximately sixteen feet in length and loaded with 150 to 200 bushels of maize. He drove out of the field about 200 feet south of the intersection in question and proceeded north on the county road, intending to turn west at the highway. He noticed some cars approaching from the west on the highway at high speed. He stopped his truck at a stop sign at the south edge of the highway and then proceeded into the intersection at a low speed. After pulling into the intersection plaintiff saw the car driven by defendant at approximately the same time the front bumper of his truck reached the center line of the highway. Ob serving defendant’s high-speed approach from the west, plaintiff attempted to drive on north through the intersection instead of turning. Defendant applied his brakes when about 300 feet west of the intersection. This resulted in the wheels of his car sliding for about 173 feet. Apparently defendant attempted to pass to the south, or behind plaintiff’s truck, but realizing that he could not do so veered to the north. The collision occurred in the north portion of the intersection.
Plaintiff’s petition, which sought recovery in the amount of $24,-647.45, charged that defendant was negligent in driving and operating his vehicle at an unreasonable and imprudent rate of speed; in failing to reduce the speed of his vehicle when in and approaching the intersection; in failing to keep a proper lookout for other users of the highway, and in failing to yield the right of way to plaintiff who was already entering the highway in a lawful manner.
In his answer defendant denied negligence on his part and alleged contributory negligence on plaintiff’s part in several particulars. By way of counter claim defendant sought to recover the sum of $3,648.50, and alleged that plaintiff was negligent in failing to stop his truck at the stop sign before entering the through highway; in failing to yield the right of way to defendant at a time when defendant’s car was approaching the intersection so closely as to constitute an immediate hazard; in failing to keep a proper and careful lookout for other users of the highway, and in failing to do anything to avoid the collision after entering the intersection when it was possible for plaintiff to continue driving his truck to the north so as to leave room for defendant to pass to the rear of the truck on the south half of the intersection.
Allegations of plaintiff’s reply need not be detailed.
The jury returned a general verdict in favor of plaintiff in the amount of $3,647.45, and answered special questions as follows:
“1. (a). Q. Was the defendant, Ernie S. Bennett, negligent in any particular charged in plaintiff’s petition?
“A. Yes.
“1. (b). Q. If you answer the foregoing question in the affirmative then state wherein said defendant was negligent.
“A. Excessive speed causing loss of control of car.
“1. (c). Q. If you find that Ernie S. Bennett was negligent, did such negligence proximately cause or contribute to the accident?
“A. Yes.
“2. (a). Q. Was the plaintiff, A. J. Scott, negligent in any particular charged in defendant’s counter-claim?
“A. Yes.
“2. (b). Q. If you answer tire foregoing question in the affirmative, then state wherein said plaintiff was negligent.
“A. Not checking traffic thoroughly.
“2. (c). Q. If you find that A. J. Scott was negligent, did such negligence proximately cause or contribute to the accident?
“A. No — negligence had ceased.
“3. Q. Did the plaintiff stop at the stop sign at the intersection of the county road with U. S. Highway 50 South?
“A. Yes.
“4. Q. At what distance west of the intersection was the defendant when he first observed that plaintiff had passed the stop sign and entered the intersection?
“A. Don’t know.
“5. Q. Could the defendant, by tire exercise of ordinary care, have stopped his car before entering tire intersection after he observed that plaintiff had passed the stop sign, or otherwise have avoided the collision?
“A. Yes, if under control.
“6. Q. Did tire plaintiff stop his truck at any time after passing the stop sign and before the collision?
“A. Don’t know.
“7. Q. What was defendant’s speed at the time he first observed plaintiff traveling in the intersection?
“A. Excessive.
“8. Q. Could the plaintiff have seen tire defendant approaching from the west on Highway 50 South after leaving the stop sign?
“A. Yes.
“9. Q. If you answer question No. 8 in the affirmative, where was the plaintiff when he first could have seen the defendant?
“A. Approximately 10 feet south side of blacktop.
“10. Q. If you answer question No. 8 in tire affirmative, then where was the defendant at the time plaintiff could first have seen him after leaving the stop sign?
“A. 500 to 600 feet.”
Defendant filed a motion to set aside and strike the words “causing loss of control of car” from the answer to question 1. (b), and the answer to question 5, on the ground that such answers were not supported by and were contrary to the evidence. Defendant also moved to set aside and strike the answer to question 2. (c) for the reason that such answer was not supported by and was contrary to the evidence and was inconsistent with other findings, particularly the answers to questions 8, 9 and 10, and for the further reason that the question called for the conclusion of tire jury as a matter of law rather than a finding on a question of fact, and that the answer thereto amounted to a mere conclusion.
With respect to the answers to questions 1 .(b) and 5 this motion was overruled, but was sustained as to question 2. (c), and the answer to that question was therefore set aside and stricken.
Defendant also moved for judgment in his favor notwithstanding the general verdict, for the reason that the answers to special questions and the undisputed evidence showed that defendant was entitled to judgment.
This motion was sustained and judgment was rendered in favor of defendant and for costs.
Plaintiff has appealed and specifies as error the orders striking the answer to question 2. (c), and in rendering judgment for defendant notwithstanding the verdict.
The trial court prepared a written memorandum setting forth the reasons for its ruling. Highly summarized, those reasons appear to be as follow:
Question 2.(c) was improperly given in that it called for a general conclusion as distinct from a specific finding of fact. In answer to question 2. (b) plaintiff was found guilty of negligence consisting of "not checking traffic thoroughly,” such finding being tantamount to the negligence charged by defendant that plaintiff failed to keep a proper and careful lookout for users of the highway. Therefore, the answer to question 2. (c), being in the nature of a conclusion, must yield to the specific detailed finding in the answer to question 2. (b). Such being the case, and with the answer to question 2. (c) stricken, both plaintiff and defendant were found guilty of negligence — that of defendant consisting of excessive speed which caused him to lose control of his car, and that of plaintiff being his failure to check traffic thoroughly — and the only theory upon which plaintiff might possibly be relieved of the legal consequences of his negligent act was that defendant, by the exercise of reasonable diligence, might have avoided the accident. In other words, plaintiff’s only theory of recovery would be under the doctrine of last clear chance, but as defendant’s speed was such that he was unable to control his car there was nothing which he could have effectively done to prevent the collision, and therefore the doctrine of last clear chance is inapplicable and may not, in view of the jury’s findings, be invoked by plaintiff to avoid the consequences of the negligence found against him.
The record in this case shows that the special questions were framed by the parties and submitted without objection, and, fur ther, that at the request of defendant, and without objection by plaintiff, the court gave an instruction on the law of last clear chance. We have examined this instruction and it correctly states the law.
The record further shows that neither party moved for a new trial.
Entirely aside from the fact that an instruction to the jury on an issue in a case, when unobjected to, becomes the law of the case on that subject (Bishop v. Huffman, 177 Kan. 256, 278 P. 2d 588) it would appear that in view of the evidence it was proper to give the instruction on last clear chance.
It is apparent the action of the trial court in ultimately rendering judgment for defendant notwithstanding the verdict, and for costs, was premised on the proposition that the answer to question 2. (c) must be stricken. It is quite true that questions such as “what was the proximate cause of the collision?” (Long v. Shafer, 164 Kan. 211, 214, 188 P. 2d 646); “state whether or not so-and-so was guilty of any negligence which was one of the proximate causes of the collision in question,” (Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 498, 134 P. 2d 681); “do you find from the evidence that the defendant was guilty of negligence that was a proximate cause of the death of decedent?” (Leonard v. Kansas City Public Ser. Co., 167 Kan. 51, 59, 60, 204 P. 2d 760), and “did the plaintiff by her own negligence contribute to her injury?” (Hultberg v. Phillippi, 169 Kan. 610, 614, 220 P. 2d 208) have been held to be general in nature, calling for conclusions, and that general answers to such questions, if contradicted by special or detailed findings, cannot prevail, but are controlled by and must yield to detailed findings of ultimate facts. (Bottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P. 2d 1004; Krey v. Schmidt, 172 Kan. 319, 240 P. 2d 153, and Metzinger v. Subera, 175 Kan. 542, 266 P. 2d 287.) It also is true that under G. S. 1949, 60-2918, when special findings are inconsistent with the general verdict the former control the latter and the court may give judgment accordingly. (See Fralick v. Kansas City Public Ser. Co., 168 Kan. 134, 211 P. 2d 443, and Franklin v. Kansas City Public Service Co., 175 Kan. 626, 628, 265 P. 2d 1031.)
We think, however, that with respect to question 2. (c) and the answer thereto the trial court took too narrow a view in the light of answers to questions 2. (a) and 2.(b) and the fact the jury had been instructed on the law of last clear chance. Under the circumstances, we believe it cannot be said the answer to question 2. (c) amounts to a conclusion and therefore must be stricken. The jury simply found that plaintiff was guilty of not checking traffic thoroughly but that such fact did not contribute to the accident as a proximate cause. One may be guilty of negligence and still not be barred from recovery, under such circumstances. It also is to be noted that question 1. (c) (applying to defendant) is identical to question 2. (c), and by its answer the jury found that defendant’s negligence, consisting of excessive speed causing him to lose control of his car, contributed to the accident as a proximate cause. And so, with the answer to question 2. (c) reinstated, the specific findings of the jury are not inconsistent with the general verdict, are consistent with each other, and fully support the general verdict.
As heretofore stated, neither party moved for a new trial, and neither did the court see fit to grant one on its own motion. For the reasons stated, the judgment of the trial court striking the answer to question 2. (c) and entering judgment in favor of defendant notwithstanding the verdict, and for costs, is therefore reversed with directions to reinstate the general verdict in favor of plaintiff.
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The opinion of the court was delivered by
Fatzer, J.:
The sole question here presented is whether the written statement of the defendant was admissible in the state’s case in chief, where a portion of it referred to an unrelated prior conviction of larceny which could have been separated from the relevant parts of the statement.
Following his arrest for manslaughter in the first degree, the defendant made a statement to Assistant County Attorney Listrom detailing the events leading up to his assault upon the decedent. It was in question and answer form, several pages in length, and was taken before an official court reporter in the presence of two police officers. The following questions and answers concluded the statement:
“A. Now, what trouble have you been in before, Bob? You were up for larceny one time? A. Yes. Q. Hutchinson? A. Yes. Q. You have not been in any trouble since then, other than minor stuff? A. No. Mr. Listrom: Anything else? Mr. Hartner: No. Mr. Listrom: Okay, Bob, is that fair enough? A. Yes. Mr. Listrom: That’s all.”
During the course of the trial and in the state’s case in chief, the defendant’s statement was offered in evidence in the absence of the jury. An objection was interposed to the admission in evidence of that portion quoted above upon the ground that proof of defendant’s former conviction was incompetent to prove the offense charged; that its only purpose was to test his credibility not then in issue; and, that portion objected to could be separated from the relevant portions bearing directly upon the offense charged. The state conceded that defendant’s prior conviction was not similar nor related to the offense charged. The defendant made no contention the statement was not given voluntarily nor that relevant portions concerning the offense charged were inadmissible. The district court concluded that the entire statement was admissible since the defendant raised no objection to its voluntariness, and it was then read in toto to the jury over a repeated objection of the defendant.
The defendant did not testify in his behalf. Among other things, the district court instructed the jury to disregard any statements the defendant may have made concerning any prior conviction for crime and that any such statements might not be considered as any proof of the guilt of the defendant.
Following a vedict of guilty of manslaughter in the fourth degree and the overruling of his motion for a new trial, the defendant has appealed.
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. (State v. Reed, 53 Kan. 767, 774, 37 Pac. 174; State v. Wheeler, 89 Kan. 160, 130 Pac. 656; State v. Frizzell, 132 Kan. 261, 295 Pac. 658; State v. Owen, 162 Kan. 255, 176 P. 2d 564; State v. Winchester, 166 Kan. 512, 514, 515, 203 P. 2d 229; State v. Fannan, 167 Kan. 723, 207 P. 2d 1176; State v. Palmer, 173 Kan. 560, 251 P. 2d 225; State v. Aldrich, 174 Kan. 335, 225 P. 2d 1027; 22 C. J. S., Criminal Law § 682, p. 1084; 20 Am. Jur., Evidence, § 494, p. 428.) 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, 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. (State v. King, 111 Kan. 140, 206 Pac. 883; State v. Stanley, 123 Kan. 113, 254 Pac. 314; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Reuter, 126 Kan. 565, 268 Pac. 845, 83 A. L. R. 603 n.; State v. Turner, 128 Kan. 376, 278 Pac. 58; State v. Caldwell, 131 Kan. 622, 293 Pac. 389, 105 A. L. R. 1290; State v. Callabresi, 135 Kan. 463, 11 P. 2d 725; State v. Gwynne, 142 Kan. 13, 45 P. 2d 849; State v. Grey, 154 Kan. 442, 445, 119 P. 2d 468; State v. Owen, supra.) See, also, 2 Hatcher’s Kansas Digest (Rev. ed.) § 268, p. 237. 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.
Another long-established rule in this jurisdiction, which permits the state to refer to a defendant’s prior conviction is when he takes the stand and offers himself as a witness in his own behalf. In that event, he may be cross-examined with the view of impairing his credibility concerning previous offenses and subjects involving him in degradation and disgrace although they do not pertain to the charge for which he is then on trial. (State v. Pfiefer, 143 Kan. 536, 539, 56 P. 2d 442; State v. Story, 144 Kan. 262, 58 P. 2d 1090; State v. Osburn, 171 Kan. 330, 333, 232 P. 2d 451.) Here, that rule is inapplicable because the defendant was not a witness in his own behalf.
Counsel does not cite, and we find no decisions, where this court has previously passed directly upon the question of the admissibility of a defendant’s voluntary pretrial statement containing reference to prior conviction unrelated to the offense charged; 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. While such statement may include reference to prior conviction of the defendant, as well as to the offense charged, that fact does not prevent the statement being received in evidence for consideration by the jury under proper instructions, where there can be no separation of the relevant from the irrelevant. Under those conditions, the entire statement must be admitted. Where, however, the relevant parts can be separated from the irrelevant, this must be done, and only that part of the statement may be admitted which is competent and relevant to the issues on trial. (Monk v. State, 258 Ala. 603, 606, 64 So. 2d 588; Brown v. State, 232 Ind. 227, 234, 235, 111 N. E. 2d 808; Fehlman v. State, 199 Ind. 746, 753, 161 N. E. 8; People v. Loomis, 178 N. Y. 400, 406, 70 N. E. 919; The People v. Spencer, 264 Ill. 124, 106 N. E. 219; Bode v. State, 80 Neb. 74, 78, 79, 113 N. W. 996; State v. Boswell, 73 R. I. 358, 364, 56 A. 2d 196; State v. Underwood, 75 Mo. 230, 236; State v. Nagy, 27 N. J. Super. 1, 98 A. 2d 613; 2 Wharton’s Criminal Evidence, 12th ed. § 361, p. 74; 2 Underhill’s Criminal Evidence, 5th ed., § 385, pp. 969, 970; 22 C. J. S., Criminal Law, § 820, p. 1441; 20 Am. Jur., Evidence, § 489, p. 426.) Our decisions support the general rule (State v. Cowen, 56 Kan. 470, 43 Pac. 687; State v. Winchester, supra; State v. Stout, 114 Kan. 585, 220 Pac. 180).
In State v. Cowen, supra, the state offered testimony of a conversation with the defendants in which they admitted stealing the chickens for which they were charged, as well as chickens belonging to other persons, and a hatchet, at about the same time. An objection was made that the evidence sought to establish the defendants’ guilt by proving the commission of other larcenies. In the opinion it was said:
“. . . many authorities are cited to the effect that proof of offenses distinct from the one with which the defendants are charged is inadmissible. This is, doubtless, the general rule, though it is subject to some exceptions not necessary now to state. But these conversations were admissible because they were the declarations of the defendants as to what they did on the night of the burglary, and their statements as to the larceny of other chickens were made in the same conversation, and in such manner that they could not well he disconnected from those with reference to the taking of Johnson’s chickens. . . .” (l.c. 471,472.)
The court concluded that the testimony was relevant to establish the defendants’ guilt and that evidence of the other larcenies could not be disconnected or separated from that bearing directly upon the offense charged.
In State v. Winchester, supra, the defendant was arrested for burglary and larceny. Following his arrest he made a written statement to the chief of police and the county attorney. During the trial his statement was offered in evidence, which indicated that colloquy occurred between the two officers during the questioning of the defendant. In answer to the officers’ questions, the defendant stated he had been twice convicted of felony in Oklahoma and served time in its penal institutions. In holding that the admission of the defendant’s statement in the state’s case in chief was highly prejudicial, the court declared:
“. . . nowhere in the record is it shown that that portion 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.
“. . . 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.” (1. c. 515, 516.)
In State v. Stout, supra, defendant was charged with murder in the first degree. He made a voluntary statement concerning circumstances relating to the homicide. His statement was introduced in evidence as a part of the state’s case in chief. The statement contained admissions by the defendant that he had been engaged in the business of selling stolen automobiles. The major portions of the statement were relevant and material. Other portions were immaterial, but failure of the trial court to sever and remove them from the jury’s consideration was held to be not prejudicial. Furthermore, the defendant’s purported explanation of how he came into possession of the decedent’s automobile was important. His explanation opened the subject of traffic in stolen automobiles, which formed the web on which the pattern of the crime was woven. The defendant’s examination by the peace officers took a wide range and many features and incidents of his activities were developed. The court held that portions of the statement were not prejudicial to the defendant although they were immaterial and without probative value. Thus, the court concluded in effect that the immaterial portions could not be separated from the relative portions and that the statement was admissible in its entirety.
The exceptions, heretofore stated, to the general rule that evidence of one crime is not admissible to establish guilt of another, very clearly indicate that the instant case does not fall within either of them. There was no legal relevant connection between defendant’s prior conviction of larceny and the crime for which he was arrested. Defendant’s statement was sufficient to prove the crime charged without further proving that the defendant had been previously convicted of larceny. A statement from the prosecutor that he desired to introduce only that portion of the statement relating to the crime charged would have eliminated the objectionable portion without the slightest injury to the state’s case. Indeed, the portion objected to concluded the statement and it would have been an easy matter to have excluded it. Not only was that necessary precaution wholly omitted, but the district court, over repeated objection of the defendant, received it and permitted the entire statement to be read to the jury. We cannot say that the error thus committed did not affect the substantive rights of the defendant.
The state argues that even if it was error to admit the objectionable portion of the statement, that error was cured when the district court instructed the jury to disregard any statements concerning the defendant’s prior conviction and that it might not consider them as proof of the defendant’s guilt. This was not a case where irrelevant portions of a statement were so intertwined that they could not be separated from the relevant portions. Failure of the district court to sever and remove the objectionable portion from the jury’s consideration was error. The admission in evidence of the prior conviction was prejudicial to the defendant. Clearly, that portion of the defendant’s statement was irrelevant, and its prejudicial effect was not cured by the court’s instruction to the jury. The judgment is reversed, with instructions to the district court to sustain the defendant’s motion for a new trial and to proceed in accordance with this opinion.
, It is so ordered.
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The opinion of the court was delievered by
Price, J.:
This is an action against the sureties on a redelivery bond given in a former action in replevin.
Defendants appeal from an order sustaining a demurrer to portions of their answer.
On June 12, 1954, the plaintiff in the instant action filed an action in the district court of Sherman County at case No. 7123, against one Albert Peter, to replevy a 1953 Chevrolet truck. The petition alleged a demand for possession and refusal, and sought judgment against defendant Peter for possession, or, in lieu thereof, a money judgment in the amount of $2,067.88, that being the value of the truck, together with damages for its detention.
On June 14, 1954, defendant Peter gave a redelivery bond in which defendants in the instant action signed as sureties. The condition of this bond was:
“Now We, the Undersigned, Residents of the State of Kansas, bind Ourselves to said plaintiff— in the sum of 4140.00 Dollars, that said Defendant— shall deliver to the said plaintiff— the property herein returned to him, if such return be adjudged, and pay all costs and damages awarded against him in said action.
“G. H. Mogge
Carroll A. Mogge”
As a result of this redelivery bond defendant Peter retained possession of the truck.
The record as abstracted is rather sketchy, but on November 22, 1954, the court entered judgment against defendant Peter in the replevin action, and the journal entry of judgment recites that the parties had treated the conditional sale contract sued on as a chattel mortgage; that Peter was indebted to plaintiff in the sum of $2,067.88, with interest thereon from June 10, 1954, and ordered the truck to be sold as provided by law for a sale under foreclosure of a chattel mortgage.
On November 23, 1954, defendant Peter filed an appeal to this court, and in addition filed a supersedeas bond in which Murlin McClung and G. A. McClung signed as sureties. . The condition of this bond was:
“Now, if the said Albert Peter, the above named defendant, shall prosecute his said appeal to a conclusion, and shall do and perform all orders made by the Supreme Court therein, and pay any judgment that may be adjudged against him to pay, then this bond shall be null and void.”
In passing, it should be noted that the McClungs are not parties to the instant case.
Defendant Peter’s appeal (case No. 39,792) was dismissed by order of this court on June 3,1955, for want of prosecution.
The record next discloses that on October 4, 1955, the truck was sold pursuant to order of the court, and that it brought the sum of $1,200.
On November 21, 1955, the court entered a further judgment in the replevin action, and the journal entry of judgment, after reciting the facts concerning the sale of the truck and that plaintiff had suffered damage by defendant Peter’s wrongful detention thereof, entered judgment in favor of plaintiff and against defendant Peter in the amount of $867.88, this figure being the difference between the amount of the original judgment rendered and the amount for which the truck was sold, together with interest thereon from June 10,1954.
No appeal was taken from this judgment.
On January 16, 1956, the plaintiff in case No. 7123, against defendant Peter, filed the instant action (case No. 7235) against defendant Mogge, the sureties in the redelivery bond in the former case. The petition sets forth in detail the proceedings in the former action and alleges that no part of the judgment for $867.88 against Peter has been paid, and judgment is sought against defendants Mogge in that amount, together with interest from June 10, 1954.
Defendants Mogge filed an answer denying allegations of the petition and, among other things, alleged the court was without jurisdiction to enter the judgment of November 21, 1955, against defendant Peter in the former action, and that any liability which might have attached to them as sureties in the redelivery bond was extinguished by the filing of the supersedeas in the appeal in the former action.
Plaintiff filed a demurrer to these portions of the answer. This demurrer was sustained and defendants have appealed.
Defendants contend that as a condition precedent to their liability as sureties in the redelivery bond there must have been an adjudication by the court in the former action ordering defendant Peter to return the truck to plaintiff as required in a replevin action; that the most that can be said for the judgment rendered is that it was merely a money judgment based on an amount due on an instrument construed as a chattel mortgage, and further, that their liability was extinguished when defendant Peter filed a supersedeas bond in his attempted appeal to this court — that is, liability, if any, for any deficiency judgment would rest with the sureties on that bond.
There are several reasons why defendants’ contentions may not be sustained.
In the first place, their answer, and argument in this court, amount to a collateral attack on the judgment rendered in the former action. In that case the court had jurisdiction of the persons and of the subject matter, and the judgment rendered,- right or wrong, became final. The rule is well established that when a judgment has been rendered and becomes final it cannot be attacked in a collateral proceeding unless it is made to appear that the judgment is void. (Federal Savings & Loan Ins. Corp. v. Hatton, 156 Kan. 673 [Syl. 2 and p. 679], 135 P. 2d 559; Cole v. Thacker, 158 Kan. 242, 252, 146 P. 2d 665; Mid-Continent Petroleum Corp. v. Frazier, 167 Kan. 113, 118, 204 P. 2d 732.)
In the second place, defendants, as sureties in the redelivery bond, are concluded by the judgment in the former action, in the absence of fraud or collusion between the parties (Kennedy v. Brown, 21 Kan. 171) and are not permitted to retry the issues settled in that action. In other words, in the instant action they are not permitted to set forth defenses which, with reasonable diligence, could have been interposed in the replevin action. (Boyd v. Huffaker, 40 Kan. 634, 20 Pac. 459.) In Bank v. Martin, 81 Kan. 794, 106 Pac. 1056, it was held that sureties in a redelivery bond in replevin are bound by the judgment in the replevin action. On the general principle involved see also Prather v. Johnson, 168 Kan. 149, 152, 211 P. 2d 98. One of the conditions of the bond before us is that defendant sureties undertake to pay all costs and damages awarded against defendant Peter in' that action. The judgment rendered was for the depreciation in value of the truck while it was in possession of Peter. (See Walrus Manufacturing Co. v. Quackenbush, 128 Kan. 216, 276 Pac. 806, and opinion denying a rehearing found at 128 Kan. 474, 279 Pac. 3.)
And finally, defendants’ contention with respect to their being relieved of liability as sureties on the redelivery bond because of the filing of the supersedeas bond, is likewise without merit. The supersedeas bond in the attempted appeal in no way relieved de fendants of their liability and was an entirely separate and distinct undertaking. No authority is cited, and we know of none, to the effect that such bond, under the circumstances, in any way affected defendants’ liability in the redelivery bond.
For the reasons stated, the trial court did not err in sustaining the demurrer to those portions of defendants’ answer in question, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs recovered a judgment for $1,-640.40, and the defendant appeals. The plaintiffs entered into a written contract, dated January 24, 1917, with T. H. Moore, to convey to the latter certain real property owned by the plaintiffs in Leavenworth county, for $4,256.25, of which $100 was paid in cash, and $4,156.25 was to be paid March 1, 1917. The contract was in writing and was in duplicate. Both copies were prepared by H. E. Cockrell, and were by him sent to the plaintiffs who resided in Minnesota. They signed both copies and returned one of them to Cockrell. The contract provided that the contract and deed, when signed, should be deposited in escrow in the Jarbalo State Bank, a corporation. The contract was divided into articles, the first one of which described the land and stated that it was free and clear of all encumbrance except $1,425 and interest. The second article of the duplicate retained by the plaintiffs, a copy of which was attached to the plaintiffs’ petition, contained the following words:
“First parties agree to sell to second party the above' described real estate for the sum of forty-two hundred fifty-six — 25-100 dollars ($4,-256.25), and to accept pay for same on the following terms: $100.00 in cash this date deposited in The Jarbalo State Bank to be held in trust until all papers are drawn and signed (contract and deed), and deposited in said bank in escrow and the balance $4,156.25, March 1, 1917, and to convey said real estate as described in article I of this instrument, subject to the incumbrance therein named.”
The answer, which was verified, denied the allegations of the petition, and alleged that if the words, “subject to the incumbrance therein named,” appeared-in the copy of the contract held by the plaintiffs unerased, they were left there by ignorance and mistake ón the part of those signing the contract. The answer also set out all or a large part of the correspondence between the plaintiffs and H. E. Cockrell, the agent who negotiated the contract for the sale of the property. The verified reply denied “each, all and every allegation in said answer contained.”
March 1, 1917, W. T. Francis, acting for the plaintiffs, mailed a letter to F. B. Morgan, as president of the Jarbalo State Bank, and inclosed the deed from the plaintiffs to T. H. Moore. That letter was as follows:
“Herewith please find deed from Harry and Lottie Stone to T. H. Moore for farm belonging to Harry Stone in Leavenworth county, Kansas, for delivery to T. H. Moore upon payment to you, for delivery to me the sum of $4,256.25; as per contract entered into on the 24th day of January, 1917, between Harry Stone and wife and said T. H. Moore.
“The contract refers to a mortgage of $1,425 now outstanding against this land and also provided that the parties of the second part will pay to you the said sum of $4,256.25, subject to the incumbrance of the mortgage above named.
“On payment to you of said sum of $4,256.25 you may deliver the executed deed to Mr. Moore and remit the $4,256.25 to me.”
Morgan had been president of the defendant bank, but was not holding that position at, the time the letter was written. He received the letter, and by mail sent it and the deed to T. H. Moore, who was a bookkeeper in the bank. H. E. Cockrell was the cashier. Moore received the deed and reported that fact to Cockrell. The next day Cockrell sent to the plaintiffs a draft for $2,615.85, and in the letter transmitting the draft, stated that the draft was in full for the land. The plaintiffs immediately responded that they would not accept the amount remitted as the balance due on the purchase price. The dispute that arose in this manner culminated in the present action.
1. One of the questions argued by the defendant is that the court committed error in excluding from evidence the copy of the contract produced by it on the trial. From the copy produced by the defendant the words, “subject to the incumbrance therein named,” had been erased. On March 3, 1919, but before the trial, the plaintiffs notified the defendant and its attorney of record that they requested an inspection and copy of certain letters. That notice contained the following:
“You are hereby further notified that the undersigned, as attorney for the plaintiff desires an inspection of the agreement between Harry Stone and Lottie Stone, dated January 24th, 1917, for the sale of the real estate in controversy.
“This demand is made under section 7270 of the code of civil procedure, of the statute's of the state of Kansas for the year, 1915.”
A dispute has arisen concerning the contents of that notice. The plaintiffs contend .that the notice named the contract between Harry Stone and Lottie Stone and T. H. Moore, while the defendant contends that the notice was as herein quoted. For the purpose of this discussion we have accepted the contention of the defendant as being true. The defendant did not produce the contract for inspection previous to the time of trial, when the defendant offered it in evidence. The plaintiffs objected to its introduction for the reason that the notice had not been complied with. That objection was sustained. The defendant argues that under the notice given it was not compelled to produce the contract for inspection. The copy of the contract offered by the bank was not set out in the pleadings. The statute, section 366 of the code of civil procedure, under which the notice purports to have been given, reads:
“Either party or his attorney if required shall deliver to the other party or his attorney a copy of any deed, instrument or other writing whereon the action or defense is founded, or which he intends to Offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused. This section shall not apply to any paper a copy of which is filed with a pleading.” (Gen. Stat. 1915, § 7270.)
The notice did not strictly comply with the code, but the court thinks that it was sufficiently definite and certain to enable the defendant, without any possibility of making a mistake, to determine exactly what instrument the plaintiffs desired to inspect. The defendant should have complied with the request, at least to the extent required by the statute. The defendant further insists that it was excused from complying with the request by the fact that it did not have control of the copy of the contract. The contract was drawn by H. E. Cockrell, the defendant’s cashier, and was with T. H. Moore, its bookkeeper. Evidently one or both of them had the copy of the contract. When the bank was notified of the request of the plaintiffs, Cockrell and Moore must have known of that request, and must have deliberately declined to comply there with, and the bank cannot escape the consequences of their conduct. The court rightly excluded from evidence the copy of the contract produced by the bank.
2. The defendant complains' of the exclusion of the correspondence between Oockrell and the plaintiffs which the defendant offered in evidence for the purpose of proving the terms of the contract between the plaintiffs and Moore. This action is not between the plaintiffs and Moore, the person with whom they contracted and who was the grantee named in the deed signed by them; the action is against the defendant bank for delivering the deed to Moore contrary to the instructions to the bank. Moore is not a party to the action. No reformation of the contract can be had in this action, and none is asked. The instructions to the bank were to turn over the deed on the payment of $4,256.25. The instructions were not followed. If they could not be followed, it was the duty of the bank, not to construe the contract, but to hold the deed and notify the plaintiffs that their instructions could not be complied with, and to ask for further direction concerning the disposition of the deed. This conclusion is supported by Bank v. Wilson, 101 Kan. 72, 165 Pac. 859, Allen v. Bank, 102 Kan. 592, 171 Pac. 638, Supply Co. v. Bank, 103 Kan. 654, 176 Pac. 129, and Bank v. Bank, 106 Kan. 303, 187 Pac. 697. On this question the correspondence between Cockrell and the plaintiffs was wholly immaterial, and was properly excluded.
Responding directly to the complaint of the defendant, the court says that the plaintiffs introduced in evidence their copy of the contract; it was not ambiguous; it did not require any explanation; and all preliminary negotiations, whether oral or in writing, were merged in the contract. When the defendant failed to introduce in evidence the copy of the contract produced by it, there was no reason for introducing in evidence the negotiations preliminary to the contract.
3. The defendant denies having received the letter written by the plaintiffs transmitting the deed to P. B. Morgan, the former president of the bank. The evidence clearly shows that Morgan received both the letter and the deed, and tends to show that he inclosed them in another envelope and mailed them to T. H. Moore. The evidence clearly shows that Moore received the deed; he must have received the letter with the deed. Moore informed Cockrell that he had received the deed. Cockrell made out the draft for $2,615.85, and sent it to the plaintiffs. The jury was justified in concluding that Cockrell had knowledge of the letter, and that the bank had received it.
4. The defendant complains that the plaintiffs were permitted to read in evidence certain depositions taken by them, after the depositions had been withdrawn and refiled without notice to the defendant. On the question of notice the record seems to be against the defendant, for the defendant in its abstract states that on April 24 the court made the following order:
“Now on this 24th day of April, 1919, came the plaintiff herein by W. W. Hooper, Esq., one of their attorneys, and also comes the defendant herein by John T. O’Keefe, Esq., its attorney, and thereupon on application of plaintiff’s attorney, leave is hereby given plaintiff’s attorney to temporarily withdraw depositions of plaintiffs, filed April 22, 1919, to have the notary public properly certify them according to law, to all of which the defendant duly excepts.”
The order clearly shows that the defendant had notice of the application to withdraw the depositions, and recites the purpose of the withdrawal. Such withdrawal for the purpose named was within the rule established by the authorities. (18 C. J. 722, 723.)
5. The defendant pleaded and now argues that the plaintiffs accepted the money sent to them by H. E. Cockrell in full satisfaction of the purchase price. The evidence tended to show that Moore, immediately upon receiving the deed to the land, conveyed it to other parties, who executed a mortgage thereon. Moore, therefore, could not reconvey the land to the plaintiffs. They received the money on the draft after they discovered that the land had been sold by Moore. In support of its argument the defendant cites Neely v. Thompson, 68 Kan. 193, 75 Pac. 117, Baugh v. Fist, 84 Kan. 740, 115 Pac. 551, and Contracting Co. v. Railway Co., 102 Kan. 799, 172 Pac. 527, where it was held that on a claim, the amount of which is disputed, the acceptance of an amount less than that claimed, in full satisfaction thereof, discharges the obligation. There was no dispute about the amount of money named in the letter of instructions to the defendant. The defendant could not deliver the deed for less than the amount named, and remit that amount to the plaintiffs and say that a dispute existed concerning the amount that the plaintiffs were to receive for the land. The situation in the present action is more like that described in St. L. Ft. S. & W. Rld. Co. v. Davis, 35 Kan. 464, 11 Pac. 421, where it was held that:
“The payment of a portion of an ascertained, overdue, and undisputed debt, although accepted in full satisfaction, and a receipt in full is given, is not a satisfaction of the balance; and will not, where there is no new consideration, estop the creditor from recovering the remainder of such debt." (Syl. ¶1.)
And it was also held that:
“Before the acceptance by the creditor of an amount less than is claimed will operate as a settlement or satisfaction of the entire debt, it must have been accepted on an express agreement to that effect.” (Syl. ¶ 2.)
Even if there were a misunderstanding between the plaintiffs and Moore concerning the amount that the plaintiffs were to receive under the contract, the defendant could not deliver the deed to Moore and escape the consequences of violating the instructions.
The plaintiffs contend that the evidence showed that the bank received the full amount of $4,256.25, but the court has considered the matter as though the bank received only the -amount remitted in the draft.
If this action were by the plaintiffs against Moore for the recovery of the balance of the purchase price, the evidence that was introduced would not necessarily establish that the plaintiffs accepted the draft, or the money thereon, in satisfaction of the full amount of the purchase price claimed by them.
Other questions are argued by the defendant, and they have been examined, but the court does not find anything in them to warrant a reversal of the judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
MASON, J.:
The Wilsey State Bank sued Anthony E. Amend and his wife upon four promissory notes executed by them to W. E. Stuart Land Company, the plaintiff claiming by indorsement before maturity as a holder in due course. The defendants filed a verified answer which, in addition to a general denial and other matters not necessary to be stated, alleged that the plaintiff held the notes merely for collection; that they were given as a part of the price of real estate at the time of the execution of a written contract (which was set out) for its purchase by them from the land company; and that such company had failed to furnish an abstract of title as required by the contract. A general denial by the plaintiff closed the issues. A verdict was returned for the defendants, on which judgment was rendered. The plaintiff appeals.
1. The charge to the jury included a statement to the effect that the verdict should be for the defendants if it were found that the plaintiff was not the owner of the notes sued on, but was only holding them for collection. At the request of the plaintiff this special question was submitted: “Is the. plaintiff the owner and holder of the notes sued on in this action?” The jury answered: “No.” In view of the instruction referred to and of the defendants’ pleading on the subject this response must be interpreted as meaning that the plaintiff held the notes merely for collection. The plaintiff contends that even in that case it was entitled to recover, and that the instruction was erroneous. One who holds thé legal title to a note, although without beneficial interest, may maintain an action thereon in his own name. (Manley v. Park, 68 Kan. 400, 75 Pac. 557; Greene v. McAuley, 70 Kan. 601, 79 Pac. 133.) Assuming that this rule would enable a suit on a note to be maintained by one to whom it had been delivered for collection, we do not regard the instruction in question as warranting a reversal under the circumstances here presented. No instruction covering that phase of the matter was requested by the plaintiff, nor does it appear that the attention of the trial court was specifically directed to it in any way. In the pleadings the defendant alleged and the plaintiff denied that the notes were held for collection. The plaintiff claimed not as a holder for collection but as a purchaser for value before maturity under an indorsement to it without recourse. The case was tried largely upon the issue of its being a holder in due course. Strong evidence was given in behalf of the plaintiff that it had purchased and paid for the notes before their maturity. There was also evidence, however, that the cashier had stated that they were held merely for collection. In view of these considerations we do not feel justified in setting aside the judgment merely because as an abstract proposition the maker of a note cannot defeat an action on it by showing that some one other than the plaintiff is entitled to the proceeds of the litigation. Inasmuch, however, as the verdict is clearly based on the plaintiff’s want of title, the judgment obviously does not constitute an adjudication that the defendants are not liable on the notes, and will not operate as a bar to another action thereon whether brought in the name of the bank or of the original payee. It does, however, finally determine that the bank has none of the rights peculiar to the innocent purchaser of negotiable paper.
2. The plaintiff asserts that the evidence had no tendency to establish a defense on the merits and that therefore its demurrer thereto should have been sustained, and there being no substantial controversy as to the facts a judgment should now be ordered in its favor. A part of the defendant’s answer was merely an attempt to state — perhaps incorrectly — the effect of a written contract as a part of which the notes were given. The contract itself, however, was set out in full, showing an agreement substantially to this effect:
The land company agreed to sell and the defendants to buy land in Texas. The defendants gave the four notes sued upon (due respectively in twenty days, sixty days, four months, and six months), which were said to be received as earnest money, to be applied as part payment. Upon the payment of these notes and the execution of vendor’s lien notes for a like amount by the defendants, the company was to deliver a deed with an abstract of title and a certificate of one of three lawyers named as to its sufficiency, which the defendants were to accept.
The defendants pleaded, among other things, that the company had refused to furnish such abstract of title or legal opinion. Evidence was given in their behalf that a representative of the company, about two weeks before the maturity of the last note, asked the defendants to pay the notes that had been given and to execute the vendor’s lien notes required by the contract, offering if they did so to deliver the deed and the abstract of title; that the abstract was a document of some three or four hundred pages, and the defendants’ attorney asked for several days or a reasonable time in which to examine it; and that the company’s representative refused to leave it, saying that he was going away that afternoon and wanted the new1 notes signed then or not at all. This evidence would support a finding that the company had refused to give the defendants a reasonable opportunity to inspect the abstract before closing the deal, and wte think such a finding would be a sufficient defense to the action upon the notes. The contract contained these provisions:
“The company agrees that on or before sixty days from date hereof, or within a reasonable time thereafter, provided first this contract has been approved by the president of the company, and the purchaser has paid or caused to be paid to the company an amount equal to one-half of the total purchase price named herein, and shall have executed the vendor’s lien notes stipulated above, to convey or cause to be conveyed to the purchaser by general warranty deed, the above-described land free and clear of all liens, taxes, encumbrances and charges of every nature whatsoever, except as may be otherwise provided herein. . . .
“The company further agrees to furnish td the purchaser at the time of the delivery of the deed an abstract of title to the above land properly certified to date, showing good and merchantable title, with taxes paid to January 1, 1918, and in addition thereto also agrees to furnish to said purchaser a certificate of opinion, certifying the title good and merchantable. . . .
“When the payments have been made as provided herein the company agrees to convey or cause to be conveyed the land herein described as provided herein.”
From this language the plaintiff argues that it did not devolve upon the company to make and deliver the deed, abstract and certificate of opinion until the defendants had paid the notes which they had already given and executed the new ones. It did, however, devolve upon it to offer to do so. Where a contract is made for the purchase of land, the purchaser giving a series of notes coming due at different times, the conveyance to be made upon the completion of the last payment, if the vendor refrains from suing until that time has arrived, he must tender the deed prior to commencing his action on the notes. He is not relieved of this obligation by the fact that the -purchaser has failed to pay his notes as they have matured and is in that respect in default. (Soper v. Gabe, 55 Kan. 646, 41 Pac. 969.) A failure of the title would be a defense even to notes that had matured before the time for the delivery of the deed had arrived. (Yost v. Guinn, 106 Kan. 465, 188 Pac. 427.) The notes not having passed into the hands of an innocent purchaser, and no action having been brought until all had become due and the time for closing the contract had arrived, it was necessary in order to fix the liability of their makers that the ability and willingness of the vendor to perform its part should be demonstrated. The mere exhibition to the purchaser of an abstract of title without a reasonable time being allowed for its inspection Would not be a compliance with a requirement for its tender. The object of the abstract being to show the condition of the title, an agreement to furnish it implies that a fair opportunity is to be given for its examination.
The contract provided that if the defendants should fail to pay the notes sued upon at maturity the contract should at the option of the company become void and the notes should be forfeited to it as liquidated damages. No reliance appears to be placed upon this provision, and whatever effect might be given it under other circumstances it could be of no avail here.
3. Complaint is made because one of the defendants in the course of his testimony as to his talk with the plaintiff’s cashier, the purpose being to show that the bank did not own the notes, was permitted to state what he had said to the cashier regarding his liability on them. The ruling could not have been prejudicial, since the judgment is based wholly on the theory of nonownership and not on the absence of liability.
The plaintiff claimed to have bought the notes, indorsed as already indicated, on March 2, 1918. One of the defendants testified that he saw them at the bank about two weeks later and that they then bore no indorsement. The plaintiff offered to show by another witness that he had seen them on April 1, 1918, and that they then were indorsed to the plaintiff. The offer was refused, and the ruling is assigned as error. The testimony was not very important, since it did not necessarily contradict the testimony concerning the condition of the notes when the bank claimed to have acquired them. Moreover, no evidence that the witness would have testified in accordance with the offer appears to have been produced at the hearing of the motion for a new trial, as required by the statute. (Gen. Stat. 1915, § 7209.)
Complaint is made because the court in its instructions, in stating the defenses pleaded, omitted to say specifically that the defendants denied that the plaintiff had purchased the notes before maturity and for value. The court stated that the petition alleged such an acquirement of the notes, that the answer included a general denial, and that the matter was in issue; therefore, 'no prejudice can have resulted from the omission.
It is urged that the evidence of the cashier’s statement that the notes were in the bank for collection could only raise a suspicion as to whether the plaintiff held them in good faith, and is not enough to overthrow the positive testimony in support of its claim. The matter involves the weighing of evidence, and the decision of the trial court thereon is final.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
In this action a partition of real estate was asked by plaintiff's, and, it being denied, they appeal from the judgment.
Shortly before his death, J, S. Brookens executed a will in which several 'charitable bequests were made and the use of certain pieces of real estate was given to two unmarried daughters. It was then provided that the residue of his property, real, personal, and mixed, was devised and bequeathed to his six children, including the daughters, share and share alike.
The controversy herein arises over the partition oí a farm, the use of which was given to the daughters. The item of the will relating to this use is as follows:
“Item V. I give, devise and bequeath to my daughters, Angie Brook-, ens and Floretta Brookens my home known as Lot Number one in Jones Addition to the City of Holton, Jackson County, Kansas, for a home for such time as the^ or either of them shall remain unmarried, that is to say, that so long as both of my said daughters remain unmarried it shall be their joint home, but upon the marriage of one of my said daughters, it shall be the home of the other, until such time as she may marry, in which case or her death, it shall then pass to and be controlled by the provisions of Items VII and VIII of this my last will and testament. And my said daughters in this item mentioned shall also have the entire rents and profits of my farm in Smith county, during the time the same shall remain unsold, and they, or either of them, shall remain unmarried.”
It appears that J. S. Brookens died testate on January 19, 1914, and that shortly afterwards the daughter Floretta was married to E. R. Reynolds. The other daughter, Angie Brook-ens, is unmarried and is occupying the home in Holton, and enjoying the use of the farm sought to be partitioned. Three of the six children are asking for a partition of the farm, but are not claiming that the Holton home is subject to division. It is first contended that the land sought to be partitioned is not described so as to bring it within the use provided for in item five of the will. It will be observed that the land is described by the testator in his will as “my farm in Smith county,” and there is no claim that he owned any farm land in Smith county other than this tract. A description of a tract of land, although general, is sufficient where it points with reasonable definiteness to its location. Ownership is an aid to identity, and as the will in this case describes the gift as “my farm in Smith county,” both ownership and location are given, and together they leave no doubt as to the intention of the testator or as to the identity of the property devised. (Bacon v. Leslie, 50 Kan. 494, 31 Pac. 1066; Zirkle v. Leonard, 61 Kan. 636; 60 Pac. 318; Keepers v. Yocum, 84 Kan. 554, 114 Pac. 1063.)
The principal contention is that under the will the daughters were only to enjoy the use or the rents and profits of the farm until it was sold, and that as a sale may be effected through a division and distribution of the property among the heirs, it is therefore subject to a partition. It is argued that the expres sion, “during the time the same shall remain unsold,” does not refer to a sale by mutual consent; that a sale would ordinarily be necessary to a division of the property into six shares; and that a sale in this partition proceeding would conform to the terms of the will and terminate the rights of the daughters to the rents and profits of the farm.
• We see no difficulty in determining the purpose of the testator. It was first, to provide a home for his daughters as long as they or either of them were unmarried, and upon the marriage of one of them, it should be the home of the other, and if she should marry or die, then the property should be equally divided among the surviving children. Following this gift of the use of a home is a provision for their maintenance while they were unmarried, and this was done by giving them the rents and profits of the farm “during the time the same shall remain unsold, and they or either of them, shall remain unmarried.” The provision in relation to the use of the land, read in the light of the preceding provision, clearly shows that the testator intended to provide not only a home in which the unmarried daughters might live, but also to provide for the maintenance and care of each of them while she was single and without the care and protection that a husband would give her. The gift might have been made clearer by more elaboration, but it was the manifest purpose of the testator that the use of the farm should continue as long as either of the daughters was unmarried. He also added the clause “during the time the same shall remain unsold.” Evidently he contemplated that a sale by mutual consent might possibly be agreed upon by the heirs and legatees for whom provision was made.. Under the will there can be no division of the property while Angie Brookens is unmarried, without her consent. The plaintiffs are not in possession of the property, nor are they entitled to possession or partition of it at this time.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
WEST, J.:
The plaintiffs sought to cancel an oil lease, failed in their action, and appeal from an adverse decree.
The pivotal provision in the instrument was this:
“The second party agrees to commence an oil or gas well on said premises on or before February 1, 1918, or in lieu thereof this lease is void from the agreed date.”
The well was not begun in the time specified, two extensions were granted, and the petition alleged that during the periods thus covered no well was begun; that the conditions of the lease had been broken and the defendant notified that its lease was thereby forfeited, and demand made in writing for surrender and release.
The defendant alleged that it had paid the required rental; that the plaintiffs had requested it not to drill upon the land, but to drill upon other land, and thereby waived the provisions of their lease; and that when an attempt was made to drill upon their land the plaintiffs refused to permit such an attempt to be carried out.
The plaintiffs by their reply alleged that the requests to the defendant not to drill upon the land were void because verbal and in violation of the statute of frauds.
The court found and decreed that the plaintiffs were not entitled to cancellation; that it would be inequitable to decree cancellation; that the plaintiffs were estopped by representations to the defendant; and ordered that unless the defendant should begin drilling within a certain date fixed the lease would be forfeited.
Error is assigned upon the admission and exclusion of evidence, the denial of a new trial, and on the decree as contrary to the evidence.
Counsel in their brief condense these assignments into three points: The termination of the lease, the admission and exclusion of testimony, and the denial of a new trial; but in their written, as well as their oral, argument they base their contention almost exclusively on the proposition that the alleged waivers were not joined in by the plaintiff, Lulie Laverty, and that as the land covered by the lease was the homestead of the plaintiffs, the husband could not waive any of the pro visions of the lease amounting to a change therein without the joint consent of his wife and, hence, such attempted waiver by him alone was void and of no effect.
As the trial was before the court the presumption is that proper evidence only was considered in reaching its conclusion (Wilson v. Colborn, 106 Kan. 440, 188 Pac. 430), and we will follow counsel on both sides and assume that the real determining question in the case is the effect of the wife’s failure to join in the alleged waiver. The lease in question granted for a term of ten years—
“The following- described premises . . . full and exclusive authority to enter upon said premises and to drill, operate for and procure oil, g-as and minerals, together with the right of taking upon said premises and removing therefrom, any machinery^ tools, lumber, pipe, casing, and other things necessary in said work and to construct on said premises and remove therefrom, pumping plants, tanks, pipe lines and other things necessary in the operation of this lease, avoiding as far as possible, damage to said premises and growing crops.”
This instrument is of such character as to involve the homestead rights of each of its owners. (Land Co. v. Gas Co., 43 Kan. 518, 23 Pac. 630; Gas Co. v. Land Co., 54 Kan. 533, 38 Pac. 790.)
Assuming that when the time limit expired, the lease, according to its terms, became void, then an extension must necessarily be equivalent to a new lease, and unless the original lease would be valid without the wife’s joint consent, such extension would not be valid. (See opinion in Watson v. Watson, on second motion for rehearing, 106 Kan. 693, 189 Pac. 949, and cases cited.)
The provisions quoted make it plain that the instrument involved the occupation of the homestead. It is conceded that the wife did not join in the extension agreements. While it was argued that she had knowledge of them, and while she may have tacitly consented to all but the last one, she in no wise lent her consent to that one. Sometimes, invoking the homestead right may seem unfair and appear to work a hardship, but this furnishes no reason for removing any of the restrictions which the constitution and statute have placed around a Kansas home.
The decree is reversed, and the cause is remanded with directions to enter a decree in accordance herewith.
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The opinion of the court was delivered by
Dawson, J.:
This action was for $800 as insurance for the loss of household goods destroyed by fire in Cawker City. Plaintiff held no policy of insurance issued by defendant, but based her action' on the ground that the defendant should have protected her property by insurance because of prior and long continued custom of business dealings which had existed between the parties, and because of the circumstances involved.
The insurance on plaintiff’s goods had been carried by the defendant for many years. From time to time, as succeeding policies matured, the defendant’s agent, who was a neighbor and friend of the plaintiff and her husband, attended to their renewal. This agent, Peter Gengler, usually filled out plaintiff’s application for insurance, signed her name or her husband’s, and when he did so, he added his own initials, “P. G.,” to such signatures.
Plaintiff’s husband died in 1916. She went to California after her husband’s death, not intending to return until after the insurance would expire, February .16, 1917. She requested Gengler to renew- the insurance and to get the premium payment therefor at her banker’s in Cawker City.' Accordingly, when the policy was about to mature, Gengler prepared an application for renewal of the insurance and signed it:
“Signed in the presence of Mrs. Grace L. Snyder, Applicant
Peter Gengler, Agent By P. G.
R. W. Snyder Est”
On this application, the defendant, as usual, renewed the insurance for the year ending February 16, 1918.
In the autumn of 1917 plaintiff told the agent she was going away from her home in Cawker City and would like to remove her household goods to a building down town. Gengler assured her that she could do so and that he would arrange the transfer. She removed some of her goods accordingly, but part of them remained in plaintiff’s home.
On January 10, 1918, the defendant wrote to plaintiff:
“Mrs. Grace L. Snyder, Cawker City, Kansas. . . .
“Policy No. 25330 held by you in this company expires on the 16 day of Feb. 1918. We shall be pleased to have a renewal from you.
“Mr. Peter Gengler of Cawker City, Kans. is our agent in your vicinity, whom we have instructed to call on you, but should he fail to do so before your policy expires, notify this office, and we will forward to you the proper blank, which you can fill out and send in to the company, thus keeping your insurance in force.
“We thank you most cordially for your loyal support and business patronage in the past, and trust that the treatment accorded you during your connection with the company has been such as to merit a continuation of both your confidence and your patronage.
“The Farmers Alliance Insurance Co.
“C. F. Mingenback, Sec’y.”
On February 11, plaintiff wrote to Gengler:
“Friend Pete—
“I believe my insurance expires Feb. 16.
“I am. inclosing check for $12.00 and if you show this letter to John MeClun, he will pay the balance as I do not know how much to send. Think I still have a few dollars in F. & M. Bank.
“I hope your health is improving and that you will decide to buy my Cawker home.
“Regards to the folks. Send the policy to Mrs. Clarence F. Drake, Mankato, Kansas. Yours sincerely, Grace L. Snyder.
“438 S. 5th St., Salina, Kans., Feb. 11, ’18.”
Gengler received this check, but owing to a stroke of paralysis he was unable to attend to business, and he indorsed it to one J. EL King of Cawker City, another insurance agent, with the request that the latter procure insurance on plaintiff’s goods. King was plaintiff’s agent for the sale of her Cawker City home, and he wrote a special-delivery letter to the plaintiff, who was then in Salina. She received it at 1:30 p. m. on Saturday, February 16. .Her insurance policy issued by defendant had expired at noon that day. Plaintiff was reluctant to tell what were the contents of the letter because of some private matters it contained, and it was not produced; but she admitted that it informed her that Gengler had turned over the check to King and that Gengler had requested him to write insurance on the property. It also apprised her that the defendant had not renewed the insurance, and that consequently she had no insurance. Plaintiff took no step to procure other insurance; King did not cash the check indorsed to him by Gengler; and in some manner it came back to her and her attorneys. On the following Monday the goods winch she had placed in the building down town were burned.
To plaintiff’s demand for payment of insurance under the circumstances narrated above, defendant denied liability. She sued and got judgment, and defendant appeals.
A number of interesting questions under the assignment of error is presented, but these may not require discussion in detail. There was no insurance on the property at the time the goods were burned. Was that in any degree the fault of the defendant? Of course the company itself was guilty of no fault unless it is chargeable therewith because Gengler was its agent. It issued no renewal policy of insurance on the goods. It reminded the plaintiff on January 10, 1918, that her policy would expire on February 16, 1918, and that it would be pleased to renew it. It advised her that it had instructed its agent in her vicinity to call on her, — “but should he fail to do so before your policy expires, notify this office, and we will forward to you the proper blank, which you can fill out and send'in to the company, thus keeping your insurance in force.”
The agent Gengler had been stricken with paralysis and did not call her. She was advised to some extent, at least, of his indisposition; in her letter to him she expressed the hope that his health was improving. Gengler could not attend to the matter for her; but, although incapacitated he was carried to King’s office and managed with his left hand to indorse the check, and made the request that King provide the desired insurance. While King did not do so, he let the plaintiff know of the circumstances within an hour and a half after the insurance expired, and a day and a half before the goods were burned. It was, in our judgment, the duty of plaintiff, in ordinary-prudence, to procure insurance at once. She was in Salina when she learned her insurance had expired, within easy telegraph and telephone communication with the de fendant’s headquarters in McPherson; she could have communicated the same way with King in Cawker City; or, doubtless, she could have procured insurance on her property from an agency in Salina. At all events, she did nothing, knowing that Gengler had not renewed it pursuant to her letter of February 11, and knowing that she was without insurance.
Of course, this is not altogether a one-sided controversy; and counsel for plaintiff make a plausible case for her. Gengler was an old and trusted friend of plaintiff. In former years he had attended to the matter of renewals for herself and her husband, even to the extent of supplying the details to be filled into their applications for insurance, and had signed their names to such applications. But in January preceding the expiration of the last renewal he was stricken with a griévous malady which paralyzed half his body and his right arm, and he was no longer able to attend to business. That he made some effort to continue to oblige his friend, the plaintiff, by doing in part those favors he was formerly accustomed to do, and tried to get another insurance man to furnish plaintiff with insurance protection, and turned over to him the plaintiff’s check, does not in our judgment constitute a binding obligation against the defendant. It is needless to consider whether Gengler was a mere soliciting agent or general agent of the defendant. Gengler made no contract with plaintiff for renewal pursuant to her letter tó him. When he arose from his sick bed and was carried to King’s office and made some effort to get King to insure the goods, he certainly was not acting as agent, either general or special, for the defendant company.
This case is not like one where the patron of an insurance company, having solicited insurance and having been assured that it would be provided, suffers a loss when he has been led to believe that his application for insurance had been granted. In this case, plaintiff knew her application had not been granted, and that she had no insurance. Having none, through no fault lawfully attributable to defendant, she has no claim on the Farmers’ Alliance Insurance Company for her fire loss.
The judgment is reversed, and the cause remanded with instructions to enter judgment for defendant.
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The opinion of the court was delivered by
Mason, J.:
In a motion for a rehearing stress is laid upon the fact that at common law the remedy of recoupment was allowed only with respect to matters connected with the transaction out of which the plaintiff’s cause of action arose. The decision was not based upon the theory that the cross demand of the defendant Baker could be litigated in this action because it fell within the definition of common-law recoupment. .The reference to recoupment was for the purpose of illustrating that where no affirmative relief is sought under it a cross demand in favor of one of several defendants is not rendered unavailable as a defense on the ground of want of mutuality.
The motion for a rehearing is overruled.
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The opinion of the court was delivered by
Dawson, J.:
This is an application for a writ of habeas corpus.
The petitioner was prosecuted in the court of Topeka for a public offense. He pleaded guilty, and on January 9, 1920, he was sentenced to the county jail for ninety days. At the same time he applied to the judge of the court of Topeka for a parole. A parole was granted. Within a few days the attorney-general notified the judge of the court of Topeka— a court of limited jurisdiction — that he had no judicial power to grant paroles, and so the petitioner was again taken into custody on January 17,1920. Thereupon the petitioner applied to the district judge of Shawnee county (first division) for a parole. This was heard in part and continued for further evidence, but a stay of proceedings was granted; and on January 20, the petitioner appealed to the district court from the judgment pronounced against him by the 'court of Topeka on January 9. On February 14, the district judge denied the petitioner’s application for a parole.; and on March 13, his appeal from the judgment of the city court was dismissed on motion of the state because the appeal was taken too late, and a mandate of the district court was issued directing that the judgment of the court of Topeka be executed. Pursuant thereto, the petitioner was incarcerated in the Shawnee county jail until April 26, when he applied to this court for a writ of habeas corpus. Pending our determination of this application the petitioner has been at liberty on bond.
The gist of the petitioner’s claim of right to release on habeas corpus is because the commitment was void:
“That it was not issued until a long- time after said judgment had fully expired; and that said Justice of the Peace had no right or authority to issue said commitment or warrant at the time; in that, it has long since expired and is void on its face and is without any authority, in that said respondent has no legal authority therein for confining your petitioner in the county jail of Shawnee county.”
While the above chronicle shows the divers and sundry maneuvers made by this petitioner to avoid the judgment and consequences of his crime, it plainly shows that he has not yet served the adjudged term of ninety days in jail. Petitioner invokes the old rule that one who has been sentenced to a term of imprisonment is entitled to his discharge at the time when that term would have ended if he had been promptly incarcerated when sentenced. That rule, although a debatable one and one given more significance in olden times than now, covers cases of official neglect and indifference, irregularities for which the defendant has been in no way responsible, where the delay in incarcerating the defendant has been unreasonable; and where judgment has been pronounced upon an arrangement that the sentence of imprisonment was only a formality and that it would probably not. be executed at all. In such a case, if the defendant is permitted to go at large until long afterwards, habeas corpus may be invoked. (In re Krig, 105 Kan. 695, 185 Pac. 1044.) But here there was no considerable delay; the postponement of the petitioner’s imprisonment was caused by the abortive parole, the abortive appeal, the stay of proceedings, and the application to the district judge for a parole. For all of these maneuvers to avoid or delay his incarceration the petitioner was responsible; and after all these proceedings were ended the time thereby consumed was only from January 9 to March 13, a little over two months. Even the old rule for which the petitioner contends would not cover this situation.
The court is of opinion that the petitioner’s case comes within the general principle laid down in The State, ex rel., v. Piper, 103 Kan. 794, 176 Pac. 626, in which it was held that where a delay in executing a sentence of imprisonment, although unusual, was not unreasonable under the circumstances, the judgment of imprisonment was not satisfied until it had been fully executed, and that the essential portion of the sentence in a criminal case is the punishment, including the kind of punishment and the amount thereof, and that the “expiration of time without imprisonment is in no sense an execution of the sentence.”
(See, also, Ex Parte Eldridge, 3 Okla. Crim. Rep. 499, 106 Pac. 980, 27 L. R. A., n. s., 625; 16 C. J. 1335, 1336.)
The petitioner’s discharge is denied, and he is remanded to the custody of the sheriff to serve the unexecuted portion of the ninety days’ term of imprisonment which was imposed on him by the court of Topeka.
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The opinion of the court was delivered by
Mason, J.:
In 1891, Fillmore Purl through a will acquired a life estate, with remainder to his children, in a Kansas farm then occupied by himself and family, consisting of a wife and (for a part of the time) their children, this occupancy continuing until 1906, after which the place was rented. On July 15, 1918, he died, and the next day his widow, Kate Purl, brought this action against their children, claiming full title to the farm under tax deeds issued to her in 1899, based upon the taxes of 1895, 1896, and 1897. She was denied relief, and appeals.
Findings were made to this effect: When Kate Purl came to Kansas she brought with her two mares which were taken upon the farm. From these horses, colts and mules were raised, which were kept there. She also acquired other property from the products of the farm. From 1891 to 1899 she returned for taxation as her property, horses, mules, cows, hogs and chickens which were kept and cared for there, her husband returning no personal property for taxation during these years. He was away from home quité a good deal during the time, and when he was at home he and his wife were in joint charge and control of the farm; when he was away she exercised complete control. She shared with him in the proceeds derived from the farm. She looked after the payment of taxes upon" the farm for 1891 and subsequent years, and paid them out of the proceeds derived from the farm, taking receipts for the years 1891, 1893, and 1894 in her own name. The land was sold for taxes in September, 1893, and she redeemed it from this sale in her own name two months later. In 1896 the land was sold for the taxes of 1895, and the taxes for 1896 and 1897 were indorsed on the certificates. In February, 1899, she took an assignment of the certificates, and upon these, deeds were issued to her in September, 1899. The subsequent taxes were paid in her name. The money which went to purchase the tax-sale certificates was derived from the property of Fillmore Purl and Kate Purl, and from their labor in connection with the farm, and personal property.
One contention made by the defendants is that a wife cannot under any circumstances acquire a tax title to her husband’s property. In Broquet v. Warner, 43 Kan. 48, 22 Pac. 1004, a tax title taken by a husband upon his wife’s land was upheld, stress being laid upon the fact that neither had been in possession. On a subsequent appeal in the same case it was said that there was sufficient evidence to show actual possession of the land by the husband at the date of the tax sale, but that the earlier decision would be overruled and the deed held void on the ground that, irrespective of possession, a husband cannot obtain a valid tax title to his wife’s property. (Warner v. Broquet, 54 Kan. 649, 39 Pac. 228.) Still later the whole question was reexamined in a case where neither spouse had ever resided in Kansas, the court concluding that the mere relation of husband and wife does not prevent the acquisition by one of them of a tax title to the land of the other, and overruling the decision in the 54th Kansas so far as it overruled that in the 43d. (Nagle v. Tieperman, 74 Kan. 32, 45, 53, 85 Pac. 941, 88 Pac. 969.) In Croner v. Keefer, 103 Kan. 204, 173 Pac. 282, it was held that the husband under the facts there presented was disabled to acquire a tax title to land standing in the name of his wife. He had owned the property himself until it had been sold for taxes and bid in by the county, and he had executed a deed to his wife after such sale. This obviously disqualified him to take an assignment of the certificate from the county, and subsequent unpaid taxes were annually added to the lien arising from that sale, and there could be no new sale until a redemption therefrom. (Gen. Stat. 1915, § 11426.) To the decision on this ground the court added a citation of Warner v. Broquel, 54 Kan. 649, 39 Pac. 228, with a statement of its effect. The doctrine of that case was not necessary to the decision, and was not reestablished by it. In Peek v. Ayres, 79 Kan. 457, 100 Pac. 283, the two Warner-Broquet cases were cited without reference being made to Nagle v. Tieperman, and both were in a sense in point, because the tax deed there taken by the husband to his wife’s land was bad under either rule, he having shared the possession with her and enjoyed the rents and profits. In the present case likewise the question whether a disability of one spouse to acquire a tax title to land of the other follows from the mere fact of their relationship is not necessarily involved. Under the findings, the attempt of Kate Purl to buy the tax-sale certificates amounted to a redemption of the property because when the taxes accrued she was living upon the farm with her husband, operating it jointly with him, using it in part for her own individual benefit, deriving a revenue from it, and paying for the certificates, in part at least, with money obtained therefrom. The suggestion is made that if the farm had been rented the tenant would have been at liberty to buy it at a tax sale, and that inasmuch as Fillmore Purl in pursuance of his legal obligation furnished it to his wife as a place of residence her situation is not essentially different. We do not think the analogy close. The occupancy was that of the family, of the husband and wife jointly, and notwithstanding the legal right of each to transact business separately, we hold that they were equally incompetent to divest the title of the remaindermen by the acquisition of a tax deed.
2. The findings of fact are not directly challenged in the plaintiff’s brief, but complaint is made of tbe admission of the testimony of one witness on the ground that it related to a privileged communication and was otherwise incompetent. Assuming that this evidence should have been excluded, the judgment should nevertheless be affirmed unless without it the findings would lack support, for the case was tried without a jury, and, in the absence of an affirmative showing to the contrary, it must be presumed that the court was influenced only by competent evidence. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.) Leaving out of account the testimony of the witness referred to, and bearing in mind that the court obviously discredited certain statements of the plaintiff, we regard the findings as sufficiently sustained. The plaintiff testified that she “carried the pocket book” all the time and had stock on the farm; that she kept the money for which things were sold on the farm; and that her husband didn’t run the farm half the time — that he was away from it frequently. Any of the specific findings concerning which there was no direct evidence related to conclusions fairly inferable from the circumstances shown. For instance, no witness testified that the money paid for the tax certificates was derived from the property of Fillmore and Kate Purl and from their labor in connection with the farm and personal property. But this was a legitimate inference from the manner in which it was shown the business had been conducted. Account must be taken of the difficulty in establishing such matters — involving the tracing of family expenditures — by positive testimony, a recognition of which difficulty has doubtless fostered the view that one spouse should under all conditions be barred from acquiring a tax title to the other’s property.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
T. W. Gardner, administrator of the estate of E. M. Trout, deceased, appeals from a judgment approving the final report of L. L. Thrall, surviving partner of E.'M. Trout.
In October, 1901, L. L. Thrall and E. M. Trout purchased a stock of merchandise for $3,428.60. To make the purchase Thrall contributed $814.30, and Trout contributed $2,614.30. They then engaged in business as equal partners and continued therein until E. M- Trout died on August 29, 1916. Lillie W. Trout was appointed administratrix of the estate of E. M. Trout. She made an inventory and appraisement of the stock of merchandise of Thrall & Trout and filed the same in the probate court in Woodson county. The stock of goods was appraised by the administratrix at $6,685.30. L. L. Thrall as surviving partner undertook the management of the partnership affairs and gave bond as required by law. The appraisement of the stock of goods made by the administratrix was, with the approval of the probate court adopted by L. L. Thrall. That court on October 11, 1916, ordered Thrall to continue the business and sell at retail and purchase and pay for such new goods as he should think proper until the stock of goods could be sold in bulk to the best advantage. In October, 1917, under order of the probate court, L. L. Thrall sold the remainder of the stock of goods at private sale, receiving for fixtures 50 per cent of the cost price, for groceries 90 per cent of the cost price and for all other goods 75 per cent of the cost price, or a total of $3,466.63. In November, 1916, under order of the probate court he sold a number of uncollected accounts for $21.00. Lillie W. Trout died and T. W. Gardner was appointed administrator of the estate of E. M. Trout. L. L. Thrall filed partial and final reports which were approved, and from the order of the probate court approving his final report T. W. Gardner as administrator appealed to the district court, where the final report of L. L. Thrall was again approved and confirmed, and from that judgment this appeal was taken.
1. The first complaint, one that underlies several others, is that “the district court erred in approving and confirming the orders of the probate court . . . permitting the surviving partner to conduct the business of the partnership, and . . . purchase new stock of merchandise.” This matter is disposed of by Implement Co. v. Keyser, 99 Kan. 8, 161 Pac. 592, where this court said:
“A sale of the goods and assets of the partnership may be made in bulk or in the usual course of trade, whichever may be the most advantageous to the interested parties, and if sold at retail some goods may be added to the stock in order to make it more salable and to facilitate the advantageous disposition of the whole; and when this is done in good faith the estate will be liable for the goods purchased as well as the expenses of winding up the business.” (Syl. ¶ 4.)
2. Another complaint is that “the district court erred in approving and confirming. . . . the order permitting the surviving partner to sell at private sale . . . the stock in bulk to P. C. Jones without making and submitting an appraisement and inventory of the stock to be sold.” It probably would have been proper to have made a new inventory and appraisement at the time the sale was made, but the inventory and appraisement which had been made showed the value of the stock of goods to have been $6,685.30. New stock had been purchased and parts of old and of the new stock had been sold. There were practical difficulties in ascertaining what were new goods and what were old goods and in ascertaining the value of each; besides, an appraisement and inventory at the time the goods were sold was not required by law. A careful study of the inventory and appraisement, and of the reports filed by L. L. Thrall, reveals that the estate suffered no damage by reason of the manner in which the estate was handled. The stock of goods was appraised at $6,685.30, the partnership ac counts were appraised at $994.36, and new goods were bought amounting to $4,577.10, making a total of $12,256.76. Thrall received from the sale of goods and from accounts $9,347.89, and from the final sale of the stock of goods, $3,466.63, making a total of $12,814.52, or $557.76 more than the amount paid for new goods and the original appraisement of the stock and accounts. There was paid out for expenses and rent, outside of attorney’s fees and compensation to L. L. Thrall, $1,292.75. This amount added to $4,577.10, the amount paid for new goods, and the sum of both, $5,869.85, deducted from the total amount received from the sale of goods and from accounts, $12,814.52, leaves $6,944.67 — more than the. appraised value of the stock of goods. Thus it appears that the partnership business sustained no loss by reason of the manner in which it was conducted by L. L. Thrall. If there was no loss, Gardner as administrator has no cause for complaint.
3. Gardner complains that “the district court erred in approving and confirming the orders of the probate court . . . permitting the surviving partner to sell the accounts due the partnership.” The accounts were probably practically worthless, and if so, it did not materially matter whether the accounts were turned into the probate court uncollected, or whether they were sold for such a sum as could be received therefor. It does not appear that the partnership business sustained any loss by reason of the sale of these accounts, and although their sale may have been irregular, the judgment of the district court approving the order permitting the sale of the accounts will not be reversed.
4. It is contended that the court erred in refusing to require L. L. Thrall to account for all profits on all the old goods sold at retail and to account for all profits on the new goods purchased, and that the court erred “in refusing'to require the surviving partner to set out and charge himself with all the property received by him of said partnership estate, in his report, and show the manner of the disposition of the same.” In response to these contentions it may be said that all profits seem to have been turned into the assets of the estate. It is not necessary to say anything further than to call attention to the discussion concerning the manner in which the business- was conducted under the orders of the probate court and to the results thereof. That discussion shows that these contentions should not he sustained.
5. Another complaint is that the district court erred in allowing compensation to the surviving partner in the. sum of $1,560, and in allowing attorney’s fees in the sum of $200, and in allowing $992.75 as expenses while conducting the business. Gardner makes an extended argument and cites many authorities to show that it is the duty of a surviving partner to wind up the affairs of the partnership business without compensation. This we think is not in accord with the spirit of our statutes concerning the administration of estates of deceased persons. A surviving partner in closing out the partnership business acts in the character of the administrator of the partnership estate. The partnership ceased to exist on the death of E. M. Trout, and the services thereafter rendered by L. L. Thrall were rendered under the statute, which, we think, contemplates that the surviving partner shall be paid for his services, and that he shall likewise be allowed his expenses and attorney’s fees. L. L. Thrall conducted the business under the orders of the probate court, gave his personal attention thereto, and he should be paid therefor. He should also be allowed his attorney’s fees and the expenses incurred in conducting the business. The amount of compensation allowed him and the attorney’s fees appear to be reasonable, and the expenses allowed appear to have been properly incurred.
6. Another complaint is that “the district court erred in final distribution of said partnership, by refusing to return to each partner the amount of the capital contributed by each, before making general division of the profits.” The principle contended for is that before there can be any distribution of a partnership estate, the amount contributed by each of the partners at the time he engaged in the business must be refunded to him or to his personal representative.
There was evidence which tended to show that L. L. Thrall and E. M. Trout engaged in the business as equal partners. In the journal entry of judgment there appears what seems to be a finding of fact:
“That L. L. Thrall and E. M. Trout were at the death of said E. M. Trout, and during the entire term of the partnership of said Thrall & Trout, had been equal partners in said business and estate and that Lillie W. Trout was duly appointed by this Court administratrix of the estate of E. M. Trout.”
The evidence warranted that finding. Under it L. L. Thrall and E. M. Trout were equal partners in the entire business, capital as well as profits. There was no law to prevent them from engaging in a partnership on such terms, although one contributed more to the purchase of the stock of goods than the other. That finding of fact concludes the argument on this question, and determines it against Gardner.
Some other questions are presented; they have been examined, but they are not sufficient to warrant a reversal of the judgment, and are not deemed of sufficient importance to warrant further discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
This appeal from a judgment in plaintiff’s favor upon a beneficiary certificate issued by the defendant to Sylvester T. Brown, who was then the husband of the plaintiff, is in many respects a companion case to the preceding one (Glasgow v. Woodmen of the World, ante, p. 354), and they were submitted together.
Substantially the same defense was made; the answer alleging that the insured made certain representations and warranties concerning his bodily health and whether he had been attended by physicians within the period of five years preceding the date of his application, and that the answers he returned to these questions were false. As in the preceding case, the court adopted an erroneous theory with respect to the provisions of chapter 226 of the Laws of 1907, General Statutes of 1915, sections 5290, 5291. The law as declared in the first and second paragraphs of the syllabus of the preceding case is controlling, and there remains only the question whether the findings of the jury with respect to the representations of the insured are contráry to the evidence and the law.
In his application the insured was asked the following questions, the answers to which are claimed to be false:
“Have you now or ever had any disease of the following-named organs, or any of the following-named diseases or symptoms: palpitation, shortness of breath, dropsy or dropsical swellings, fainting spells, enlarged veins, or any other symptoms of disease of the heart or blood vessels? Ans. No.
“Have you consulted or been attended by a physician for any disease or injury during the past five years? Ans. No.
“Have you ever had any disease or injury not referred to above? Ans. No.”
The medical examiner for the defendant testified that he read to the insured all of the questions in the application and wrote down the answers exáetly as the insured gave them; that the foregoing questions were asked of him, and to each of them he answered “No.” The contention is that the answer to the first question was false, in that the insured had for a number of years been afflicted with enlarged veins or varicose veins of the leg. Dr. J. A. Dillon testified in substance: that he had been engaged in the practice for 25 years; within the period stated he treated Sylvester T. Brown professionally; Brown had a sudden fainting spell and was thought to be ■dying; the witness diagnosed the disease as pulmonary embolism; the patient afterwards developed phlebitis or inflammation of the leg and was laid up for some time; the witness was called in consultation two or three times with Doctor Koons, the family physician of Brown; the patient had the appearance of being a very sick man, was emaciated and pallid, •and walked with very great difficulty.
Doctor Koons testified that he was well acquainted with Sylvester T. Brown; that five or six years before the trial he was •called in haste to Brown’s house to treat him professionally; that Brown had a stroke of the heart of some kind and had fallen; that when the witness reached the house he found him breathing with difficulty; that upon returning in the afternoon, or possibly the next day, Brown’s condition was so serious that witness called Doctor Dillon in consultation, and they diagnosed the case as an inflammation and infection of the femoral vein; they found the patient suffering from phlebitis; that the witness continued to treat Brown off and on for several months, and during that time he improved, but the witness feared a return of the trouble and advised him against taking long walks or violent exercise; that the disease called phlebitis affects the circulatory system and causes the blood to clot where an inflammation starts and afterwards to adhere to the walls of the veins, which will sometimes obstruct the blood vessels, detaining the rate of circulation and causing a white inflammatory swelling; that there is a connection between this condition and embolism, which is' likely to be produced by femoral phlebitis, and that it had this effect on Mr. Brown.
Doctor Michener, a physician and surgeon for 35 years, well acquainted with Sylvester T. Brown in his lifetime, testified that he treated him professionally in July, August, and September, 1914, and found him afflicted with a large varicose ulcer in the right leg, about as large as the back of his hand and a half inch in depth; that from the size and condition of the ulcer he thought it had been there for a year or more; that he put on a dressing and left it on several weeks, then split it and took it off, and that the ulcer was healing; that he recommended that Brown wear an elastic stocking in order to support the veins; and that after the veins became dilated as they were in this case, they seldom regain their tenacity, and need some artificial support. He advised the patient that it would be necessary to wear this stocking continuously, and that in case he failed to do so the veins would again become dilated, filled with blood, and become stagnant, and there would be a recurring ulcer. In his opinion and judgment, the ulcers on Brown’s leg were incurable. He further testified that Brown and his wife came to Wichita about six months afterward, and that at that time the leg was in good condition; and that he further impressed upon Brown at that time the necessity of continuously wearing the rubber stocking because the veins would again become enlarged and the trouble return.
Doctor Cloyd, sovereign physician of the defendant, testified that the application for the beneficiary policy could not have been accepted without his approval, and would not have been approved if the application had disclosed that the applicant had suffered from enlarged veins in the leg, commonly called varicose veins, to the extent that it was necessary to have treatment by a physician.
The proprietor of a printing plant where the deceased at one time was employed, testified that he had occasion to notice the physical appearance of Brown, and that during part of two years he appeared to have a great deal of trouble with his leg, and every few weeks was laid 'off from work for two or three days at a time by reason of it; that he knew of Brqwn going to Wichita to consult a doctor; and that at times Brown had a limp when he walked.
In rebuttal, plaintiff offered the deposition of a witness who testified that he was instrumental in getting Brown to join the order and was present when he was examined by the local Camp physician, and that not more than ten minutes was occupied in the examination. In answer to a direct question he said that Doctor Smolt, under the questions in the blank application entitled “Personal History,” did not explain to Brown the meaning of the terms used, and to the best of his knowledge he did not hear Brown asked any questions concerning varicose veins, and did not hear any question about enlarged veins; that he heard the question asked, “Have you consulted or been attended by a physician for any disease or injury during the past five years?” and that Brown named Doctor Michener of Wichita.
•Sylvester T. Brown’s death occurred on January 18, 1918, after an operation at a hospital in Newton for the relief of a ruptured appendix, and the physician who performed the operation and who filled out the death certificate stated that embolism was the cause of the death. He was a witness, and testified that he was prompted to make this statement on account of the suddenness of the death and the character of the attack. He' also testified that' when the appendix was removed there was found a congested, inflamed, gangrenous area near the end, and a perforation; that he did not observe any evidence of the existence of a blood clot causing the death; and that the operation might have contributed.
The jury returned the following special findings:
“Q. 1. Did Sylvester T. Brown sign an application through Hazel-wood Camp No. 15, for membership in defendant society and for participation in its beneficiary fund, in which he was asked this question: ‘Have you now or ever had any disease of the following-named organs or any of the following-named diseases or symptoms: Palpitation, shortness of breath, dropsy or dropsical swelling, fainting spells, enlarged veins or any other symptoms of disease of the heart or blood vessels? Answer: No.
“Q. 3. At the time Sylvester T. Brown signed the application for membership, did said application have this question and answer: ‘Have you consulted or been attended by a physician for any disease or injury during the past five years? Answer: No.’ Answer: Yes.
“Q. 4. Did Sylvester T. Brown, prior to July 25, 1914, and within five years before January 3, 1916, consult, or had he been attended by Dr. C. C. Koons of Larned, Kansas, for phlebitis of the right femoral vein? Answer: Yes.
“Q. 5. Did Sylvester T. Brown consult or was he attended by Dr. J. A. Dillon of Larned, Kansas, prior to July, 1914, and within five years prior to January 3, 1916, for phlebitis of the right femoral vein, or any other disease or ailment? Answer: Yes.
“Q. 6. Did Sylvester T. Brown consult or-was he attended by Dr. H. Michener, during July, August, and September, 1914, for ulcers of the right leg and enlarged veins? Answer: Yes.
“Q. 7. Did Sylvester T. Brown answer the question in the application, ‘Have you consulted or been treated by a physician for any disease or injury during the past five years,’ by saying, ‘Dr. Michener.’ Answer: Yes.
“Q. 8. Did Sylvester T. Brown answer the question asked him by Dr. A. E. Smolt in his application for benefit certificate in good faith and without intentional evasion or suppression of matters inquired about by said questions? Answer: Yes.
“Q. 9. Was the death of Sylvester T. Brown caused by a diseased appendix and the operation to remove the same? Answer: Yes.
“Q. 10. Was the cause of Sylvester T. Brown’s death embolism? Answer: No.”
Upon the return of the verdict and special findings, the defendant moved to set aside the answers to special questions 1, 7, 8, 9 and 10, and for judgment for defendant on the findings. The motion to set aside the findings was overruled except as to finding No. 10; that was set aside, obviously, because the findings, in the opinion of the court, showed that the cause of Brown’s death was embolism. It is clear, in our opinion, that several of the other findings should have been set aside. In finding No. 1 the jury say that Brown did not file an application for the insurance “in which he was asked” the question, “Have you now or ever had any disease of the following named,” etc. We think the finding is contrary to the evidence. In support of the finding the plaintiff contends that it is correct because there was no evidence to show that the insured was orally asked the question. If the answer of the jury was based upon this technicality, it was simply an evasion of the question. The application, with questions and answers, was in writing, and the question submitted to the jury referred to the written application. The testimony of the witness Lyle, who claimed to have been present at the examination and that to the best of his knowledge he did not hear any question asked about varicose veins ’or enlarged veins, is negative in character and not sufficient to overcome the written application and the positive testimony of the physician who made the examination. Finding No. 7, in which the jury say that to the question, “Have you consulted or been treated by a physician for any disease or injury during the past five years,” Brown answered as follows: “Dr. Michener,” is contrary to the evidence, and should have been set aside. The testimony of the witness Lyle, being in' the form of a deposition, this court is as qualified to pass upon its weight as the trial court and, in our opinion, it is not sufficient to overcome the written application. Finding No. 8, with respect to the good faith of the insured in answering the questions, is not, in our opinion, sustained by the evidence.
Finding No. 3, that the insured signed an application for membership in which he answered that he had not consulted or been attended by any physician for any disease or injury during the past five years, and findings Nos. 4, 5 and 6, that he had within that time consulted and been attended by three physicians for phlebitis of the right femoral vein, and the statement in the written application that he had never had any disease such as enlarged or varicose veins, established the falsity of the representations and warranties upon matters which were material, and it follows that the false answers of the insured to questions of this character annul the certificate.
Reversed and remanded, with directions to enter judgment, for the defendant.
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The opinion of the court was delivered by
Porter, J.:
These cases are an aftermath of the case of The State of Kansas v. Don Van Wormer, who was convicted in the district court of Hamilton county of murder in the first degree and appealed from the judgment. One of the signers on his appeal bond was Tom Brown, who resides in Ford county. Upon the affirmance of the judgment (The State v. Van Wormer, 103 Kan. 309, 173 Pac. 1076, 180 Pac. 450), Van Wormer disappeared and has ever since been a fugitive from justice. His appeal bond was declared forfeited, and suit was brought in the district court of Hamilton county to recover from the sureties. In that action an order of attachment issued to the defendant as sheriff of Ford county; he levied the same upon a quarter section of land and certain personal property in Ford county, and on October 1, 1918, duly returned the order to the district court of Hamilton county. On October 23, 1918, Tom Brown brought this action to enjoin the defendant, from proceeding with the attachment, alleging that the plaintiff is the head of a family, that the land levied upon constitutes his homestead and is exempt, and that the personal property levied upon consists of farming implements used by him in his farming and is exempt.
A demurrer to the petition on the ground that the district court of Ford county had no jurisdiction of the subject of the action was overruled, the court holding that it had jurisdiction on the sole ground that the sheriff had exceeded the authority given him by the writ in levying the attachment on exempt property; the court also held that it could not exercise jurisdiction to set aside the attachment on any other grounds. The case was tried on an agreed statement of facts, and the court found that all the property attached is exempt, and for that reason discharged the attachment. The defendant appeals.
The statute forbids the taking by attachment, execution or other process, of property which is exempt to the head of a family, — and the writ of attachment issued by the district court of Hamilton county in express terms directed the sheriff of Ford county to levy upon the property of Tom Brown that was not exempt from execution. But where a defendant in an action contends that property which the sheriff has levied upon by attachment is exempt, and a controversy arises over that question, it must be determined by some court. The only court that had jurisdiction to discharge the attachment in this case or to entertain a suit or motion by a party to the action attacking the validity of any proceedings under the attachment, was the district court of Hamilton county, where the action is pending in which the attachment issued. The code of civil procedure, section 209, declares that:
“From the time of the issuing of the order of attachment, the court shall he deemed to have acquired jurisdiction and to have control of all subsequent proceedings under the attachment.” (Gen. Stat. 1915, § 7101.)
Any other rule would manifestly tend to confusion, expense and uncertainty in the litigation.
It is conceded that the attached property belongs to Tom Brown. A different rule would obtain if the title to real estate were involved in the attachment (because the district court of the county where the land is situated has exclusive jurisdiction to determine questions of title to real property), or in a case where one not a party to the action in which an attachment issues from one county claims ownership of personal property attached in another county. But Tom Brown, who brings this action in Ford county, is the defendant in the action pending in Hamilton county, and no question of title arises or can arise. He owns the attached property, but claims that it is exempt, which raises an issue affecting the validity of the attachment proceedings, to be determined as to him by the court from which the attachment issued.
The second case is a replevin action by Ed Brown to recover certain personal property taken by the sheriff under the attachment as the property of Tom Brown. He recovered judgment in the district court of Ford county for the return of the' property, and the defendant appeals.
It was shown by the agreed statement of facts upon which the case was tried that Tom Brown and his brother, Ed, had been residents of Ford county for many years and were partners in farming and raising stock. They had accumulated a large amount of real and personal property which they owned and held as partners. A few days after Don Van Wormer became a fugitive from justice the brothers began negotiations for a settlement and division of their partnership property. The settlement was insisted upon by Ed Brown in order that his share of the partnership property might not become involved in the litigation which he anticipated would follow against his brother on Van Wormer’s bond. Both brothers knew of the flight of Van Wormer before they began negotiations for the settlement. It was found in the course of the settlement that the partnership was indebted to various persons in the sum of $23,420; the value of all the partnership property was fixed by agreement at $51,977, and the net value at $28,557. It was agreed that Tom should take at a valuation of $6,975 the quarter section of land he now claims as his homestead, and a half interest therein was conveyed to him by a deed executed by Ed Brown, dated July 16 and recorded September 13, 1918, the stated consideration being “one dollar and exchange of property.”
Ed Brown assumed the partnership indebtedness and for that reason was given, in the settlement, property valued at $37,968. The net amount which each was to receive after payment of debts was $14,278. Allowing for the real estate and personal property taken by Tom Brown, there was a balance due him from his brother, amounting to $4,934, which his brother paid by a bank check.
The defendant demurred to the petition on the ground that the Ford county district court had no jurisdiction, and that the district court of Hamilton county was the only court that could determine a controversy which affected the attachment proceedings. The demurrer was overruled, and the case proceeded to trial upon an.agreed statement of the facts.
The defendant contended that he was entitled to a judgment declaring that the property attached was the property of Tom Brown because the sum of $4,934 was paid by Ed Brown to his brother for property sold in fraud of his brother’s creditors, and that the plaintiff knowingly participated in the fraud. The trial court held otherwise, and rendered judgment in favor of Ed Brown for the return of the property.
The trial court was correct in holding it had jurisdiction to try the replevin action for the reason that the plaintiff was not a party to the suit in Hamilton county. It has often been held that replevin need not be brought in the court from which the process issued under which the property was seized. (Ramsden v. Wilson, 49 Ia. 211; Seaton v. Higgins, 50 Ia. 305; Dayo v. Provinski, 90 Mich. 351.) In Carpenter v. Innes, 16 Colo. 165, the court said:
“The rule has been established that replevin will lie’ in any state court of competent jurisdiction in favor of one who is the owner of goods which had been seized by the sheriff, or any other officer, upon a writ against a third person, where the suit in which the writ issued has been brought in any other of the courts of the state.” (p. 166.)
It seems that the only exception to the rule is that where the . process issues from a federal court an action of replevin cannot be maintained in a state court to recover the property from the hands of a United States marshal. (Covell v. Heyman, 111 U. S. 176; Note, 7 A. & E. Ann. Cas. 909.)
There remains the question whether the court erred in rendering judgment in favor of Ed Brown. There is no conflict or dispute over the facts, since they are agreed to. The question is merely one of law. What are the controlling facts ? The brothers, with full knowledge of Van Wormer’s flight, and of Tom Brown’s liability on the appeal bond, anticipating that he would be sued and judgment rendered against him, entered into an arrangement by which all of Tom Brown’s interest in the partnership property, which so far as the record discloses was all the property he possessed, was transferred beyond the reach of his creditors.
Ed Brown had a perfect right to insist upon a dissolution of the partnership and a division of the property in order to avoid anticipated complications affecting his interests as a partner. He had the right to assume the indebtedness of the partnership and to take an additional share of the property in order to compensate him for so doing. When a settlement to that extent was made, the partnership property divided and the debts provided for, his rights were fully protected.' But he went much further than merely to protect his own rights. He took a conveyance of all the interest of Tom Brown in the partnership property, which they believed to be subject to the claims of his creditors, and assuming for the moment that when the question is tried in the proper court, the lands claimed by Tom Brown as his homestead and the other personal property will be held exempt, there still remains the property which the plaintiff purchased from his brother and for which he paid the sum of $4,934. This part.of the transaction, in our opinion, was in fraud of Tom Brown’s creditors with the plaintiff’s full knowledge and participation.
In the written opinion by the trial court it was stated that, so far as the agreed statement of facts show, Tom Brown may be the owner of much more property than that involved in this action and which is more than sufficient to pay any judgment which the state may recover. It was said:
“The statement of facts deals simply with the partnership property.. There is no statement that this is all the property owned by the debtor. If he owned other property not exempt sufficient to pay his debts, this transfer would not have the effect of hindering, delaying or defrauding his creditors.”
When Tom Brown signed the appeal bond- he was required by the statute to testify under oath as to his qualifications as a surety; the presumption is that he made a full disclosure. Aside from the fact that the statute authorizes an attachment upon a showing that the defendant is about to remove, or convert, or has assigned or removed or disposed of “his property or a part thereof with the intent to defraud, hinder or delay his creditors” (Gen. Stat. 1915, § 7082), we think the absence of a showing in the statement of facts as to whether Tom Brown owned other property subject to execution or attachment furnished no substantial basis upon which to rest the judgment. The trial court was not irrevocably bound by the agreed statement; if the matter was believed to be important the court should have inquired and might have compelled the parties to agree upon the fact with reference to that matter. Doubtless an inquiry by the court would have disclosed the fact. We think the only reasonable conclusion from the facts is that the transaction was in fraud of creditors and that the plaintiff, Ed Brown, participated in the fraud.
In the Tom Brown case, the district court had no jurisdiction, and the judgment will be reversed and the cause remanded with directions to dismiss the action.
In the case of Ed Brown the judgment will be reversed and the cause remanded with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages from the defendant for failing to transmit money by telegram. Judgment was rendered for the plaintiff for actual and punitive damages, and the defendant appeals.
On October 27, 1918, the plaintiff was a soldier at Camp Dodge, Iowa. He needed money and telegraphed to his father at Tonganoxie, Kan., for ten dollars. The father immediately turned over to the telegraph company fifteen dollars and paid for wiring instructions to the company at Camp Dodge to pay to the plaintiff that amount. The money was not received by the plaintiff. He recovered judgment for $18.80, actual damages, and $122.75, punitive da'mages. At the time the money was placed in the hands of the defendant at Tonganoxie all its property was under the control of the United States government under a joint resolution passed by the congress of the United States on July 16, 1918, and the proclamation of the president issued thereunder on July 22, 1918, and the order of the postmaster-general of the United States dated August 1, 1918. Two questions are presented by the defendant, one that by reason of its property being under the control of the government there existed no liability on the part of the defendant, and the other, that the transmission of the money by telegram was an interstate transaction and, therefore, punitive damages could not be recovered. It is necessary to discuss only the former proposition, and that has been determined against the plaintiff by a well considered line of decisions recently rendered, a number of which have not been officially published.
The leading case is Dakota Cent. Tel. Co. v. South Dakota, 250 U. S. 163, where it was held that state' control over intrastate telephone rates ceased with the exercise by the president of his authority under the joint resolution of July 16, 1918. (Part 1, 40 U. S. Stat. at Large, Ch. 154.) That rule has been followed in the regulation of intrastate railroad freight rates (Northern Pac. Ry. Co. v. North Dakota, 250 U. S. 135) ; in actions against a telephone company for injuries sustained by an employee while working for the company (Mitchell v. Cumberland Telephone & Telegraph Co., 221 S.W.547 [Ky.]); and in actions for damages caused by delay in the transmission of telegrams. (Canidate v. Western Union Tel. Co., 85 So. 10 [Ala.] ; Western Union Telegraph Co. v. Glover, 86 So. 154 [Ala.] ; Western Union Telegraph Co. v. Davis, 218 S. W. 833 [Ark.] ; Foster v. Western Union Telegraph Co., 219 S. W. 107 [Mo.] ; Western Union Telegraph Co. v. Conditt, 223 S. W. 234 [Tex.] ; Western Union Telegraph Co. v. Wallace, — S. W. — [Tex., Feb. 10, 1920, not yet reported]; White v. United States, 263 Fed. 17.) Under the decisions of the United States supreme court and the state supreme courts that have followed those decisions, this court must hold that the defendant is not liable for failing to transmit the money to the plaintiff. But the plaintiff argues that all the stationery and blanks used in the transaction out of which this action arose were the blanks of the Western Union Telegraph Company. That may be true, but the court is compelled to take judicial notice of the fact that the company was not then operating its telegraph lines, and evidence could not be properly received to disprove that fact.
It necessarily followis that the judgment must be reversed, and that judgment must be rendered for the defendant. It is so ordered.
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The opinion of the court was delivered by
Burch, J.:
The appeal is taken from an order of the district court disposing of custody of a child.
Caroline Denton, the child of Frank W. and Mary B. Den-ton, was born in March, 1910. In January, 1919, Mary B. Den-ton died, and the child was taken by Mary B. Denton’s mother, Isabelle James. Afterwards Frank W. Denton instituted a proceeding in habeas corpus to obtain custody of the child, which resulted in the following order made in December, 1919:
“That the custody of the said child, Caroline Denton, at this time, be given to the defendant and respondent, Isabelle James, from this date until the first day of June, 1920.
“That on June 1, 1920, Mrs. Sallie Denton, the mother of the plaintiff, Frank W. Denton, be entitled to .the custody of the said child until September 1, 1920, and that on September 1, 1920, the said child shall be returned to the custody of the said defendant and respondent, who shall have such custody of said child until June 1, 1921, at which date the custody of said child shall be given to Mrs. Sallie Denton until the first day of September, 1921.
“It is further ordered that the disposition and custody of the said child, from year to year, for the months above set forth, be continued.
“It is further ordered that on each succeeding Saturday from this date, so long as this order may continue in force, and while the child is in the custody of Mrs. Isabelle James, and in the city of Wichita, Kan., the said child shall be delivered by said Isabelle James into the custody of the said Mrs. Sallie Denton, at the residence of Mrs. James, in the city of Wichita, Kan., when called for, who shall return the said child to the defendant and respondent, Isabelle James, by nine o’clock p. m. on each Saturday.
“It is further ordered, adjudged and decreed that between the first day of June and the first day of September of each year, when the care and custody is given to the said Sarah L. Denton, and while the child is in Wichita, Kan., the said defendant, Isabelle James, shall have permission to see said child and have her custody on Saturday of each week between the hours of 9:30 a. m. and 5 p. m.
“And it is further ordered that during the Christmas and Easter holidays, the said child shall spend one-half of her time with Mrs. Isabelle James, and one-half ^f her time with Mrs. Sallie Denton.
“It is further ordered that during the time that said Caroline Den-ton is with Mrs. Sallie Denton, the father of the said child, Frank W. Denton, may visit the said child and enjoy her society, and during the said time the child is with Mrs. Sallie Denton, the said father may have said child in his possession, but under the control of Mrs. Sallie Denton, and shall not remove her from the state of Kansas, returning the child to Mrs. Sallie Denton in due time and season, so that the child may be delivered to her to be delivered to Mrs. Isabelle James, as herein provided.”
The parties acquiesced in the order, and custody of the child was shared according to its terms. On June 18, 1920, while the child was in lawful custody of Sallie Denton by virtue of the order, she adopted it by formal proceedings in the probate court. On September 1, 1920, Sallie Denton, exercising the right of parent by adoption, did not return the child to Isabelle James. Isabelle James applied to the district court for an order directing the sheriff to seize the child and return it to her. The application was made under the title of the habeas corpus proceeding. Sally Denton intervened, and issues, were framed between herself and Isabelle James covering the whole subject of welfare of the child and right to its custody. At the conclusion of the hearing the court summed up the case as follows:
“I am of the opinion still that for the best interests of this child it should go to Mrs. James for nine mofiths, for the best interests of the child, and because it has been educated in the same line; and that for the other three months it should go to Mrs. Denton. But the only question now is as to the effect of these proceedings in the probate court. I would not consider that either of these ladies were improper, but I consider that under all conditions the best interests of the child would be subserved by giving it to Mrs. James. If Mrs, James wasn’t in the case, Mrs. Denton would be an eminently proper person, and the child would be fortunate to be adopted by her. I am choosing under the circumstances what I think would be best for the child.
“By Mr. Wilson: Don’t you think Mrs. Denton could educate that child as well as Mrs. James?
“By the court: Yes.
“By Mr. Wilson: Then, why would it be—
“By the court: That is, if the child hadn’t been started in one line. The mother wanted the child educated in a certain way, and the father agreed to it, and that should be carried out. Of course, if the child had been given to Mrs. Denton early, and a certain line of education proceeded, — •
“(Further argument of counsel.)
“By the court: The adoption proceedings are legal, at least so far as making the child the heir of Mrs. Denton. . . . I will announce my decision as soon as I can reach it.”
The matters which the court seemed reticent about stating in plain terms were these: The child’s mother was a Eoman Catholic. The father agreed with the mother that the child should be reared in the mother’s religious faith. Isabelle James is a Eoman Catholic, and Sallie Denton is not. The formal judgment recited that it was for the best interest of the child the order made in the habeas corpus preceeding should be carried out, and that validity of the adoption proceeding could not be collaterally attacked.
If the probate court had jurisdiction to make the order of adoption, the propriety of the order cannot be questioned in this proceeding, and the child is the child of Sallie Denton. Isabelle James contends the probate court proceeding was void for lack of jurisdiction, because she was not required to appear, and was not notified or given opportunity to present her claim to custody of the child. The statute relating to adoption reads as follows:
“Any person may appear in the probate court of the county of his or her residence and offer to. adopt any minor child or children as his or her own. Thereupon the court shall investigate the matter, and shall require that the minor appear or«be brought before the court, and shall require that such of the minor’s parents as are living in the state, and the guardian (if any), appear also in court, without expense to the public; and if either or both parents of such minor are nonresidents of the state, there shall be filed an affidavit made by all such nonresident parents or guardian setting forth that they are parents of such minors, and that they consent to such adoption,by the applicant, and that such consent is free and voluntary; and if the probate court shall find that the minor and the living parents of such minor and the guardian (if any) consent freely and voluntarily to such adoption, the said court shall record its proceedings in the journal, declaring each such minor child to be the child and heir of such person so adopting such minor; and then and thereafter such person so adopting such minor shall be entitled to exercise any and all the rights of a parent, and be subject to all the liabilities of that relation. If the' probate court on investigation finds that the person offering to adopt such minor child is unfit, or financially unable, properly to ■ assume the relation of parent to such minor, such court shall refuse to permit such adoption to be made. If either parent is alleged to be dead, proof of death shall be made by affidavit. If the parents of such minor child shall have been divorced, the consent of the parent to whom custody of such child shall have been awarded shall be necessary to authorize an order of adoption, but the consent of the other parent, though desirable, shall not be necessary. . . .
“Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as children or heirs-at-law of the person thus adopting them.” (Gen. Stat. 1915, §§ 6362, 6363.)
The statute does not recognize notice at all. It requires appearance. Under circumstances not now material, certain appearances are dispensed with. In this instance presence of the following persons in court was necessary: Caroline Den-ton, the child; Frank W. Denton, the child’s father; the child’s guardian, if any; and Sallie Denton, the person offering to adopt. Did Caroline Denton have a guardian, other than her natural guardian, within the meaning of the statute, whose appearance was indispensable to her adoption?
The legislature has dealt with the subject of guardians as fully as it has dealt with the subject of adoption. The two statutes might well be read as one, under the' general title, “Welfare of Minor Children,” and the presumption is that when the word “guardian” was used in the adoption statute it meant the kind of guardian which had been the subject of legislative thought. There are three kinds of guardians, and no more: natural guardians, testamentary guardians, and probate guardians. The father and mother are natural guardians, and if either die or become incapable of acting, natural guardianship devolves on the other. One parent who survives the other may by will appoint a guardian for his child, and the appointee has the same power and performs the same duties regarding the person and estate of the child as a natural guardian. If no testamentary guardian has been appointed, or if living parents be disqualified to act as guardians, the probate court may appoint one (Gen. Stat. 1915, §§ 5041, 5042). Section 5049 of the statutes reads as follows: .
“Guardians of the persons of minors have the same power and control over them that parents would have, if living.”
Guardians of property belong to the same classes. Natural guardians are guardians of property provided by themselves. Probate guardians must be appointed for other property, and testamentary guardians for estates may be appointed in the same way as for persons. District courts have no power to appoint guardians, and supervision find control of the conduct of guardians is vested in the probate court. In this instance we are not concerned with property guardianship.
Turning to the adoption statute, it will be observed that nobody is required to appear at an adoption proceeding who is not required to consent to it, and the reason for appearance must be found in the reason for consent. It seems quite clear that the consent of parents is required because, with the adoption of their child by another, their parenthood comes to an end. The child becomes the child of the person adopting it. A guardian is one whom the law substitutes for parents. He stands in loco parentis, and is sometimes referred to as temporary parent. The equivalent of the parental status which a guardian enjoys by virtue of the express terms of the statute is terminated by adoption, and so he must appear and consent. A mere custodian of an infant bears no domestic relationship to the child, and it is a clear misnomer to speak of a court custodian as having any right or claim to custody of the child. He is merely a court agent, who executes the specific order of the court placing the child in his custody. The only right involved is the right of the child to repose in the designated custody until some court having lawful authority sees fit to make some other arrangement; and consent of a naked custodian, who may be displaced at any time, may be dispensed with. In the present instance it would be strange if the child could not enjoy some splendid opportunity to become the child and heir of another unless two court custodians gave their consent. Therefore, the legislature stopped with the appearance and consent of parents, and of the guardian if any, and the court is not authorized to add to the statutory requirements.
The adoption of Caroline Denton by Sallie Denton carried with it every feature of the domestic relation of parent and child except natural birth (Dreyer v. Schrick, 105 Kan. 495, 498, 185 Pac. 30), and Sallie Denton was entitled to custody of the child precisely as if she were a natural parent. Any court will say that the criterion of parental right to custody of a child is welfare of the child. The criterion, however, is not always judiciously applied. Sometimes it is declared that the rearing of children is a function which the state delegates to parents, and which it may resume at will, for its welfare, through welfare of the child. The rearing of children is not in fact a function delegated by the state to the citizen, any more than the begetting of children is a delegated state function, and the theory of government recognized by the declaration is responsible for absolutism in its most tyrannical form. The theory is expressly repudiated by the first two sections of the bill of rights of this state:
“1. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
“2. All political power is. inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit.” (Gen. Stat. 1915, §§ 105, 106.) -
Man has no higher right or interest or happiness than that for which the words family and home stand. Very often it is said, with a touch of derision, that a child is not a chattel, and a parent has no property in his child giving him right to custody — which is very true. The interest which a parent has in the nurture of his own offspring, and in nearness to them for that purpose, lies in a different plane from that occupied by property; it transcends property. On the child’s side, it has no higher welfare than to be reared by its parents. The state has no higher welfare than to have children reared by their parents, and free government is instituted for the protection and benefit of parenthood as one of the natural rights which the citizen possesses. Acting on these principles, this court holds that welfare of a child is best subserved by leaving it with , its natural guardian until it is demonstrated that the parent is unfit to discharge the duties which are correlative to his right. Then, and. not until then, does his right yield. The latest decision on the subject was made in March of this year, in the case of Crews v. Sheldon, 106 Kan. 438, 186 Pac. 498. Previous decisions are collated in the opinion.
It would be idle to debate the fitness of Sallie Denton to have custody of the child in controversy, as its adopted mother. The district court, the same judge presiding, has twice given her custody of the child for three months of the year, and the remarks of the court, in summing up the case, make its judgment respecting the matter clear. In the brief for Isabelle James it is said there was no evidence relating to the fitness of Sallie Denton to have custody of the child. She already had the judg ment of the district court on the subject, and she produced a recent order of another court having full jurisdiction over the matter of welfare of the child, making it her child. That was quite' sufficient until lack of qualification was fully proved by whoever questioned it.
Having all the rights of a natural parent, Sallie Denton has the right to control the education of the child, and the finding of the district court that it was for the best interest of the child Isabelle James should have custody during the school period of each year, was contrary to law. Section 7 of the bill of rights of this state reads as follows:
“The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. . . .” (Gen. Stat. 1915, § 111.)
In the case of Watson v. Jones, 80 U. S. 679, the supreme court of the United States enunciated a principle which is as applicable here as it was' in the controversy under decision:
“In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma.” (p. 728.)
Aside from limitations of the general character indicated the courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody religious views afford no ground for depriving a parent of custody who is otherwise qualified. The agreement of the child’s father and mother that the child should be reared in the Catholic faith was a commendable compromise between two natural guardians who, under the statute of this state, had equal authority. On the death of the mother, the father’s right to educate his child became paramount, and the agreement was merely persuasive upon him. That right is now vested in Sallie Denton. Authorities on the subject of parental right to control religious education of a child are collated in an article in 29 Harvard Law Review, at page 485 (March, 1916). Because of the settled views of this court concerning the nature of the parental relation, and the rights flow ing therefrom, the question of religion cannot be regarded as entering into this case. It is conceivable that, on change in custody of a child of peculiar temperament, ill-considered proselyting might be so begun and carried on as to destroy completely the foundation of all faith, and lead to positive immorality. . It will be time enough to deal with such a case when it arises,
A motion by Isabelle James to dismiss the appeal is denied, her cross-appeal is without merit, and the judgment of the district court is reversed. The cause is remanded to the district court with direction to enter judgment awarding custody of the child to Sallie Denton as its parent by adoption, and to issue an order requiring the sheriff to deliver possession of the child to her.
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' The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought by the plaintiff to compel the state charter board to consider its ap plication for permission to sell its stock and securities within the state, and to find and determine whether the plaintiff had complied with the statutes of the state and is entitled to dispose of securities and stock in Kansas. The plaintiff, an unincorporated association, submitted its agreement or declaration of trust under which it was organized, and its plan of operations, to the charter board, with a request that it be permitted to sell its stock and securities within the state. That tribunal concluded that the agreement created a partnership and was not such an organization as was entitled to sell securities and stock in Kansas, because the agreement created partnership liabilities and the plan of business was inequitable and unfair. The board therefore declined to investigate or consider the solvency of the company, whether its plan of business was otherwise honest and fair to investors, its advertising matter free from deception, and whether or not a reasonable value had been placed upon the assets of the company which was offered in exchange for property and securities. Having determined that each shareholder became liable as a partner and that the business of the sale of its securities and stock was to be conducted upon a plan regarded to be unfair and inequitable, the board deemed it unnecessary to proceed further with the investigation.
The first and principal question presented for determination is whether the company as organized constitutes a partnership. If the shareholders are not partners liable for the debts of the company, and the business contemplated is not contrary to law or public policy, it was the duty of the charter board to investigate and determine the merits of the plaintiff’s application. The agreement is a declaration of trust in which parties transfer to trustees certain property interests, and for the purpose of defining the interest of each subscriber in the estate, the trustees were to issue negotiable certificates of shares to the extent of 150,000, each of the value of $1, and which they might if they deemed it expedient, increase to 1,000,000 shares. They engaged to use the property and proceeds of the shares sold in a general manufacturing, mercantile, or commercial business, in any and all of its branches; to buy, sell, hypothecate or otherwise deal in bonds and stock, debentures, notes and all forms of obligations of corporations, countries, states, counties, and municipalities or persons. In fact they were authorized to buy, sell and deal in all kinds of property and to carry on all kinds of business not inconsistent with law. It was stipulated that the trustees should not be less than three nor more than five in number, to be elected annually by the shareholders at their meetings, and vacancies in the number of trustees are to be filled by the remaining trustees.
In respect to the functions, obligations and liabilities of the trustees, it is provided:
“The trustees shall hold the legal title to all property at any time belonging to the trust, and shall have and exercise the exclusive management and control of the same; they shall assume all contracts for, and obligations and liabilities in connection with or growing out of the property assigned to them by the subscriber and mentioned in the schedule filed with the trustees, also, in the management of the same; and to the extent of the value of such property and business, but not personally, shall agree to hold the subscribed and any persons associated with and acting with him, harmless, and indemnified from and' against any loss, cost, expense or liability upon, or by reason of, or in connection with any contract, obligation or liability; they may adopt and use a common seal with such designs as they, in their discretion, may deem best suited to disclose the purposes of the company; they may collect, sue for, receive and receipt for all monies at any time due to said trust; they may employ counsel to begin, prosecute, defend or settle suits at law, in equity or otherwise; with the consent of all the trustees given at a meeting called for that purpose, but not otherwise, unless the general power shall at any time be delegated by a full board meeting to any one particular individual member or members, in writing; they may borrow money for the purposes incidental to the proper management and like manner as they may deem best, to secure said loans; and they shall incur no debt or loan liability except such as may be incidental to the proper management of the property held by them and the other proper carrying out of the purposes of their trust.
“In addition to the shares to be originally issued to the subscribed as hereinbefore provided, the trustees shall issue and sell at public or private sale, upon such terms and for such prices as they may deem expedient, such additional shares as may be necessary to provide funds to carry on and accomplish the purposes hereinbefore mentioned and set forth. The total amount to be issued by said trustees shall not in any event exceed one million (1,000,000) shares. The trustees may accept property or services in lieu of cash for the shares issued by them, and they shall be the sole judges of the value of said services or property.
“So far as strangers to this trust are concerned, a resolution of the trustees authorizing a particular act to be done, shall be conclusive evidence in favor of such strangers that such act is within the powers of the trustees, and no purchaser from the trustees or on loaning- money to the trustees, shall be bound to see the application of the purchase money or other consideration paid or delivered by or from said purchaser or loaner to or for said trustee.”
Other provisions in the agreement are to the effect that the trustees may make, amend, and repeal by-laws, may elect officers and appoint agents and fix their compensation, may pay themselves such compensation as they deem to be reasonable, and they shall not be liable for errors of judgment and shall pay only such dividends as they deem advisable, the amount of such dividends to be left wholly to their discretion. The trust is to continue not longer than twenty years and when ended the trustees are to wind up its affairs, liquidate its assets and distribute the same among the holders of the shares according to the number of shares held by each. It was also provided that the death of a shareholder should not determine the trust-nor entitle the legal representatives of such shareholder to an accounting or to take any action in any court or elsewhere against the trustees, but that the regular representatives of the deceased shareholder should succeed to the rights of the decedent. There were further provisions that:
“The ownership of shares hereunder shall not entitle the shareholders of any title in or to the trust property whatsoever or right to call for a partition or division of same, or for an accounting, or for any voice or control whatsoever of the trust property, or of the management of said property or business connected therewith by the trustees.
“The trustees shall have no power to bind the shareholders personally, and the subscriber and his assigns and all persons and corporations extending credit to, contracting- with, or having any claim against the trustees shall look only to the funds and property of the trust for payment under such contract or claim, or for the payment of any debt, damage, judgment or decree, or of any money that may otherwise become due or payable to him from the trustees, so that neither the trustees nor the shareholders present or future, shall be personally liable therefor.
“In every written order, contract or obligation which the trustees shall give or enter into, it shall be the duty of the trustees to stipulate that neither the trustees nor the shareholders shall be held for any personal liability, under or by reason of such contract, order of obligation.”
As will be observed, the title as well as the exclusive management and control of the property of the trust are absolutely vested in the trustees. The shareholders have no voice or control in the property or its management and no right even to call for an accounting by the trustees. They can exercise no authority as individuals nor in association, except to elect the trustees, and when new trustees are elected they have the same absolute authority and control that are specified in the declaration of trust. 'It is expressly stated that no personal liability of a shareholder can arise by reason of any contract the trustees may make, any obligation they may assume or any judgment rendered against them, and to put the matter of personal liability beyond cavil it is provided that in every written order, contract, or obligation, -given or entered into by the trustees, they are required to write into it the provision that the shareholders as well as the trustees shall be free from any personal liability.. Under the declaration all persons extending credit to the trustees or entering into contracts with them must look alone to the funds and property of the -trust estate for payment.
Whether an agreement committing the possession and con-1 trol of property to trustees for the benefit of shareholders/ creates a trust or partnership, depends upon the interest trans-1 ferred and the extent of the control given to the trustees. If ■ the title is transferred to them and they are given the exclusive power to act as principals in the management of the trust property, a true trust is created, but if the shareholders are coproprietors and the trustees are subject to the control of the shareholders in the management of the trust, it is deemed'to be a partnership. ’ Such a test has been applied in Massachusetts, where a large volume of business is done under trust agreements. The cases of Hoadley v. County Commissioners, 105 Mass. 519; Whitman v. Porter, 107 Mass. 522; Phillips v. Blatchford, 137 Mass. 510; Ricker v. American Loan & Trust Co., 140 Mass. 346; Williams v. Boston, 208 Mass. 497; Frost v. Thompson, 219 Mass. 360; Priestley v. Treasurer & Receiver General, 230 Mass. 452, are examples of those which fall on the partnership side of the line. On the other hand, Mayo v. Moritz, 151 Mass. 481, and Williams v. Milton, 215 Mass. 1, illustrate the type of agreements which are held to create a pure trust. In the Williams v. Milton case there is a full discussion of the elements entering into the two classes of agreements, and the line dividing them is clearly pointed out. It was said:
“The difference between Hoadley v. County Commissioners, 105 Mass. 519 (involving the same indenture as that in Gleason v. McKay, 134 Mass. 419), Whitman v. Porter, 107 Mass. 522, Phillips v. Blatchford, 137 Mass. 510, Ricker v. American Loan & Trust Co., 140 Mass. 346, and Williams v. Boston, 208 Mass. 497, on the one hand, and Mayo v. Moritz, 151 Mass. 481, on the other hand, lies in the fact that in the former cases the certificate holders are associated together by the terms of the ‘trust’ and are the principals whose instructions are to be obeyed by their agent who for their convenience holds the legal title to their property. The property is their property. They are the masters. While in Mayo v. Moritz, on the other hand, there is no association between the certificate holders. The property is the property of the trustees and the trustees are the masters. All that the certificate holders in Mayo v. Moritz had was a right to have the property managed by the trustees fox their benefit. They had no right to manage it themselves nor to instruct the trustees how to manage it for them. As was said by C. Allen, J., in Mayo v. Moritz, 151 Mass. 481, 484, ‘The scrip-holders are cestuis que trust, and are entitled to their share of the avails of the property when the same is sold,’ and that is all to which they were entitled. In Mayo v. Moritz the scrip-holders had a common interest in the trust fund in the same sense that the members of a class of life tenants and the members of a class of remaindermen (among whom the income of a trust fund and the corpus are to be distributed respectively) have a common ■ interest. But in Mayo v. Moritz there was no association among the certificate holders just as there is no association although a common interest among the life tenants or the remaindermen in an ordinary trust. For a decision in this commonwealth somewhat like Mayo v. Moritz, ubi supra, see Hussey v. Arnold, 185 Mass. 202. See, also, in this connection, Makin v. Savings Institution at Portland, 23 Maine, 350; Burt v. Lathrop, 52 Mich. 106.” (p. 8.)
Another case in line with the theory of Williams v. Milton, supra, is the Wells-Stone Mercantile Co. v. Grover, 7 N. D. 460, where a deed of trust was executed by a debtor in which creditors joined. It was said:
“An insolvent debtor made a deed of trust, in which his creditors joined. By the terms of the deed, the trustee was to continue the business of the debtor as long as he should deem it for the interests of the creditors so to do. The entire management and control of the business were intrusted to him. Whenever the trustee deemed it best to discontinue the business, the property was to be sold, and the claims of all the creditors signing the deed were to be paid from the proceeds; the surplus, if any, to go to the debtor. Held, that the creditors signing the deed did not thereby render themselves the real proprietors of the business, and, therefore, that they were not liable to creditors of whom the trustee had purchased goods in the prosecution of such business. The relation created by the instrument was that of trustee and beneficiary, and not that of principal and agent.” (Syl. ¶ 1.)
Still another case closely in point is R. I. Hospital Trust Co. v. Copeland, 39 R. I. 193, which is as follows:
“An association organized and doing business under a declaration of trust, the beneficial interest under which is divided into transferable shares, the title to the property being in the trustees only who are given the most ample powers of management and control, and are prohibited from binding the shareholders personally; the shareholders not being liable for any assessment; persons contracting with the trustees being required to look to the fund and not to the trustees or stockholders; power being given the trustees to declare dividends, is in its nature a true trust and not a partnership, and the holders of the ‘stock’ so-called, are not under individual and personal liability for any of the obligations or indebtedness of the trust.” (Syl. ¶ 1.)
(See, also, Hussey v. Arnold, 185 Mass. 202; In re Associated Trust, 222 Fed. 1012; Crocker v. Malley, 249 U. S. 223; Cox v. Hickman, 8 H. L. C. 268; Smith v. Anderson, 15 Ch. D. 247; Crowther v. Thorley, 32 W. R. 330; In re Siddall, 29 Ch. D. 1; In re Thomas, 14 Q. B. D. 379; In re Faure Electric Accummulator Co., 40 Ch. D. 141; Wrightington on Unincorporated Associations, p. 49; Chandler on Express Trusts under the Common Law, p. 19.)
Following the rule of the authorities, it is clear that the shareholders herein cannot be regarded as partners. They had surrendered proprietorship in the property to the trustees and have no control over it or of the business done by the company, and neither can they be held liable upon any contract or obligation of the trustees. The latter act as proprietors and principals and conduct the business free from the control of the shareholders and may make and change investments whenever they deem best and make or withhold dividends in their discretion. They do not take orders or directions from shareholders and are in no sense the agents of the shareholders. / While stock is issued to shareholders, the shares give no right except to furnish a basis for the division of profits and for a distribution of the property and funds when the trust is concluded. The stock measures the voting strength of shareholders when trustees are elected, but the fact that they choose trustees with the powers conferred by the declaration of trust is not such control as to make the trustees their agents or give the shareholders the character of partners. It follows that the state charter board was not warranted in denying the application of the plaintiff upon the ground that it was a partnership.
It does not follow, however, that the plaintiff as organized is entitled to a permit to sell its stock and securities, even if it is found to be solvent, its assets substantial and sufficient, and its plan of business such as would be fair and equitable towards investors. To meet the requirements of our law the company must bring itself within the rules applicable to corporations and conform to the regulations imposed by statute on corporations. The constitution expressly provides that—
“The term corporations, as used in this article, shall include all associations and joint-stock companies having powers and privileges not possessed by individuals or partnerships; and all corporations may sue and be sued in their corporate name.” (Kan. Const., art. 12, § 6, Gen. Stat. 1915, § 241.)
The first section of article twelve provides that corporations may be created under general laws, and that no special act conferring corporate powers may be passed by the legislature. It requires no argument to show that the plaintiff has and is proposing to exercise powers and privileges not possessed by individuals or partnerships. There is first the limited liability under which both shareholders and trustees are exempted from all personal liability. The corpus or joint property is to be continued during the existence of the trust freed from the rules of joint tenancy or tenancy in common, and the organization is not dissolved by the death of a shareholder or trustee. The interest of the shareholder is represented and measured by negotiable shares of stock which give voting power much the same as does corporate stock. A common seal is to be adopted and used substantially as is done by corporations, and the trustees “may elect officers who shall have the authority and duties usually incident to like officers in corporations.” It is not necessary to the validity of the action of the trustees that there should be a concurrence of all of them, but it is provided that a majority of those present and voting at any meeting shall be sufficient. Other provisions already mentioned give the company powers and privileges beyond those possessed by individuals or partnerships; and within the rule of the constitution the organization is to be regarded as a corporation. Many statutory provisions have been enacted for the organiza tion and regulation of corporations, which are wholly inconsistent with the organization and plan of the plaintiff company, and with which it will manifestly be unable to conform. For this reason the writ of mandamus applied for is denied.
Bennett R. Wheeler, S. M. Brewster, and John L. Hunt, all of Topeka, for the plaintiffs.
Richard J. Hopkins, attorney-general, and Maurice McNeill, assistant attorney-general, for the defendants.
William H. Thompson, of Kansas City, as amicus curias.
Dawson, J.: Dissenting.
OPINION ON MOTION TO MODIFY JUDGMENT.
SYLLABUS BY THE COURT.
1. Unincorporated Trust Company — Sale of Shares of Stock — Not “Doing Business” Within the Statute. A sale of the shares of stock in the trust in question is held not to be the doing' of business within the accepted meaning of that term, and the plaintiff is entitled to sell its shares in the state if, upon the inquiry by the state charter board, the plaintiff is found to measure up to the conditions and qualifications prescribed' by the statute as to the right to sell securities within the state.
2. Same — Application to Sell Shares of Stock — Duty of Charter Board. Under the facts of the case it is found to be the duty of the state charter board to consider and pass upon the merits of plaintiff’s application for permission to sell shares of stock in the trust, and having declined to do so, the writ of mandamus to compel such action is granted.
Original proceeding in mandamus. Opinion modifying former judgment filed June 5, 1920. Writ allowed.
The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff asks for a modification of the decision and judgment formerly rendered as to the right of the plaintiff to sell its stock in Kansas, or rather as to the duty of the state charter board to examine and pass upon its application to sell shares of stock in the state.
From expressions employed in the pleadings and briefs of the plaintiff, it was assumed that the application filed with the state charter board asked permission to sell, not only shares of stock, but other securities as well. As one of the purposes for which the company is organized is to buy, sell and hypothecate bonds, debentures, notes, obligations and other securities issued by private and public corporations, and individuals, it was assumed that plaintiff was asking for permission to carry on the business of dealing in securities in Kansas. It now appears that it is not asking for permission to do business in the state, but only that it may sell shares of its stock within the state. Because of this misapprehension, some language was used at the close of the former opinion that was not appropriate to the real question involved.
The principal controversy which divided the parties was whether the plaintiff as organized was a true trust or a partnership, and it was determined that the trust agreement created a trust, and that the shareholders are not under any partnership or personal liability for the obligations or indebtedness of the trust. Upon a somewhat cursory examination the state charter board decided that the plaintiff was a partnership, and that the shareholders were personally liable for the debts of the trust, and therefore declined to go farther in the examination of the application or to pass upon its merits. The board assumed that plaintiff was seeking to do business in Kansas under an organization not recognized in the state. The permission sought, however, was not admission into the state for the purpose of doing business, and was no more than an opportunity to sell shares of stock with a view of raising money on which to do business. The general holding of the courts is that the doing of business is the exercise of some of the functions and the carrying on of the ordinary business for which the company is organized. (3 Words & Phrases, p. 2155; 6 Thompson’s Commentaries on the Law of Corporations, § 7936; Barse Live Stock Co. v. Range V. C. Co., 16 Utah, 59). Single and isolated transactions do not ordinarily constitute the doing of business (Osborne v. Shilling, 74 Kan. 675, 88 Pac. 258) and neither can the sale of shares or the ownership of stock of a nonresident company be regarded as within that term. (Payson v. Withers, Fed. Cas. No. 10, 864, 5 Biss. 269; United States v. American Bell Telephone Co., 29 Fed. 17.)
The right of the plaintiff to have its application considered is to be determined by what it is proposing to do now, and not by what it may hereafter undertake to do. It has been rightly decided that under the constitution the plaintiff is to be treated as a corporation, and if it should apply for permission to do j business in the state, it would be subject to the corporation law Í so far as the same is applicable to that class of corporations, j Of course, there are provisions of the law relating to corporations that are not applicable to companies like the plaintiff, and the legislature has not as yet enacted statutes peculiarly applicable to that class of corporations. It will be time enough to determine what regulations should be applied when they are imposed upon a company like the plaintiff, or when a question arises as to their right to do business in the state. Regardless of its corporate character, or even of the lack of it, the plaintiff is entitled to have its application considered by the state charter board upon its merits, and upon the theory that there is no personal or partnership liability of shareholders, the same as if the application had been made by any other person, company or corporation. It devolves upon the board to inquire as to the solvency and responsibility of the plaintiff, the sufficiency of its assets, the trustworthiness of those representing and managing it, the fairness, honesty and equity of its plan, the security afforded investors, that its funds will not be dissipated or misappropriated, and if it is found to measure up to the statute in these and other respects, a permit may be issued to it. (Laws 1919, ch. 153.)
Haying determined that the plaintiff is not a partnership, and further that the proposed sale of shares in the trust is not the doing of business within the accepted meaning of that term, it was the duty of the state charter board to consider and pass upon the merits of plaintiff’s application, and the writ of mandamus as prayed for will therefore be issued.
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The opinion of the court was delivered by
Burch, J.:
The action was one against an employer for damages resulting from personal injuries sustained in a collision with an autotruck negligently driven by his employee. The question was whether or not the driver was within the scope of his employment when .the collision occurred. The plaintiff recovered, and the defendant appeals.
The defendant’s place of business is on Douglas avenue, a street running east and west in the city of Wichita. Four blocks north of Douglas avenue is the parallel street of Cen tral avenue. Between the two is Second street. The first street east of the defendant’s place of business, which runs north to Central avenue, is Topeka avenue. East of Topeka avenue are the following parallel streets: Emporia avenue, St. Francis avenue, Cleveland avenue, and Mathewson avenue. The driver of the truck, Morris, was required to deliver a box at a residence on Mathewson avenue, north of Central avenue. Another employee of the defendant, Handley, asked the driver to take him to his home to get his overcoat. They went west on Douglas avenue three blocks to Main street, north on Main street to Central avenue, and west on Central avenue five and a half blocks to Handley’s home. After Handley procured his overcoat they went east on Central avenue, crossed Topeka avenue, and had reached Emporia avenue when the accident occurred. Central avenue is paved as far east as St. Francis avenue. From there to Mathewson avenue it is not paved, and is crossed by some railroad tracks.
No complaint is made of the instructions, which submitted to the jury the question whether or not, after going for Handley’s overcoat, Morris had resumed his errand of delivering the box, and was acting in the scope of his employment when the accident occurred. The jury returned the following special findings of fact, which are not contested:
“1. Q. If you find the defendant Armstrong or his agents guilty of negligence, state fully each and all acts of negligence. A. By driving carelessly, and not watching where he was going.
“2. Q. At the time the injury complained of occurred, were Ambrose Morris and H. M. Handley returning from Handley’s house or home, where they had gone to get Handley’s overcoat? A. No.
“3. Q. If you find Handley had gone to get his coat, and was returning from this mission when the injuries to the plaintiff occurred, then state was he getting this coat for his own personal purposes. A. He was not returning from getting his coat at the time of the accident.
“4. Q. If you answer the last question ‘no,’ then state fully for what purposes he was getting his coat. A. From Topeka and Central west to fifth block on West Central and return east to Topeka and Central on mission for his coat, from Topeka east on Central on mission of delivering-box.
“5. Q. Was the usual and direct, regular and proper route from the Armstrong Music Company’s place of business in Wichita, Kansas, to 513 Mathewson street, as follows: East on Douglas avenue to Cleveland avenue, then north on Cleveland to Central avenue, then east on Central to Mathewson; or north on Topeka avenue to Second street, then east on Second street to Cleveland avenue, then north on Cleveland avenue to Central, then east on Central to Mathewson, north on Mathewson to 513 Mathewson. A. Yes, with other routes including: North on Topeka to Central, then east on Central to Mathewson, then north on Mathewson to point oí delivery.
“6. Q. Was Mr. Handley’s home, or the place where he and Morris went to get Handley’s overcoat, on that route? A. No.
“1. Q. At the time of the collision on Central avenue, were Handley and Morris on the usual, regular and customary route from Armstrong Music Company’s place of business to Mathewson street where the box was to be delivered. A. Yes, one of them.”
The defendant contends he was not allowed to present his case fairly to the jury, because of the exclusion of material evidence. Morris was not permitted to testify that in delivering the box he would not have been at Central and Emporia avenues, where the accident occurred, if he had not gone on the errand for Handley; and that if the accident had not occurred, he intended to go east on Central avenue to St. Francis, south on St. Francis to Second, east on Second to Cleveland, north on Cleveland to Central, and then east on Central to Mathewson. The offered evidence was not material.
If the place where the accident occurred were a place where the driver, confining his conduct strictly to the business of delivering the box, might properly be, and if when at that place his movements were impelled by a purpose to deliver the box, the jury was authorized to say he was then within the scope of his employment. Intention and locality concurred to place him there. Whether or not he would have been there but for the deviation, and what course convenience might have suggested he should take from there on, were not important. There are authorities which would sustain a finding of fact that Morris was within the scope of his employment from the time he left Handley’s house, but it is not necessary to approve or disapprove them. The question of when the course of deviation has turned, back into the course of employment is a question of fact (Notes, 47 L. R. A., n. s., 662; L. R. A., 1916A, 957), and the observations just made are well within any reasonable rule.
Whatever may be said respecting the propriety of the court’s rulings, the offered evidence was sufficiently covered by testimony which Morris was permitted to give. He described two so-called usual and ordinary routes of travel from the defendant’s place of business to the place where the box was to be delivered, neither one of which would touch the place of the accident, and he then described what route he would take in making the delivery. He said he would go east on Douglas to Cleveland, down Cleveland to Central, and over on Central to Mathewson, and he gave the facts relating to the desirability or undesirability of Central avenue as part of a direct route to Mathewson from the place of the accident.
The unpaved condition of east Central avenue did not deter Morris from including a portion of it in his preferred route to Mathewson, and the other “usual and ordinary” route which he described crossed railroad tracks. After weighing the testimony, the jury was satisfied the route by way of Topeka avenue to Central, and then east on Central to Mathewson, was just as “usüal and direct, regular and proper,” as any other, and so found.
There is nothing else of importance in the case, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The appellees recovered judgment against the National Liberty Insurance Company on a policy of fire insurance. The insurance company appeals. It wrote a policy of insurance for $1,200 on “a one and one-half story, shingled roof, frame building and additions thereto adjoining and communicating only while occupied as a dwelling house,” known and described as 1118 North Seventh street, Atchison, Kan. The premium paid was $8.40 for a three-year policy, a rate of 70 cents on each $100 for that period. That was the rate on residence property. The rate on business property was much higher. The policy provided that—
“No agent of this company has authority to grant insurance under this policy upon any property other than dwellings 'and their contents, out-buildings and their contents, private stables or barns or their contents located in and adjacent to cities and villages and is expressly agreed that this policy shall be void if it purport to be insurance upon any other property or class of property.”
It seems that the policy, in case of fire, also provided that appraisers should be appointed to ascertain the amount of loss, if the parties to the policy could not agree concerning that amount.
The building, or buildings, at the place described consisted of a one and one-half story dwelling house and of a one-story addition thereto used as a dwelling house and as an ice-cream parlor. A fire occurred, and both the dwelling house and the addition thereto were damaged. Each, at the time of the fire, was occupied as a dwelling house and had been so occupied for a number of years prior thereto. A written agreement that certain parties should estimate the loss was entered into. That agreement read:
“This agreement, made and entered into by and between M. H. Graff of the first part, and the insurance company or companies, whose name or names are signed hereto, of the second part.
“Witnesseth, That Ira C. Hammond and Frank D. Pelletier shall appraise and estimate the loss upon the property damaged and destroyed by the fire of February 12, 1918, as specified below: Provided, That the said appraisers shall first select a competent and disinterested umpire, who shall act with them in matters of difference Only. The award of said appraisers, or any two of them, made in writing, in accordance with this agreement, shall be binding upon both parties to this agreement. It is expressly understood that this agreement and appraisement is for the purpose of ascertaining and fixing the amount of sound value' and loss and damage only, to the property hereinafter described, and shall not determine, waive, nor invalidate any other right or rights of either party to this agreement.
“The property on which the loss or damage is to be determined is as follows, to wit: $1,200.00, on 1% story shingle roof frame building, and on additions thereto, adjoining and communicating, only while, occupied as a dwelling house, etc. . . .
“It is further expressly understood and agreed that in determining the loss or damage upon the property hereinbefore mentioned, the said appraisers are to make an estimate of the actual cash cost of replacing or repairing the same, or the actual cash value thereof, at and immediately preceding the time of the fire; and in case of depreciation of the property from use, age, condition, location or otherwise, a proper deduction shall be made therefor.”
In the appraisement under that contract the damage to the dwelling house was placed at $205.50. No appraisement was made of the damage to the addition. The insurance company offered to pay the amount fixed by the appraisers, tendered that amount to the plaintiff, and refused to pay more. This action was then commenced by M. H. Graff, who recovered judgment against the insurance company for $650 in addition to the sum awarded by the appraisers, a total judgment of $855.50. Judgment was also rendered in her favor for $100 attorney’s fee. On account of a mortgage clause attached to the policy, judgment was rendered for $498.25 in favor of defendant Mary E. Baker, who held a mortgage on the property. Special questions were answered by the jury as follows:
“Q. 1. Was the one and a half story shingle roof frame dwelling at 1118 North Seventh street occupied as a dwelling house only, at the time of the fire? A. Yes.
“Q. 2. Was the one-story building or portion of building at 1118 North Seventh street used as a dwelling house, and in addition thereto, used as an ice cream parlor or restaurant, where the tenant sold ice cream, pies, cakes, and fish? A. Yes.
“Q. 3. Was the one and a half story dwelling house adjoining to the one story building or portion of building above referred to? A. Yes.
“Q. 4. If you answer question No. 3"‘Yes,’ then state how such buildings adjoined? A. Permanently and securely attached.
“Q. 5. Did the one and a half story dwelling house communicate with the one story or restaurant portion of the building involved in this controversy? A. Yes.
“Q. 6. If you answer question No. 5 ‘Yes,’ then state how and by what means the two buildings communicated? A. By doorway.
“Q. 7. Did the appraisers in making the award in this case, visit the premises and there see the one and a half story dwelling house and the one story store-building or restaurant, and upon a view of the premises and examination of the policy and the contract of submission to arbi trators, decline and refuse to make any award covering the restaurant portion of said building? A. Yes.
“Q. 9. If you answer question No. 2 ‘Yes,’ or in the affirmative, then state whether under the evidence and instructions you find that it was used as a dwelling house only? A. As an ice cream parlor in a meager way.”
After judgment was rendered M. H. Graff died, and the judgment was revived in the name of Daisy D. Holbrook, Jennie B. Smith, and Urie Compton, sole surviving heirs of M. H. Graff.
1. The insurance company argues that the decision of the appraisers fixing the damage was final and conclusive on all the parties to this action. The plaintiffs seek to avoid the effect of the appraisement by arguing that it was not binding because the appraisers misunderstood the terms of the policy and of the contract for appraisement and did not appraise the loss to or damage sustained by the addition to the dwelling house, and because M. H. Graff had no notice of the meeting of the appraisers. The insurance company responds that the question of notice was not presented by the pleadings nor by the evidence, and is now raised for the first time. M. H. Graff testified, “I was not present when the arbitration and determination of the amount of loss under the policy was had. The arbitrator was here and back out of town before I knew it.”
The policy and the agreement to.appraise the loss covered the one and one-half story frame dwelling house and additions thereto. A careful reading of the evidence abstracted does not show more than one addition to the dwelling house. The loss to the addition was not appraised. The language of the policy and of the contract of appraisement included the addition. From the evidence abstracted the jury was warranted in finding that the one and one-half story building adjoined the one-story addition. A contrary finding could not well have been made under the evidence, although the means of communication between the addition and the main part of the building had been nailed up for a while previous to the fire. Each part of the building had for some time been occupied as a residence by a family, and while so occupied the door communicating between the two parts had been nailed up. The defendant pleaded that the policy would be void if it were construed to cover the addition to the dwelling house for the reason that it was used as a business property. If this allegation in the answer were true, it might have avoided the policy; but that fact did not justify the appraisers in omitting to appraise the damage to the addition. .
In Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520, a case that arose over a final estimate made by an engineer on construction work where the contract provided that his estimate, should be final, this was said:
“Of course, if there were fraud, gross mistake, or the failure to exercise an honest judgment by the umpire, his estimate or award would not be binding.” (p. 24.)
The discussion in Atchison v. Rackliffe, 78 Kan. 320, 96 Pac. 477, supports the rule declared in Edwards v. Hartshorn. The following was said in Swisher v. Dunn, 89 Kan. 412, 131 Pac. 571:
“The award of arbitrators is not binding where it is the result of a misapprehension on their part of the meaning of the language used in defining the matter submitted to their decision.” (Syl. ¶ 4.)
Each side has cited and quoted from Corpus Juris; we quote one paragraph from that work:
“A party may, even at common law, set up, in defense to an action on an award, any matter which shows that the arbitrator has not pursued his authority, either in not determining some matter brought before him which he ought to determine, or in determining some matter which he had no authority to determine. The ground on which these cases stand is, not that the award is bad for misbehavior of the arbitrator, but that there is no award within the terms of the submission.” (5 C. J. 193.)
This rule was followed in Clark v. Goit, 1 Kan. App. 345, 41 Pac. 214, where this language was used:
“In defense of an action on an award, or for not performing an award, the defendant may avail himself of any material error or defect apparent upon the face of the award, such as excess of power by the arbitrators, or defect of execution of power, as by omitting to consider a matter submitted.” (Syl.)
The defendant argues this question as though the contract for the appraisement of the loss were a submission to arbitra-. tion of the whole controversjr between the plaintiff and the defendant. The contract does not bear that interpretation. By it the appraisers were to estimáte the loss or damage on the dwelling house and on the addition to it.
The contract contained the words “only while occupied as a dwelling house.” These words appear to have been copied from the policy. It does not appear from the contract that it was intended by the parties thereto to submit to the appraisers the power to determine whether the property was occupied as a dwelling house or not. On its face the contract submitted to the appraiser but one question — the loss or damage to the dwelling house and to the additions thereto.
Chandos and another v. American Fire Ins. Co. of Philadelphia, 84 Wis. 184, is cited by the defendant. The first paragraph of the syllabus reads:
“The decision of arbitrators or appraisers chosen pursuant to an insurance policy to determine the amount of a loss, as to what particular articles or items of property are embraced within the general description of the property insured, is final and conclusive.”
In that case the insured made a schedule of the insured property as claimed by him, but omitted to describe part of it. The part omitted was not appraised. In the present case all the property was described, but the appraisers did not ascertain the damage to all of it. The plaintiff had no opportunity to call the attention of the appraisers to the mistake being made by them, as the appraisement was made without notice to her of the time of making it, and was completed before she knew anything about it. The appraisement was not conclusive on the plaintiff.
2. The insurance company seeks to put an interpretation on the words “only while occupied as a dwelling house” that does not accord with their meaning. Written in other language these words would say that the policy covered the building “during the time it is occupied as a dwelling house.” The meaning the company seeks to give to the words used is that the policy shall attach “while the building is occupied exclusively as a dwelling house.” That is not the meaning of the language used.
“Contracts of insurance are to be construed, where construction is permissible, most strongly against the insurer and in favor of the insured.” (Insurance Co. v. Milling Co., 69 Kan. 114, syl. ¶ 1, 76 Pac. 423.)
This rule has been applied by this court in several instances. (Fire Association v. Taylor, 76 Kan. 392, 91 Pac. 1070; Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78; Packing Co. v. Insurance Co., 94 Kan. 630, 634, 146 Pac. 1175.)
The court has made a somewhat diligent search for cases that are in some degree parallel to the present one. In Thomas v. Commercial Union Assur. Co., 162 Mass. 29; Bowditch v. Norwich Union Fire Ins. Co., 193 Mass. 565; Sarsfield v. The Metropolitan Insurance Co., 42 How. (N. Y.) 97, and Dougherty v. Greenwich Ins. Co., 64 N. J. L. 716, the uses to which the buildings were put were primarily for business purposes, and the use of the buildings as dwellings was entirely secondary.
Applying to the language, “only while occupied as a dwelling house,” the rule followed in this state, it must be held that the policy could not be avoided by the limited use of the one-story part of the building as an ice cream parlor.
3. Another proposition argued is that the court committed error in refusing to give certain requested instructions concerning the discrimination in rates in favor of the insured, if the policy be held to cover the entire property. The insurance company argues that section 5369 of the General Statutes of 1915 prohibits discrimination, and that the policy, if it covered the business property, was void for the reason'that it insured that property for less than the regular rate. The company also argues that the policy was rendered void by reason of a part of the property being used for business purposes. The insurance company pleaded the appraisement, its offer to pay to the plaintiff the amount of damage that the appraisers fixed for the one and one-half story part of the property, and its tender of that amount to her; it tendered that sum into court for the benefit of the plaintiff, and asked that judgment be rendered in her favor for that amount. This brings the present action within the rule of Wildey v. Sheppard, 61 Kan. 351, 59 Pac. 651, whe're this court said:
“The contention that Sheppard voluntarily exposed himself to unnecessary danger and is therefore not entitled to recover, as well as some claims of a general nature which go to the right to recover anything, are not available to the company. In its answer it alleged that, after investigation by an agent and adjuster of the company, an offer was made to the plaintiff as a payment of his claim. The offer, with the averment of the same in the pleading, practically acknowledges a right of recovery in Sheppard, and leaves open for consideration only the question of the amount for which the company is liable.” (p. 355.)
The company admitted its liability for $205.50. The offer to pay that amount was not an offer to compromise. The tender and the answer stated a direct liability for the loss to the one and one-half story part of the building, but it denied liability for the loss to the remainder of the building. If the policy could have been avoided as to part of the property, it could have been avoided as to the whole of it. If payment under the policy could have been avoided on account of the rate of insurance that had been paid, or on account of the use of part of the property, the admission of liability as to part of the property waived the right to avoid the policy on account of the rate of insurance and on account of the use of the property.
Other matters are presented. Some of them have their foundation in the things that have been discussed; the others do not seem to be of sufficient importance to warrant further discussion. They have been examined, and no reversible error is found in them.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
These appeals bring up for review two judgments rendered against the defendants for personal injuries sustained by plaintiffs through the negligence of defendants.
The assignments of error made by defendants raise substantially the questions that were presented here in the case of Howard v. Motor Co., which were determined at the May session of the court. (106 Kan. 775, 190 Pac. 11.) As the result of a collision of two automobiles, one of which was driven by an employee and agent of the defendants, Lucia S. Vail and Walter Scott Vail, as well as Fanny Howard, were severely in jured. It was alleged that the accident and injuries resulted from driving this car at an unlawful rate of speed arid in such a way as to constitute reckless and wanton negligence. The plaintiffs in these cases were near together upon the sidewalk when the collision occurred and when one of the colliding cars was thrown with great force upon the sidewalk and against the plaintiffs. The testimony as to the agency of Miller, who was driving one of the cars, and as to the circumstances of the injuries, was substantially the same in these cases as in the one already determined. The errors assigned in the instant cases are those that were urged in the Howard case. A repetition of the objections made and of the reasons for overruling them would serve no good purpose. The evidence is deemed to be sufficient to sustain the finding that Miller, the driver, was engaged in the service of his employers when the accident occurred and the injuries were inflicted. Defendants renew their attack upon the plaintiff’s evidence and point out inconsistencies in it and portions of it that seem to them to be unreasonable and incredible, but these are matters which were properly left to and have been determined by the jury. The testimony of Miller, upon which the verdicts largely rest, is of itself sufficient to sustain the verdicts.
We have examined all the evidence and have no hesitation in holding that the findings and verdicts are sufficiently supported by the evidence.
The judgments in both cases are affirmed.
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The opinion of the court was delivered by
Porter, J.:
In an action under the federal employers’ liability act, plaintiff recovered a judgment for $11,000 damages for the death of her husband, Joseph E. Waymire, who was a section foreman, and whose death was caused by an accident at the station of Douglass, Kan., about 6 o’clock in the evening of September 28, 1916.
At Douglass the railroad extends north and south. Way-mire, with four other section hands returning from work, rode on their hand car behind freight train No. 37, which came into the station from the north on the main track. Standing on the passing track east of the main track, and headed north, was freight train No. 1809, waiting to move north on the main line when train No. 37 should pass south and clear the switch. One hundred seventy-one feet south of the switch stand was a clearance post which indicated the widest distance between the passing track and the main line. Waymire desired to move his hand car south of the switch to avoid the necessity of removing it from the track and to make way for train No. 1809. He followed train No. 37 south of the switch stand, keeping his hand car at an average distance of about two car lengths from the rear of the train. It was claimed by the plaintiff that the train backed up and struck the hand car, causing the injuries which resulted in Waymire’s death. The train crew, including the brakeman, conductor, and engineer of No. 37, testified that the train was not backed at any time while it was at the station; and the defendant’s testimony was that the backward movement of the rear cars was caused by the running out of the slack, after the engine came to a standstill. The jury found, however, that the train backed. The finding was based upon the dying declaration of Waymire and the testimony of Mrs. Waymire. In his dying statement Way-mire said that the train backed up. The Waymires lived near the scene of the accident, and Mrs. Waymire testified that she was out in the yard and saw the two trains standing at the station, and her husband coming in on the hand car, and that train No. 37 backed up about two car lengths. The train consisted of seventy cars and was more than a half mile long. While there was a conflict in the evidence, the finding of the jury determined the fact that the train made a backward movement after it had come to a standstill.
Several minutes before train No. 37 made any backward movement, it had stopped at the station in order to unload merchandise from one of the forward cars. In this position, the rear of the train extended some distance north of the passing-track switch and obstructed the main line, so that it was necessary for the rear brakeman, P. U. Hershler, to go back a quarter of a mile to flag trains that might be approaching from the north. After being recalled and while he was returning, Waymire’s hand car overtook him, and he got on the hand car and rode to within two car lengths of the rear of the way car. His testimony was that he stepped off the hand car while it was in motion, ran ahead, climbed on top of the way car, and walked forward on top of the train several car lengths in order to signal to the head end and notify the other members of the crew that he had returned to the train. The evidence shows that he was the only member of the train crew who knew that the hand car was following immediately behind the train. He testified that after the backward movement of the cars, he returned to the end of the train and learned that Waymire had been injured. None of the other section men was injured. The evidence does not disclose whether they jumped or how they escaped injury.
The testimony of a number of experienced railway men, including the conductor and engineer of train No. 1809, a section foreman ánd a road master, was, in substance, that in their judgment it would not be safe for the hand car to follow along within two or three car lengths of a train on the main track, because of the danger that the train might make a backward movement, and that when the train stopped south of the clearance post, Waymire should have backed his car past the post or have taken the car off the track; that by doing either of these things he could have avoided all danger. The defendant also introduced the printed rules of the company, which provide that all persons engaged in track or bridge work shall keep a sharp lookout for trains from either direction and shall not assume that a train may not come for any certain time, nor act on the assurance of any person to that effect, and must protect themselves at all times, when necessary, with proper signals; that the greatest care must be exercised by section men and bridgemen while using hand cars on the main track, to avoid collisions with trains.
The jury made a finding that their verdict was based on the negligence of the defendant in improperly handling train No. 37, by moving it backward without giving a signal. They were asked to state which employee was guilty of the negligence, and answered that it was the rear brakeman. They found that the employees in control of the train knew of the dangerous proximity of the deceased to the rear of the train before the collision, and that the employees learned of this fact from the rear brakeman, “who rode in on the hand car and knew its position.” They found that Waymire was not guilty of negligence contributing to his death; that just before the collision occurred the hand car came to a standstill about two or three car lengths from the rear of the train, and that the trainmen, after stopping the train, reversed the engine and moved the train toward the point of collision with the hand car.
Finding No. 14 was to the effect that there was no necessity for Waymire to follow on through the north switch behind the south-bound train, aside from the inconvenience of removing the hand car from the track at some point north of the switch in order to let train No. 1809 pass; and further, that there was nothing to prevent Waymire from easily avoiding the collision by removing the hand car from the track at some point north of the switch. The finding that just before the accident occurred the employees in charge of the train knew of the position of the hand car and of Waymire, must be construed as meaning that notice to the rear brakeman of these facts was notice to the engineer and conductor of the train who were in charge of the movement of the train. It appears, however, that Hershler was at one end of the train and the engineer was at the other end, and that the train was more than a half mile in length. The findings of notice and negligence are obviously based upon the theory that it was the duty of the rear brakeman, upon reaching the top of the train, to notify the engineer at the other end of the train of the position and situation of the hand car.
The defendant contends that the only question involved in the case is, whether in the operation of. a railroad “a train is obliged to keep out of the way of a hand car, or a hand car to keep out of the way of a train.”. In our view of the case, this is the controlling question. Because, if it be assumed that notice and knowledge of the rear brakeman, respecting the situation of the hand car, was the knowledge of the other members of the train crew, the question in its last analysis is, whether those in charge of the train owed Waymire the duty to warn him that the train was about to be moved backward.
In addition to a general denial, the answer set up the affirmative defenses of contributory negligence and assumed risk. Consideration of the affirmative defenses may be eliminated for the reason that unless Waymire’s death resulted, in whole or in part, from the negligence of the employees in charge of train No. 37, the plaintiff cannot recover, and unless these employees owed some duty to Waymire which they failed to discharge, they were not guilty of negligence. As a general rule, the question of negligence is a mixed one of law and fact to be decided by the court when the facts are undisputed or conclusively proved, and to be left to the jury when the facts are disputed and the evidence is conflicting. (Wharton on Law of Negligence, §420, and to the same effect see Bouvier’s Law Dictionary, Eawle’s Third Eev., Title “Negligence,” 2315.) In the present case the facts are conclusively established by the findings, and their effect is for the judgment of the court.
In the case of Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612, which was brought under the federal employers’ liability act, a section foreman was injured by a train at a road crossing and the negligence relied upon was the failure of the train to sound the usual crossing signals. In that case it was ruled that:
“Railroad companies in the operation of their roads may rightfully assume that their section men while at work upon or along- the track will look out for the approach and passage of trains at all times, and ordinarily such companies owe to their section men no duty to warn them of the approach of trains save when such employees are found to be in a place of danger and it becomes apparent that they will not or cannot protect themselves.” (Syl. ¶ 1.)
“Crossing signals are not intended or required for the benefit of section men at work upon or along the track near a crossing, and the failure to give such signals is not negligence as to such employees thus engaged.” (Syl. ¶ 3.)
In the opinion it was said that—
“It follows naturally and logically that a railroad in respect to the speed of its trains can hardly owe a higher duty to a section man than to a stranger about to cross the track, and if such stranger must expect such speed as the exigencies of the traffic seem to require by so much the more must the trackman himself expect it.” (p. 448.)
The opinion commented upon the fact that trackmen are employed for the very purpose of enabling the railroad to furnish service to the public, arid it was said that they
“cannot require the employer to impair its efficiency by acting as watchman for them. . . . These views find support in the decisions of numerous courts, though usually from the standpoint of assumption of risk rather than from that of duty to warn.” (pp. 448, 449.)
The opinion quoted from Morris v. Boston & Maine Railroad, 184 Mass. 368, holding a railroad company was not liable to a section hand who was run into by a wild engine pushing a snowplow, and where it was said:
“By the nature of his employment a section hand on a steam railroad must look out for passing trains, and such is the settled law of the Commonwealth. (Citing authorities.) The rule of law is the same elsewhere. (Aerkfetz v. Humphreys, 145 U. S. 418; Pennsylvania Railroad v. Wachter, 60 Md. 395; Carlson v. Cincinnati, Saginaw & Mackinaw Railroad, 120 Mich. 481.)” (p. 371.)
In Loring v. K. C. Ft. S. & M. R’y Co., 128 Mo. 349, cited in the opinion in the Land case, s-upra, it was said:
“If the law exacts of a traveler upon a highway the duty of looking and listening^ a fortiori it demands of an employee familiar with the usages and dangers of a switch yard, that he look before he steps upon a track upon which his daily experience teaches him a train, or an engine, may pass at. any moment.” (p. 359.)
In C., N. O. & T. P. R. Co. v. Swann’s Admx., 160 Ky. 458, Swann was foreman of a crew of men engaged in doing work near the railroad tracks and a passing train struck and killed him. One of his duties was to keep a lookout for the approaching trains so that the track would be safe and the men under his charge protected. The decision turned upon the sole question of whether the railway company owed to Swann the duty of having its train under control, keeping a lookout and giving warning of its approach, or the duty of. doing any one of these acts. The action was under the federal statute. In the opinion it was said:
“To the employe like Swann, whose duty it is to look out for trains and protect the track, the company does not owe any of the duties assigned as negligence in this case. ... It was his business not only to take care of himself but to take care of the men and property under his charge, and the company and its employés in other branches of the service had the right to assume that he would perform this duty and were relieved of the necessity of exercising towards him the degree of care other employés not charged with like duties might have the right to demand. . . . Men in charge of trains, especially in the engine, have a multitude of duties to perform in the interest of and for the protection of the public, and they ought not to be distracted from the performance of these duties by being required to regulate the speed of the train and give notice and keep a look-out for other employés whose business it is to keep out of the way of trains, (pp. 468, 469.)
It was held that the lower court should have directed a verdict in favor of the railway company.
In Coleman’s Admr. v. Pittsburg C. C. & St. L. Ry. Co., 139 Ky. 559, Coleman, a crossing flagman, was killed by one of the company’s trains. In an action by the administrator to recover damages, it was said in the opinion:
“The master was under no obligation to give the flagman special notice of that which it was already his duty to know, or to provide a brakeman or other servant for the rear of the car to warn him to take notice of that which it was his primary duty to observe. From a careful inspection of this record we are unable to see wherein any negligence from appellee toward the decedent is proven.” (p. 562.)
In the case of L. & N. R. R. Co. v. Hunt’s Admr. et al., 142 Ky. 778, a recovery was denied on the ground that it was the duty of Hunt, who was a flagman, and was killed by a train backing upon him, to keep a lookout for trains, and therefore the only duty the company owed him was to prevent injury to him after his peril was discovered.
In Aerkfetz v. Humphreys, 145 U. S. 418, plaintiff was working on one of the railroad tracks and was run over and injured by a freight car moved by a switch engine. It was held that the facts disclosed no negligence on the part of the railway company. In the opinion Justice Brewer said:
“There could have been no thought or expectation on the part of the engineer, or of any other employé, that he, thus at work in a place of danger, would pay no attention to his own safety. Under such circumstances, what negligence can be attributed to the parties in control of the train or the management of the yard? They could not have moved the cars at any slower rate of speed. They were not bound to assume that any employé, familiar with the manner of doing- business, would be wholly indifferent to the going- and coming of the cars. There were no strangers whose presence was to be guarded against. The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving- forwards and backwards, would have simply tended to confusion. The person in direct charge had a right to act on the belief that the various employes in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach. The engine was moving slowly, so slowly that any ordinary attention on the part of the plaintiff to that which he knew was a part of the constant business of the yard would have made him aware of the approach of the cars, and enabled him to step to one side as they moved along the track. It cannot be that, under these circumstances, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employés who had all the time knowledge of what was to be expected. We see in the facts as disclosed no negligence on the part of the defendants.” (p. 420.)
' In Connelley v. Pennsylvania R. Co., 201 Fed. 54, 119 C. C. A. 392, an experienced trackwalker stopped to make repairs while enveloped in steam escaping from a standing engine and was struck and killed by a train. It was held there could be no recovery because there was no negligence on the part of the defendant. The opinion, after quoting from the language of Justice Brewer, supra, said:
“Indeed, in thus making self-protection the substantial safeguard of trackwalkers and sectionmen, the law is reasonable and just, for no other dependable safeguard can be afforded their perilous work in the practical operation of railroads. As said in Keefe v. Railway Co., 92 Iowa, 182, 60 N. W. 503, 54 Am. St. Rep. 542, 'These rules are founded upon the necessities of the business of operating railways.’ . . . This rule has the uniform support of courts in all sections of the country.” (Citing-cases.) (p. 57.)
It would unduly extend the opinion to make further citations of cases and authorities upholding the doctrine. The weight and size of a hand car in comparison to that of a heavy train of cars, the importance and necessity for the movement of the latter, and the readiness with which a hand car may be. lifted from the track, and the usual custom of section men to lift hand cars in order to avoid collisions with trains, are matters known to courts from common observation; and.the testimony of the experienced railroad men that the duty rested upon Waymire in the situation he found himself immediately before the accident to look out for the safety of himself, the men under him, and the property of the company, merely confirms what courts will take notice of.
The findings and the undisputed facts show that the employees in charge of the movement of the train, who were a half mile away from where the accident occurred, had no actual knowledge or notice that Waymire was in danger. It is argued, however, that they should have known of his situation because the engineer testified that before running into the station he passed the section men and saw them standing with their car beside the track at a place where they had removed it. But the engineer had the right to assume that the section foreman and his men would continue to look out for their own safety. This was equally true of the rear brakeman. When he left the hand car and climbed upon the train, he had the right to assume that the section men, instead of relying upon his giving signals to the engineer not to back the train, would protect themselves.
Wholly aside from any question of negligence on the part of Waymire, or the question of assumption of risk, the undisputed facts disclose there was no omission of any duty the defendant owed to him, and for that reason the judgment must be reversed and the cause remanded with directions to render judgment for the defendant.
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The opinion of the court was delivered by
Dawson, J.:
This action questions the validity of a contract for certain exclusive privileges granted by a railway company to a firm of cab and baggage men in and about the railway company’s station grounds and trains at Coffeyville.
The city of Coffeyville has railway service supplied by three railroads, the Missouri Pacific, the Katy, and the Santa Fe. Each of these has its separate depot. In 1914 the Missouri Pacific, plaintiff, conceived the idea of providing transportation service from its own depot to those of the other railroads operating in and out of Coffeyville, so that passengers, express and baggage might be furnished through service over its own lines and connecting carriers at Coffeyville. To that end it made a contract with defendants which, in part, reads:
“Whereas, it is mutually desired by the parties hereto that all such passengers, and their baggage, including property checked as baggage,' as well, be promptly transported from the depot of the company to the depot of the carrier at said junction point upon and under those certain terms and conditions hereinafter set forth.
“1. The contractor shall promptly and safely transport, by proper and safe conveyance, any and all baggage, including property checked as baggage, as well as passengers, immediately following arrival of same at depot of the company at said junction point, and free of cost to the company or to said passengers, respectively, to the depot of the carrier, thereat, if and when the company shall have transported same to its said depot on a through ticket or tickets reading to any place or places on or reached via the line of the carrier. . . . The contractor shall pay to the company monthly, in advance, on or before the 1st day of each calendar month of the full term hereof, compensation computed at the rate of one hundred twenty dollars ($120.00) per annum; and, also the contractor shall, when and as requested so to do by the superintendent of the company or his authorized representative, transfer any and all supplies, including stationery and small office equipment, for the company between each depot and the general offices of the company in said city of Coffeyville.
“(3) A. The company also hereby grants to the contractor, during the full term of this agreement,, the right and privilege of soliciting patronage, for the contractor’s cab and baggage service, on the passenger trains of the company entering the city of Coffeyville, said solicitation to include the taking up and re-checking of passengers’ baggage by duly authorized representatives of the contractor, such representatives, when and while engaged in such solicitation, to be transported, as one of the considerations of this agreement and without further charge, . . . provided, however, that each and all of said things, so to be done by the contractor as well as by said representatives under this paragraph, shall be done at such time or times and in such manner as may be designated by and be satisfactory to the superintendent of the company or his authorized representatives, and as may be required by ordinances of said city of Coffeyville and the laws of the state of Kansas, as well as the state of Oklahoma.
“B. The contractor, at its sole cost and risk, shall provide uniformed solicitors to canvass such of said passenger trains as may be designated by said superintendent, . . . and shall require said employee at all times to be courteous and polite to its patrons, both upon the premises of the company ...
“4. This agreement shall be held to grant unto the contractor the privilege, exclusive as against all other and different persons as well as corporations so far as the company may lawfully so contract (a) to bring and stand busses, carriages, motors and other and different vehicles at such place or places, on as well as adjacent to the company’s station premises in Coffeyville. . . .”
The defendant’s contractor, David Kohler, failed to pay the monthly sums stipulated in the contract, and this action was begun by the railway company for their collection. Defendant answered, admitting the execution of the contract, but set up as his principal defense an ordinance of the city of Coffeyville, which among other matters regulating the standing and running of hacks, carriages and omnibuses in Coffeyville, provided :
“Section 3. That the' owner, driver, or person in charge of any hack, omnibus or carriage for hire, shall be under the control and direction of the chief of police, or police, while at any railroad depots in said city for the purpose of delivering passengers or baggage and attending trains, and such owners, drivers or persons in charge shall occupy such place oand stands at such depots as may be ordered and fixed by the chief of police or police and as may be most convenient for the public. It shall be-unlawful for any owner, driver or person in charge of any hack, omnibus, or carriage for hire to willfully disobey any such orders and directions made by the chief of police or the police.”
Defendant alleged that pursuant to this ordinance the chief of police had designated certain places upon the company’s depot grounds mentioned in the contract to others than himself, thereby depriving him of the exclusive right attempted to be granted to him by the contract, and that the contract was without consideration, and in violation of the said ordinance, against public policy, lacked mutuality, and was void. He further answered that upon several occasions subsequent to the execution of such contract, he had attempted to exercise the rights and privileges granted and was prevented from so doing by the chief of police, and that such prevention operated as a discharge of the contract. He also alleged that certain places had been designated by the agent of the railroad company upon the station grounds where he was permitted to maintain exclusive cab-stand privileges by the railroad company,- which places had not been so designated by the chief of police, and that he was forcibly prevented from so exclusively occupying and using such depot grounds by the chief of police.
The other defendants were sureties on Kohler’s bond and their answers were to the same effect.
The case was tried upon an agreed statement of facts to which was attached a plat of the depot grounds. The execution of the contract was conceded; also that Kohler had been arrested and fined $10 in the police court for standing his cab on the depot grounds as privileged by the contract but at a place not designated by the chief of police, and that no appeal had been taken from the police court judgment. It was also stipulated that the plaintiff had permitted the general public to use its grounds for receiving, discharging and taking up passengers and baggage and had permitted vehicles to be driven thereon by the public. It was further admitted—
“That said defendant Kohler has been denied the exclusive right to occupy said depot grounds by the chief of police of the city of Coffeyville, but such denial on the part, of the authorities of the city of Coffeyville was not acquiesced in or agreed to by the plaintiff in this case.”
Laying aside for the moment the consideration of the Coffey-ville city ordinance and the interference of the chief of police, the contract between the plaintiff and defendant was one to facilitate the transportation of passengers and baggage between the different railroads in Coffeyville. Through traffic arrangements between different railroads is in the public interest, and where the expense is not large and the want of it is seriously detrimental to the public such arrangements have sometimes been compelled by law. (The State, ex rel., v. Railroad Companies, 85 Kan. 649, 118 Pac. 872.)
The exclusive privileges conferred by the contract d'd not impair or diminish any rights of the general public. The public was in no way discommoded by the privilege of permitting the defendant to board its passenger trains and negotiate with passengers for the expeditious transportation of their persons and baggage to other railway depots or elsewhere in Coffey-ville. But while one hack and bus line might be granted such a privilege, it would create an intolerable situation to have several rival and competing hackmen going through the trains on a similar errand. Doubtless the state, and perhaps the city, could regulate the service governed by such a contract, to make certain that the public should be adequately and conveniently served and that the charge exacted for such service be limited to a reasonable figure. And this would be true also in the matter of the privilege of keeping a cab stand on the station grounds.
But a wholly different question arises when we have to consider a positive interference with such a service by city authority. These grounds are not public property. They are the private property of the railway company, and so long as free and convenient access to the railway depot was not impaired the railway company could lawfully grant to a cabman an exclusive privilege to stand his cab at an agreed or designated point on its own property. And certainly it could not be compelled, at least without a statute, to grant cab stands to everybody. We note on the map attached to the agreed statement of facts that on the railway property there are located an express office and space for Van Noy’s news-and-notions agency. How came these concessions to be thus established? Undoubtedly by contract and exclusive concessions obtained from the landowner, the railway company. Could it be said that, without a statute, the city of Coifeyville could authorize its chief of police to order the express office to be moved to some other part of the railway company’s property, or to grant equal privileges to other express companies to permanently occupy space on the railway property? (4 R. C. L. 593, 594.) If there is any difficulty in solving the present problem we are largely relieved of that task by the supreme court of the United States, which has had to consider a substantially similar exclusive privilege granted by the Pennsylvania Railroad Company to the Parmalee Transfer Company at the union passenger station in Chicago. (Donovan v. Pennsylvania Company, 199 U. S. 279.) That court held that so long as the public was adequately and conveniently accommodated the railway company could “make arrangements with, including the granting of special privileges to, a single concern to supply passengers arriving at its terminals with hacks and cabs, and it is not bound, at least in the absence of valid state legislation requiring it to do so, to accord similar privileges to other persons, even though they be licensed hackmen.” (Syl. ¶ 1.)
In the opinion the court said:
“Although its functions are public in their nature, the company holds the legal title to the property which it has undertaken to employ in the discharge of those functions. And as incident to ownership it may use the property for the purposes of making profit for itself; such use, however, being always subject to the condition that the property must be devoted primarily to public objects, without discrimination among passengers and shippers, and not be so managed as to defeat those objects. It is required, under all circumstances, to do what may be reasonably necessary and suitable for the accommodation of passengers and shippers. But it is under no obligation to refrain from using its property to the best advantage of the public and of itself. It is not bound to so use its property that others, having no business with it, may make profit to themselves. Its property is to be deemed, in every legal sense, private property as between it and those of the general public who have no occasion to use it for purposes of transportation. ...
“Applying these principles to the case before us, it would seem to be , clear that the Pennsylvania Company had the right — if it was not its legal duty — to erect and maintain a passenger station and depot buildings in Chicago for the accommodation of passengers and shippers as well as for its own benefit; and that it was its duty to manage that station so as to subserve, primarily, the convenience, comfort and safety of passengers and the wants of shippers. It was therefore its duty to see to it that passengers were not annoyed, disturbed or obstructed in the use either of its station house or of the grounds over which such passengers, whether arriving or departing', would pass. It was to that end — primarily as we may assume from the record — that the Pennsylvania Company made an arrangement with a single company to supply all vehicles necessary for passengers. We cannot say that that arrangement was either unnecessary, unreasonable or arbitrary; on the contrary, it is easy to see how, in a great city and in a constantly crowded railway station, such an arrangement might promote the comfort and convenience of passengers arriving and departing, as well as the efficient conduct of the company’s business. The record does not show that the arrangement referred to was inadequate for the accommodation of passengers. But if inadequate, or if the Transfer Company was allowed to charge exorbitant prices, it was for passengers to complain of neglect of duty by the railroad company and for the constituted authorities to take steps to compel the company to perform its public functions with due regard to the rights of passengers. . . .
“Here the defendants press the suggestion that they are entitled to the same rights as were accorded by special arrangement to the Parmalee Transfer Company. They insist, in effect, that as carriers of passengers they are entitled to transact their business at any place which, under the authority of law, is devoted primarily to public uses — certainly at any place open to another carrier engaged in the same kind of business. But this contention, when applied to the present case, cannot be sustained. The railroad company was not bound to accord this particular privilege to the defendants simply because it had accorded a like privilege to the Parmalee Transfer Company; for it had no contractual relations with the defendants, and owed them as hackmen no duty to aid them in their special calling. . . In maintaining a highway, under the authority of the State, the first and paramount obligation of the railroad company was, as we have already said, to consult the comfort and convenience of the public who used that highway. To that end it could use all suitable means that were not forbidden by law. . . .
“This question is not controlled by any statute of Illinois. . . . It does not appear that the State has undertaken by any statute to compel the railroad company to share the use of its depot grounds and station with hackmen and cabmen seeking to use them only to solicit custom for themselves. Whether such a statute would be valid, we need not now consider or determine.” (pp. 294-298.)
The supreme court of Michigan has considered the same question and reached a similar conclusion. In Dingman v. Duluth, etc., R. Co., 164. Mich. 328, 32 L. R. A., n. s., 1181, 1184, it was said:
“To give to section 6266, 2 Comp. Laws [1897], the construction contended for by plaintiff, would result in depriving the public of one of the most valuable privileges incident to public travel. That the privilege of dealing with a competent and trustworthy baggage agent is a valuable one seems too obvious for argument. The" traveling stranger is often ignorant of the location of termini or his destination, and the best means of transportation to and from the same. He is entitled to receive this information, and to receive it from one whose position upon the train is a guaranty that he is responsible and may be safely intrusted with the person or property of the traveler. In large cities, scores, nay hundreds, are- engaged in the same business as is the plaintiff. To compel the railroad company to transport all persons who desired to solicit the transportation of passengers or baggage would of necessity result in the refusal of the company to carry any, and, as a consequence, the denial to the traveling public of a service of the greatest possible importance.
“But suppose the railroad, instead of refusing to carry all, permitted two or more baggage agents upon its trains. The conditions which would result from such a course would at once become intolerable. Rival agents would besiege the passenger for his business to his infinite annoyance, and when he finally made a selection he would have no means of knowing that he had chosen either a competent or responsible agency for its transaction. It may be urged that the passenger is subjected to the same annoyance upon his arrival at his destination. If this is so it is because he voluntarily transacts his business at the depot, rather than upon the train. But the conditions at the depot are different from those upon the train. At the depot the competition for his business is ordinarily duly regulated and under the supervision of the police, a safeguard entirely wanting upon trains.” (p. 330.)
The trend of all the later decisions seems to be to the same effect (10 C. J. 657), although such was not the earlier view. (10 C. J. 659.) Defendant cites our own case (Ottawa v. Bodley, 67 Kan. 178, 72 Pac. 545), as opposed to this view. That case was decided before Donovan v. Pennsylvania Company, supra, by the supreme court of the United States. Moreover, in the Bodley case there was no question of contractual rights between the railway company and the hackman. If Bodley had been able to justify his assumption of cab-standing privileges on railway property not necessary for the convenient use of the general public a different result might have been reached in his appeal. And this brings us to a consideration of the Coffeyville ordinance. Doubtless, as said in the Bodley case, a city has full authority to regulate railroad depots and depot grounds as far as concerns the needs and convenience of the general public who have business with the railway company. It is also correct that a city may establish reasonable regulations touching the conduct of hackmen who collect about the depot to solicit patronage, and the power to designate places for the rival hackmen — all of whom have equal rights and no more — may properly be vested in a police officer. But such considerations do not justify disregard of a private contract between a hackman and the railway company for the exclusive privilege of standing his hack upon a portion of the railway company’s property which is not otherwise needed for the convenient and efficient discharge of the railway company’s corporate duties of transportation. In the absence of valid and specific statutory authority the city cannot lawfully interfere through its chief of police or otherwise with the reasonable use of the concession granted by the plaintiff to the defendant hackman. In Mader v. City of Topeka, 106 Kan. 867, 189 Pac. 969, the court had to consider other phases of this general subject, but in that case the city ordinance recognized certain private rights of ownership held by the railway company, while the city ordinance in the present case seems to overlook those rights.
If the city has transcended its authority, or the chief of police, through misinterpretation of the ordinance, has transcended his powers or acted arbitrarily in disregard of the defendant’s lawful contractual rights, adequate pursuit of redress at law or equity by the defendant would not have failed him. Neither the ordinance nor the interference of the police with the defendant’s lawful exclusive privilege was a defense in the present action. This conclusion necessitates a reversal of the judgment, and it is so ordered.
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The opinion of the court was delivered by
Johnston, C. J.:
John J. Gaffney was struck by a motor car of the defendant in the railroad yards at Wichita, and from the injuries suffered he died. His widow brought this action alleging that his injuries and death were the result of defendant’s negligence in running the motor car at an excessive rate of speed; a failure to give proper warnings of its approach and also in failing to slacken the speed after discovering that he ■ was in a position of danger. The defendant’s answer was a general denial and an averment that the death of Gaffney was the result of his contributory negligence in recklessly stepping upon the track in front of a moving train without looking or listening or taking any precautions for his own safety. Upon the conclusion of plaintiff’s evidence, the defendant’s demurrer thereto was sustained and of this ruling complaint is made.
We may assume, as counsel have done, that the negligence alleged against the defendant was established, and the only question left for decision is: Did the evidence of plaintiff show contributory negligence of Gaffney, which barred a recovery? He was foreman of a switch crew of the Kansas City, Mexico & Orient Railway company, which had a track across the tracks of the defendant near the place of the accident. At that point there is a tower-house and the person in charge of it controls the movement of trains and cars in that part of the yard. When Gaffney ran his train up to this crossing he stopped to await permission to cross and also to place in or receive from an interchange box near defendant’s tracks, slips or orders for the transfer of cars from one railroad to another. It appears that he left his engine and started forward to the interchange box, and in doing so had to pass over and across the tracks of the defendant. The accident occurred about 7 p. m. on a cloudy November night, and darkness had come. He was carrying a lantern and while going along or across the track he was struck by the motor car which was traveling at an estimated speed of thirty miles an hour. There was a rule of the terminal company which had control of the yards, limiting the speed of trains in the yards to fifteen miles per hour. The motor car of defendant had a headlight and that part of the car back of the motor in which passengers sat was also lighted. One witness said that there were no obstructions on the track of the defendant in the direction from which the train was coming for a mile south of the crossing and the headlight could have been seen for that distance, but that probably a person could not have ■told that it was a headlight on an approaching train at that distance. Another said it could , only have been seen about a quarter of a mile. A witness for the plaintiff, who was one of the crew waiting for a signal from the tower saw Gaffney going toward the interchange box and at the same time saw the headlight of the approaching motor car when it was 500 feet from the crossing and doubtless it was equally observable to anyone who was near the tracks and looking in that direction. We are forced to the conclusion that in stepping in front of the moving motor car without taking precautions for his safety Gaffney was guilty of contributory negligence. It is said that the night was dark and also that the headlight was not as bright as some other headlights or as it would have been on other nights, but plaintiff’s testimony shows beyond question that it could have been seen without difficulty if he had looked for the approaching car. There was no direct evidence that he did look in the direction from which the car was coming just before he stepped upon the track, but it was his duty to look before he put himself in a place of known danger, and if he had looked he certainly would have discovered the peril of going upon the track. It must be presumed that one having thé capacity to see must have seen that which was within the range of his vision. (Young v. Railway Co., 57 Kan. 144, 45 Pac. 583.) Under such circumstances one who can see and learn of the danger if he looks, is held to have knowledge of the danger even if he does not look. Ignorance of an obvious and discoverable danger is no excuse as to one having the full enjoyment of his faculties of seeing and hearing, who recklessly steps upon a railroad track in front of a moving train. Gaffney was well acquainted with the yards and the perils of passing over the tracks. He knew that trains and cars were continually moving backwards and forwards over the tracks. He had experience as well as the capacity to understand the perils to be encountered in the yards, and under the circumstances must be held to have had knowledge of the dangers that were so obvious and patent. The failure of a person to take precautions for his own safety in such a place bars a recovery for injuries that he should have anticipated and avoided.
In Limb v. Railroad Co., 73 Kan. 220, 84 Pac. 136, it was said:
“It has been frequently decided by this court that persons may not recklessly place themselves in a place of danger and then recover damages because of injuries received thereby.” (p. 223.)
Other cases having application to this one are: U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529 ; A.T. & S.F. Rld. Co. v. Priest, 50 Kan. 16, 31 Pac. 674; Libbey v. A. T. & S. F. Rly. Co., 69 Kan. 869, 77 Pac. 541; Railroad Co. v. McMinn, 72 Kan. 681, 84 Pac. 134; Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680; Himmelwright v. Baker, 82 Kan. 569,109 Pac. 178; Crane v. Railway Co., 89 Kan. 472, 131 Pac. 1188.
It is said that since no witness testified as to whether or not Gaffney looked for an approaching car, that love of life, the instinct of self-preservation and the known disposition of men to avoid injury, give rise to the presumption that he exercised due care.' This presumption, “however, was overthrown by plaintiff’s own evidence and therefore cannot be indulged. (Dewald v. K. C., Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101; Carlson v. A. T. & S. F. Rly. Co., 66 Kan. 768, 71 Pac. 587.)
Finding no error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the Illinois Steel Bridge company against W. C. Wayland to recover $410.00, a balance alleged to be due on the sale of four bridges. A verdict for the amount claimed was returned by the jury, but upon the motion of the defendant the court granted a new trial, and of this ruling complaint is made.
In its petition plaintiff alleged that the defendant had purchased four bridges, two of them being of a 50-foot span at $811.00 each, and two of 30-foot span at $411.00 each; that defendant had paid for all of them except one of the 30-foot bridges for which he still owed $410.00. In his answer the defendant admitted the purchase of the four bridges at the prices named and alleged that he had fully paid for them. He pleaded that he was unable to give the date of each payment made, but that in July, 1917, he received a letter from plaintiff demand ing $416.01 which it claimed was the balance due upon the bridges; that he immediately sent his check for that amount on which was written “paid in full for bridge steel,- for Washington county, Kansas,” which check the plaintiff cashed, and in a letter acknowledged the receipt of the check, and that it was payment in full of the balance due on the account. Plaintiff .in its reply admitted the cashing of the check and the delivery of the receipt in full, but alleged that it occurred through a mistake, in that plaintiff had the impression that one of the smaller bridges was to be paid for by Washington county, and therefore it had entered a charge of $410.00 against that county, that the other three bridges, together with some rivets purchased by defendant, were charged to defendant, and that the $416.01 was the balance of the charges made against defendant as the account was kept, but that it afterwards learned that the county was not under obligation to pay for the fourth bridge. That item, it is alleged, should have been charged to the defendant, which he had never paid, and the receipt in full was given through this mistake.
On the motion for a new trial it was contended by the defendant that the court erroneously placed the burden of proof upon him as to payment of the balance claimed, and especially as to the matter pleaded relating to the mistake made in -the giving pf the receipt. The new trial was granted, as the court stated, upon the ground, “that the instructions placing the burden of proof upon the defendant to prove the allegation of payment, are wrong.” The defendant insists that the reply setting out the receipt acknowledging payment in full and explaining that it was made through a mistake was matter in avoidance and that the burden of sustaining that allegation rested upon the plaintiff. He cites Meeh v. Railway Co. 61 Kan. 630, 60 Pac. 319; Knox v. Pearson, 64 Kan. 711, 68 Pac. 613; Cottom v. Insurance Co., 65 Kan. 511, 70 Pac. 357; 30 Cyc. 1226.
The view of the court is that no error was committed in imposing the burden of proof of payment on the defendant. It was admitted that he purchased and received the four bridges at the prices named and was responsible for the price of all of them. He alleged that full payment of the price had been made, and it is conceded that the burden of proving payment is ordinarily upon the one who alleges it. It is held by the court that the matter of the receipt was only an incident of the payment which the defendant was required to establish by his evidence. Payment was an affirmative fact and the main issue in the case, and proof of it was vital to the only defense advanced by the defendant. The receipt and letter of acknowledgment were only items of evidence tending to show the leading fact of payment, and the burden of establishing the defense did not shift from one side to the other as the trial progressed but rested upon the defendant throughout the trial. (Mitchell v. Mitchell, 18 Weekly Notes of Cases [Pa.], 439; Shrader v. U. S. Glass Co., 179 Pa. St. 623; Terryberry v. Woods, 69 Vt. 94.) The mistake in the giving of a receipt is not to be treated as matter of avoidance which changes the burden of proof. The production of the receipt may have shifted the weight of the evidence, but it did not shift the burden of proof of payment. In Terryberry v. Woods, supra, the defendant alleged payment of a claim and introduced a receipt as evidence of payment. He asked the court to charge the jury that the receipt was prima facie proof of payment and that the burden was upon the plaintiff to show that she had not received the amount mentioned in the receipt. This request was refused and the supreme court of Vermont approved the ruling, saying:
“The burden of proving an allegation remains with the party making it. The weight of evidence may vary from side to side as the trial proceeds, but the burden of proof never shifts.” (Syl.)
In instructing the jury the court did not overlook the evidential effect of a receipt. The jury were told that:
“A check marked ‘payment in full’ followed by a letter acknowledging the receipt of the check as payment in full is prima facie evidence of payment in full, yet it is not conclusive and is always open to explanation.”
The court further instructing on the same subject said:
“If you find from the evidence, by a preponderance thereof, that the acknowledgment of payment in full in this case was erroneous and made by mistake, you are not concluded by the fact that payment in full was acknowledged, but may find for the plaintiff if you find that said acknowledgment of payment was erroneous, and that the defendant is still indebted to the plaintiff. But on the contrary, if you find from the evidence by a preponderance thereof, that the payment in question was payment in full and that said acknowledgment of payment was not made erroneously, then your verdict should be for the defendant.”
By these instructions the jury were advised as to the effect of the receipt which the defendant had offered in an effort to prove payment. The issue of whether payment had in fact been made was to be determined not upon the evidence of the receipt alone, but upon all the evidence of both parties, and it is the view of the court that upon the issue of payment the burden still rested upon the defendant, and that no error was committed in giving the instruction that:
“The defendant having pleaded payment, the burden of proof is upon him to prove the alleged payment by a preponderance of the evidence.”
It is concluded that the court erred in granting a new trial on the ground assigned, and therefore the order is reversed with directions to enter judgment for plaintiff upon the verdict of the jury.
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The opinion of the court was delivered by
West, J. :•
This action is one of the outcroppings of the remarkable series of transactions recited in Weigand v. Shepard, 105 Kan. 405, 184 Pac. 722.
The probate court of Greeley county allowed the claim of Clement L. Wilson against the estate of Charles Weigand for $1,000 on July 23, 1915, the same day the administrator was appointed. On September 17, 1917, the administrator made his final settlement which showed that there was left out of the entire estate only $298.39. On July 17, 1917, the plaintiff filed his petition in the probate court to vacate the allowance of claims of Clement L. Wilson against the estate. To this petition Wilson demurred, and on August 18,1917, the probate court sustained the demurrer. On September 8, 1917, the plaintiff served notice of appeal from that ruling, his appeal bond being filed and approved September 10, 1917. After-wards the plaintiff, through his attorney, received and receipted for the amount found due by the probate court. January 15, 1918, Wilson, in the district court, moved to dismiss the appeal, and on January 21,1919, this motion was overruled, and at the same time a demurrer to the petition to vacate the judgment of allowance was overruled. The notice of appeal recites only the judgment rendered on January 21,1919, “overruling the motion of said defendant or appellant to dismiss the appeal from the probate court,- filed by you in the said action.” Hence, the ruling on the demurrer is not before us for consideration.
Counsel for the plaintiff contend that the order overruling the motion to dismiss the appeal is not appealable. The statute provides for an appeal from a final order. (Civ. Code, § 565, Gen. Stat. 1915, § 7469.) A final order is one affecting a substantial right in an action, when it in effect determines the action and prevents a judgment. (Civ. Code, § 566, Gen. Stat. 1915, § 7470.) Of course, the mere refusal to dismiss an appeal does not have either of these effects. .(Edenfield v. Barnhart, 5 Kan. 225; Dolbee v. Hoover, 8 Kan. 124; Anderson v. Higgins, 35 Kan. 201, 10 Pac. 570; Vail v. School Dis trict, 86 Kan. 808, 122 Pac. 885; Ousley v. Osage City, 95 Kan. 254, 258, 147 Pac. 1130.)
Therefore, this court having no jurisdiction in the matter presented, the attempted appeal is dismissed.
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The opinion of the court was delivered by
West, J.:
The plaintiffs made a gas and oil lease to the assignor of the defendant, providing among other things that unless a well was begun within six months the rental of a dollar an acre should be paid in advance or the lease should become void. No well was begun and the rental was due on April 17. Under the lease this might be paid direct to the plaintiff, Susan Gasaway, or deposited to her credit in the Virgil State Bank. On the 17th of April, 1919, the defendant mailed a check to the Virgil State Bank for the proper amount, payable to its order, a notation thereon indicating that it was the rental on the land covered by the lease of seventy acres to April 17, 1920. This check was not received by the bank until the morning of April 18. The bank was unable to determine to whose credit the check should be placed and telegraphed the defendant, and it was not in fact placed to the plaintiff’s credit until April 19th. The only way for mail to come from Emporia to Virgil was on the train leaving about seven o’clock each day. From a remark in one of the briefs it would seem that this train goes at seven a. m.
The court rendered judgment for the plaintiffs, canceling the lease and allowing them $100 damages and $75 attorneys’ fees. The defendant appeals, claiming that the judgment is not supported by the facts, and that the latter do not show the plaintiffs to be entitled to cancellation. Of course, the damages and attorneys’ fees arise from the defendant’s failure to cancel when the demand was made to do so, and the real question is whether or not the court erred in ordering cancellation.
While forfeitures are abhorred by the law, this is not strictly a forfeiture, but a mere holding of a party to the contract it has made. There was no need of delaying the payment, and the failure to remit in time was not chargeable to the plaintiffs, and the delay left the defendant in the attitude of calling on the plaintiffs to make or recognize a different contract from the one the parties had voluntarily made. No equitable feature arises by way of money expended, as in Kays v. Little, 103 Kan. 461, 175 Pac. 149, but the circumstances are very similar to those involved in Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527.
The trial court decreed cancellation, and it bannot be said that this ruling was an abuse of discretion or otherwise erroneous.
The judgment is affirmed.
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The opinion of. the court was delivered by
WEST, J.:
The defendant appeals from a judgment holding it liable for the amount of a check cashed by it.
The plaintiff sent its agent, Sprague T. Haskell, out to sell weather strips and authorized him to contract with Mrs. S. J. Ellis to supply strips for thirty-six openings. * The contract closed with the following words:
“Terms: Unless specially written herein are cash on completion of work.
Respectfully submitted July 1st, 1912, In Duplicate.
Chamberlin Metal Weatherstrip Co.
By Sprague T. Haskell.”
Haskell, who took several other orders in the vicinity, filled this for Mrs. Ellis and received her check for $134 on the defendant bank, receipting therefor in the following words on the back of the contract:
“July 16, 1912. Received of Mrs. S. J. Ellis check for one hundred and thirty-four dollars in full of this contract.
Chamberlin Metal W. S. Co.
By Sprague T. Haskell.”
The collection manager of the company testified that Haskell was not authorized to collect any money from Mrs. Ellis for him, or to sign or indorse any checks for the company, or ever permitted to do so. It seems that the money never reached the company. The secretary and treasurer testified that he never authorized Haskell to collect money from customers, and that he never had any authority to take money from Mrs. Ellis. It was agreed that Mrs. Ellis gave the check to Haskell, who indorsed it—
“Chamberlin Metal Weatherstrip Co.
By Sprague T. Haskell,”
and presented it to the bank and received payment. The company wrote to the bank's attorney that a review of the correspondence failed to show that Haskell had any authority to collect accounts—
“The contract also states that remittances be sent direct to either the St. Louis office or Detroit office.”
Later, he wrote that he took it for granted that the Ellis contract was on the form containing this clause. As a matter of fact, the contract contained no such clause whatever..
The cashier of the defendant bank testified that Haskell came in and talked to him about various jobs he was doing in the vicinity; that he was around there about sixty days; and that he, the cashier, knew of no one else connected with the company. There was testimony of other witnesses to the effect that Haskell was the only man in the neighborhood doing business for the company.
The theory of the plaintiff is that Haskell had no authority to indorse the check and therefore the bank paid it to him at its peril and must pay it over again. It is plain that Haskell was the agent of the company, and the only one in the vicinity of Pleasanton who had any connection with the company and was acting on its behalf in contracting for weather strips, and that the contract with Mrs. Ellis specifically provided for cash payment upon completion of the work, and bore no sort of indication that such payment could be made to anyone other than Haskell, or at any place except Pleasanton. It is equally clear that had Haskell collected the cash from Mrs. Ellis and absconded with it the company could not look to her for payment over again. So the one question is whether or not the weatherstrip company can send an agent into a neighborhood with material and authorize him to contract for and to carry out contracts for weather strips, payment to be made in cash upon completion of the work, and then when he takes a check instead of cash and indorses it as in this case, the bank whose cashier knows that he has been doing this sort of work for the company for several weeks, and which honors the check must lose rather than the company whose agent has failed to remit. There is certainly nothing in the elements of justice and fair dealing to lend support to the plaintiff’s contention, and unless some settled rule of law places the loss on the bank, it should fall on the company whose agent seems to have played it false, and not on the innocent party whose check was the mere instrument or conduit by and through which Mrs. Ellis paid for the work on its completion.
When the case was first here (Chamberlin Co. v. Bank, 98 Kan. 611, 160 Pac. 1138), it was on an objection to testimony undér the petition which alleged that Haskell had no authority to indorse the check and that the indorsement was a forgery, and that he had no authority to make collection on the plaintiff’s account. The bank demurred, and after its demurrer was overruled, it answered by general denial. After the opening statements of counsel in harmony with the pleadings, an objection to the introduction of testimony was sustained. The general rules of the law merchant set forth in that opinion are correct, but as already indicated they do not solve the problem now presented.
This time in the court below an agreed statement of facts was offered in evidence, which covered nothing necessary to be noticed now. The company relies on Vacuum Cleaner Co. v. Bank, 101 Kan. 726, 168 Pac. 870, as decisive of this case. But there we read:
“It is said that Berryhill was held out as the plaintiff’s agent, and that authority to indorse the plaintiff’s name on the cheek should he implied. The evidence was that Berryhill installed a vacuum cleaner in the home of C. E. Roth — made the contract, did the work, and collected the price — and the defendant knew these facts. The evidence- further disclosed, however, that Berryhill had made a contract in his own name to sell Roth a vacuum cleaner not manufactured by the plaintiff. The plaintiff had a machine which had been used for purposes of demonstration. The plaintiff sold this machine at a discount to Berryhill, who used it to fill his contract with Roth. Consequently Berryhill did not act for the plaintiff in any capacity in the Roth transaction.” (p. 727.)
True, it was further said that even if Berryhill had the authority to install and take checks for the price, the authority to indorse could not be implied, reference being made to 2 C. J. 636. In this text it is said that the most comprehensive grant in general terms of power to an agent does not include authority to indorse commercial paper—
“Unless the exercise of such power is so necessary to the accomplishment of the agency that such intent of the principal must be presumed in order to make the power effectual.”
Also, that mere authority to receive negotiable paper carries with it no power to indorse—
“As the receipt of the paper accomplishes the purpose of the agency, and hence exhausts the power. . . .” (p. 637.)
Following this the author says:
“Much must depend upon the position of the agent and the circumstances of the case, and the agent’s authority to execute or indorse commercial paper will be presumed whenever such power is reasonably necessary to effectuate the main object of the agency.” (p. 638.)
This is not a case involving the mere question of an agent’s authority to indorse commercial paper for his principal, because the agent’s power would ordinarily include no such authority. But here the company sent its man out to a distant state with full authority to contract for weather strips, to fur - nish the material and do the work, or to use the material and do the work, and sent him with a contract which expressly provided for cash payment upon completion of the work. It was not the duty of Mrs. Ellis to address a letter to the company’s home office to know where it desired her to make this payment. The only way she knew the company was through its agent contracting to do what she had contracted to have done. Certainly, on completion of the work, had she refused to pay him cash, he could have treated such refusal as a determination to breach the contract she had made. On the contrary, had she promptly paid him the cash there could be no question that her relations with the company had thereby ended. For all practical purposes in the vicinity of Pleasanton, Haskell was the company. Now, instead of handing him the cash as she might have done and which he might have received and thereby bound his company, she handed this agent her check — an order to pay some of her money deposited there —on the local bank where he had frequently called and where it was known he was handling this business in that vicinity. By simply taking the check to the bank and receiving cash on it he was in fact receiving “cash on completion of the work,” the indorsement being a mere incident to and instrument for completing this simple operation.
The bank was fully justified in assuming that a reputable company would not clothe its agent with authority to go to a state far distant from its residence to procure customers to sign a formal contract authorizing him to use the material belonging to it and do the work agreed upon to be paid for in cash on completion, without expecting him to collect such cash in the absence of any agreement or restriction as to its payment to any other person or at any other place. The mere use of the check as a ready means of collecting cash is so incidental and so natural that for the bank to have refused payment would have amounted to an imputation upon the commercial sanity or honesty of the concern which sent out its agent thus clothed.
This doctrine suggests no new rule of law. In Hodgson v. Barrett, 33 Ohio St. 63, it was held:
“Where payment is made by a check, drawn by the purchaser on his banker, this is a mere mode of making a cash payment, and not the acceptance of a security.” (Syl. ¶ 3.)
In National Bank v. Old Town Bank, 112 Fed. 726, the legatees and distributees of an estate employed a Chicago lawyer to represent them in the administration and settlement, and to receive the amounts coming to them as distributees. He retained a law firm to assist him, and the executors paid to this firm certain specified legacies which were remitted to this employee and by him paid to the persons entitled. Later, he procured receipts and forwarded them to the firm who delivered them to the executors. The firm deducted the total amounts of the fee charged, drew their checks to the employee for his portion and drew checks for amounts due certain distributees payable to their order and forwarded such checks to the employee, who indorsed them in the name of his client as attorney and deposited them in the bank to his credit. The bank forwarded them for collection to the defendant, which collected through the clearing house, and subsequently trouble arose between the parties involving the effect of this indorsement. It was held by the circuit court of appeals of the seventh circuit that the attorney, being responsible to his client for the money collected, and being the only person authorized by them to receive, had power as attorney to indorse the checks for collection and to collect them. In the opinion the court said, quoting from Mr. Mechem:
“ ‘Authority to do a given act carries with it an implied authority to do those things which are necessary in order to accomplish the main end, and what is necessary must be determined in many cases by reference to the particular facts.’ ” (p. 728.)
Sprague & another v. Gillett & another, 9 Met. (50 Mass.) 91, involved this question: The joint owners of part of a vessel authorized another owner to purchase their proportion of the outfit for the vessel, but did not furnish him with funds. He bought on credit of six months,, and gave a note as agent of these joint owners who, not knowing that he had purchased on credit, paid him the amount of the purchase. The seller sued the joint owners and was held entitled to recover. In the opinion it was said:
“That he was not in terms expressly so authorized is admitted; but he was authorized to make the purchase, and no funds were advanced to him, to enable him to purchase for cash. This, by implication, unquestionably authorized him to make the purchase on the defendants’ credit. When an agent is authorized to do an act- for his employer, all the means necessary for the accomplishment of the act are impliedly included in the authority, unless the agent be in some particular expressly restricted.” (p. 92.)
The supreme court of Virginia, in Whitten v. Bank of Fincastle, 100 Va. 546, held that—
“The power to make or endorse negotiable instruments may be implied as a necessary incident of powers expressly conferred. Where an entire business is placed under the management of an agent, the authority of the agent is presumed to be commensurate with the necessities of the situation. He has implied authority to do whatever is ordinarily incident to the conduct of such business, whatever is necessary to the efficient execution of the duties, or whatever is customary in a particular trade.” (Syl. ¶3.)
One of the executors of an estate had been given a power of attorney by his mother clothing him with authority “for the transaction generally and particularly of all my business.”, {p. 548.) Acting under this he executed the promissory note sued on which was presented to the defendant bank, and by it discounted and the proceeds passed to the credit of the mother. The lower court held the estate of the executor liable, and this ruling was reversed by the supreme court, which remanded the cause, saying—
“The court should then enquire more particularly into the circumstances attending the execution of the note in question, and the disposition that was made of its proceeds. If it was passed to the credit of M. M. Godwin and used in the purchase of any part of the estates in her possession at the time of her death, it is but proper that the bank should be allowed to appropriate to its debt whatever was purchased with its proceeds. Enquiry should also be made into the power of James Godwin to bind the estate of M. M. Godwin by a negotiable note. The power to make or endorse negotiable instruments may be implied as a necessary incident of powers expressly conferred.” (p. 550.)
This decision was approved and followed by the supreme court of New York in Porges v. United States Mortgage & Trust Co., 135 App. Div. 484, holding that under a power of attorney to sell or dispose of certain property, to accept in payment cash or other property, to sell the property so received, and with the proceeds pay off incumbrances, the agent could convert a check received for the property into cash by the indorsement thereof, though the check was made payable to the principal. In the opinion it was said:
“It is true that the power did not in express terms authorize Hoyt to indorse checks drawn to plaintiff’s order, but this we think was necessarily involved. . . . The check was simply a token representing cash. Hoyt had authority to use the cash derived from the transaction, and we think had likewise authority to convert the check into cash, which was the practical effect of depositing it.” (p. 490.)
It is not intended to impair in the least the strength of the rule that a bank must know at its peril that the one to whom it pays indorsed checks had authority to indorse them. (3 R. C. L. 542, § 171.) It is meant only that the bank in this case had sufficient reason to regard the agent as duly authorized, and that the authority with which his employer had actually clothed him carried the authority to collect cash, and the im plied authority to do so by means of the check which he received for his company.
The judgment is reversed, and the cause is remanded with directions to enter judgment for the defendant..
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from negligent delay in transporting cattle to market. The plaintiffs recovered, and the defendant appeals. Negligence was proved, and the only subject for consideration is damages.
The contract of shipment provided that the shipment was not to be made in any particular time, on any particular train, for any particular market, or otherwise than with reasonable dispatch. But for the defendant’s negligence, however, the cattle would have arrived at the Kansas City stockyards on Thursday morning, in time to be fed and watered and placed on the Thursday market, which opened at 8 a. m. and closed at 3 p. m. The cattle did not arrive until afternoon, and it was necessary to hold them over until Friday. On Friday the market was inactive, and they did not sell. In the morn ing a snowstorm occurred, few buyers came into the yards, and but two sales were made of cattle of the same grade. On Saturday the cattle did not sell, and on Saturday night the plaihtiffs shipped them to St. Louis. The plaintiffs claimed damages for shrinkage of the cattle below what they would have weighed had they been delivered at the proper time. This shrinkage continued until the cattle were reshipped on Saturday, and the court instructed the jury that it might allow for loss of weight for the full time. In the brief for the defendant it is said:
“The object of this appeal is to ascertain the extent of the liability of a carrier of livestock for failure to make a certain market, resulting in shrinkage in weight of the cattle on account of being held over; that is to say, for what length of time does such liability for shrinkage continue? Does it continue for as long as the owner of the cattle sees fit to keep them in the stockyards awaiting a favorable market, the cattle decreasing in weight from day to day, or does it end as soon as the owner has had opportunity to place his cattle on sale on a regular market day? This is the question which we submit for decision here.”
The rule governing the controversy was stated as early as 1871, in the case of Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 623. The syllabus reads:
“Upon failure of a common carrier to deliver goods within a reasonable time and in good condition, the rule of damages is the difference between the value of the goods as delivered at the time and place of delivery, and their value at the same place at the time and in the condition they should have been delivered.” (Syl. ¶ 2.)
In the opinion it was said:
“The contract alleged in the petition and proved was to transport cattle from Ogden to state line. It was claimed that through delay in the transportation they had depreciated in value; also, that through the improper and negligent handling of them by the employees of plaintiff in error during their transportation they had suffered injury. In regard to the depreciation by delay in transportation, it is not claimed that cattle were of less value at state line in the evening than in the morning of the 8th of January, but that cattle are constantly shrinking in weight during confinement and transportation in cars, and the longer the time of carriage the greater the shrinkage. No fall of price is claimed, but simply a diminution of quantity. If the jury found these facts against the plaintiff in error, what then became the rule of damages? Unquestionably, the difference between their value at state line and at the time and in the condition of their delivery, and the value they would have had at the same place if transported without delay or injury.” (p. 631.)
The word “value” appearing in both quotations evidently referred to market value. So understood, the rule of damages stated is universally approved.
Some of the customs of the Kansas City cattle market are well understood. Stock-train schedules are arranged accordingly, and shippers and carriers know that if cattle arrive too late for the market on the day of arrival, they cannot be sold, they must be held over, and for all practical purposes delivery is made on the next market day. This court recognized these facts in the case of Railway Co. v. Fry, 79 Kan. 21, 98 Pac. 205. In that case the trial court instructed the jury that the measure • of damages was the difference between market value at the usual time of delivery and market value on the succeeding market day. It was contended the rule of damages should have been stated as the difference between market value at time and place of delivery and market value when delivery should have been made. The court said:
“We do not see any material difference in these statements when applied to the facts of this case. The cattle should, and with proper diligence on the part of the railway company would, have reached Kansas City in time for the market of January 27. They were not delivered until the market of that day had closed. The first opportunity the ' shipper had to sell on the market' at that place was January 28. It may very properly be said, therefore, that the market at which the cattle were delivered was that of the 28th.” (p. 22.)
Taking into account this definition of time of delivery, the rule of the Reynolds case should have been stated to the jury for .its guidance.
The plaintiffs say they were entitled to recover all damages which were the proximate result of negligent delay, and that because the cattle did not sell on Friday or Saturday, recovery should include loss of weight until Saturday night, when the cattle were forwarded to another market. The first proposition is sound, but the second is unsound. While the proof was that on Friday the weather was bad and buyers were few and listless, Friday was a regular market day, the market was open, and trading was done in the kind of cattle the plaintiffs offered for sale. Market conditions are affected by a great variety of circumstances, which no one can anticipate. It might occur on any active market day that some cattle placed in the pens for sale would not be sold. They would still have market value on that day, and whether sold or unsold, the plaintiffs’ cattle had a definite, provable market value per hundredweight on Friday. A carrier engages to do nothing but transport and deliver at the designated market, which may be good or may be poor on the day of delivery. Negligent delay in making delivery may be said to occasion all loss resulting from decline in weight and decline in price sustained before delivery. Delay in making delivery has no causal relation, however, to the state of the market, and when a carrier has made delivery at the designated market in due time for sale in the usual way on a regular market day, it has arrested the consequences of delay. After that, further loss of weight of cattle held over is the result of intervention of a new, independent, and unforseeable factor — fluctuation of the market.
If in this instance there had been proof that Friday was always or usually a poor market day, that cattle placed on the market on that day because of negligent failure to deliver them for Thursday’s market probably would not sell, and that the carrier knew, or ought to have known, that such would be the consequence of its negligence, a different rule would apply. While there was no evidence on the subject, it is quite well known that Friday is a regular market day for fat cattle at the Kansas City market. Packers usually supply themselves so they may keep up their kill until Monday.
While the instruction given was erroneous, it does not appear to have affected the verdict. With the general verdict the jury returned the following special findings:
“No. 9. If you And for the plaintiffs, state how many pounds of shrinkage per head, if any, you find the plaintiffs’ cattle sustained. Ans. 60 pounds.
“No. 10. If in answer to the last previous question you find there was some shrinkage, then state during what period of time said shrinkage occurred. Ans. While the cattle were held in Kansas City.”
Proof of shrinkage was given by days — so many pounds for Thursday, so many for Friday, and so many for Saturday. One witness estimated the shrinkage at 60 pounds per head on the basis of sale on Friday. Other witnesses estimated the shrinkage for the same period at much more, and all the testimony was that it would be much more if Saturday were considered. The court is inclined to the opinion the jury based its finding on the testimony of the witness first mentioned. Finding No. 10 does not necessarily fórbid adoption of the view indicated, because it is indefinite. While it allows for shrinkage within a stated period, it does not assert that an allowance was made for any particular division of the period.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recoup the loss sustained on account of breach of an oral agreement to hold land purchased at sheriff’s sale until the owner could reimburse the purchaser, and thereby obtain the land. A demurrer to the plaintiff’s evidence was sustained, and he appeals.
The land was situated in Oklahoma. The plaintiff permitted foreclosure of a lien and sale of the land, in order to bar an adverse claim. The defendant was interested in protecting an inferior lien. She went to Oklahoma, bought in the land, and then sold it. At the time, the plaintiff was in the army, and his interests were in charge of an agent, Wacker. Pertinent allegations of the petition follow:
“It was agreed by and between this defendant and H. W. Wacker, agent for plaintiff, that this defendant, Esther Kyle, would go to Guymon, Oklahoma, as the agent and representative of this plaintiff, and in his place and in his stead, and in the place of H. W. Wacker, plaintiff’s agent, and bid above-described land in at the sale to be held at that place; that this defendant would hold the certificate of purchase, as agent for plaintiff, until defendant was paid the amount of her bid, and upon the payment of the amount of the judgment against said land, this defendant would assign her certificate of purchase or bid to this plaintiff, so that deed would issue to plaintiff.
“That according to said agreement and understanding, that defendant was to go to Guymon, Oklahoma, and bid said land in for plaintiff, this defendant did go to Guymon, Oklahoma, as the agent of the plaintiff, R. H. Miller, and bid said land in at a sale there held; that this plaintiff relied and acted upon such agreement, and believed and trusted this defendant to carry out the terms of the contract as his agent. . . .
“That this defendant, as agent for plaintiff, in violation of her agreement as such agent, on her return from Guymon, Oklahoma, stopped off at Hooker, Oklahoma, and sold above-described land as her own, and now unlawfully refuses and neglects to comply with her contract with this plaintiff, . . .
“Plaintiff says that defendant had no intention of complying with her contract from the beginning; that she made such agreement and accepted the agency of plaintiff to look after bidding such land in for the purpose of getting title to above-described land and selling it at a profit. . . .
“Plaintiff further says that it was understood and agreed that defendant was to bid as agent for plaintiff, the amount of above-mentioned liens, costs and taxe's against said land.”
Wacker testified for the plaintiff as follows:
“Q. What did she say about going down there to represent Mr. Miller —what did she say? . A. She was going down there to represent, of course, herself in this matter.
“Q. What did you say to her then? A. I asked her, ‘If you buy the land in, will you give Mr. Miller six months to redeem it in?’
“Q. What did she say? A. Said she would.
“Q. Who were you representing there? Mr. Miller had asked you to represent him? A. Yes.
“Q. You did tell Mrs. Kyle, however, that you wanted her to bid that- land in, and you wanted her to hold it for six months for Mr. Miller? That was understood,-wasn’t it? A. Yes.
“Q. And she agreed to do that? A. Yes.
“Q. And if during the six months she wss paid back the amount that was due her, that she would deed it over to Mr. Miller? A. Yes.
“Q. That was understood there? A. Yes.
“Q. And further, you told her that if she would go down there, that you would not go down, that you would depend upon that now, didn’t you? A. No, I don’t think I said that, Mr. Barrett.
“Q. Did you tell her that you would not go down now? A. Yes, it was understood that I was not going.
“Q. You thought there was six months’ redemption period that Dr. Miller had on that? A. Yes.
“Q. You also thought the sale would not be valid, anyway? A. Yes.
“Q. You answered counsel a moment ago that Mrs. Kyle was going down there to represent herself in buying this land? A. Yes, sir.
“Q. It was understood she was going there to protect her own interests in this sale? A. Yes, and the bank.
“Q. Protect herself and the bank in this sale? A. Yes, sir.
“Q. And she was not going there to represent Mr. Miller? A. No, I think not. I would not consider it that way.”
There was other testimony for the plaintiff that it was believed the sale would not be valid because the plaintiff was in the army, that it was useless for anybody to attend the sale because it would not be valid, and that Wacker could not attend the sale because he had threshing to look after on the day of the sale.
The allegation of agency not only was not proved, but was disproved. Wacker himself admitted the defendant did not go to the sale to bid in the land as agent 'for the plaintiff, and with the subject of agency, the subject of fraudulently making a contract of agency went out of the case.
Wacker did not refrain from attending the sale because the defendant was going. Counsel on his side of the case pressed him to give an affirmative answer to a leading question which would have shown he gave up going because he was depending on the defendant, and he declined to give the desired answer. There is no evidence whatever that any other purpose or plan to. protect the plaintiff at the sale was relinquished or frustrated because the defendant decided to attend the sale. On the other hand, the proof was that attendance at the sale was not considered important.
The evidence reduced the transaction to this: The defendant was going to Oklahoma to represent herself at the sale. Wacker was not going. He asked the defendant, if she bid in the land, if she would hold it for the plaintiff, and transfer it to the plaintiff, provided within six months she were repaid. The defendant said she would. This constituted an oral agreement relating to land, void under the statute of frauds, and not capable of sustaining an action for its breach.
The doctrine of trusts is invoked. The trust concerned land, was not created by writing signed by the defendant, and so was void as ah express trust, under section 1 of the trust statute (Gen. Stat. 1915, § 11674).
The defendant was not the plaintiff’s agent, and no other confidential relation existed between them. The defendant represented herself, Wacker represented the plaintiff, and they dealt with each other as any owner and prospective phrchaser might deal in respect to land about to be sold at sheriff’s sale.' Sections 6 and 8 of the trust statute obviously do not apply, and the only ground for declaring a trust by implication of law is that the defendant violated the oral agreement, which is not sufficient. (Silvers v. Howard, 106 Kan. 762, 190 Pac. 1, and cases cited in the opinion.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from orders overruling demurrers and motions leveled against the petition.
The petition was in two counts: the first alleged in substance that plaintiff and defendant, who are brothers, were joint owners of 680 acres of land in Trego county and in 1917 orally agreed upon a division of the land by which each was assigned his share in severalty; that there was at that time some difference between them over a small building on the land which was not of sufficient value to warrant the plaintiff in going from his home in Atchison to defend an action that might be brought .against him in Trego county; that knowing all these facts, the defendant, on September 18, 1917, brought an action in partition in the district court of Trego county and fraudulently caused a summons to be issued and served upon the plaintiff in which no claim was made for the partition of the real estate, but which simply notified him that he had been sued; that this was done for the purpose of preventing him from attending the action and protecting his rights therein; that he relied upon the oral agreement for the division of the property, and was not apprised of any different attitude on the defendant’s-part until long after a decree of partition had been rendered by the district court of Trego county; that the division made by the court in the partition suit defrauded and cheated the plaintiff out of his full interest in the land; that the value of the property which he was to receive by virtue of the oral agreement exceeds the value of the portion given him by the partition decree in the sum of $2,000; that he had delayed bringing action to set aside the judgment in the partition suit because of ineffectual efforts to induce defendant to adjust the difference out of court. Plaintiff asked that the decree of partition be set aside and the lands divided according to the alleged oral contract or that a division be made that would be just and equitable between himself and the defendant. The files and papers in the partition suit were made a part of the petition. They show that plaintiff was personally served with summons in that action and show perfectly regular proceedings in partition, including the appointment of commissioners, their re port, its confirmation and a decree setting apart to the plaintiff his separate interest as found by the court. To this count of the petition a demurrer was overruled.
1. The demurrer should have been sustained. The petition alleges that the defendant fraudulently caused a summons to be issued and served upon plaintiff in the partition suit which simply notified him that he had been sued. Merely to say that a thing was done fraudulently does not show fraud.
The form of the summons is prescribed by section 60 of the code (Gen. Stat. 1915, § 6951) and, except where the action is upon a contract for the recovery of money, there is no requirement that the summons shall state the contents of the petition nor the nature of the cause of action.
It has been repeatedly held that a judgment by default where there is actual notice to the defendant is as conclusive against him upon every matter admitted by the default as if he had personally appeared and contested the plaintiff’s right to recovery. (Garrett v. Minard, 82 Kan. 338, 108 Pac. 80.) Even where the judgment has been procured by perjured testimony, a party thereto cannot impeach it or set it aside on that ground. (Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906; Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529; Miller v. Miller, 89 Kan. 151, 155, 130 Pac. 681.)
“The fraud which will authorize a court to vacate a judgment in an action brought for that purpose under section 570 of the code of civil procedure must be extrinsic or collateral to the matter involved in the former action, and sufficient to justify the conclusion that but for such fraud the result would have been different.” (Plaster Co. v. Blue Rapids Touwnship, 81 Kan. 780, 106 Pac. 1079, syl. ¶ 2; see, also, United States v. Throckmorton, 98 U. S. 61, 68).
Besides, if the facts alleged- by the plaintiff had been embodied in an answer and filed in1 the partition suit they would not have constituted a defense. It is not averred that possession had been taken and held under the oral arrangement for the division of the property, or that valuable improvements had been made by reason of it. The alleged oral agreement was void under the statute of frauds. (McCullough v. Finley, 69 Kan. 705, 77 Pac. 696.)
The plaintiff’s claim of fraud amounts to this: he had a defense to the partition action but relied upon his adversary to present it for him. It was said in Whiteman v. Cornwell, 100 Kan. 234, 237, 164 Pac. 280:
“If I am sued for a sum of money which I do not owe, on a claim without even a shadow for its basis, and am duly summoned into court, and I wholly ignore the judicial proceeding, the plaintiff will take judgment against me by default, and in time that judgment will become unassailable.”
2. In the second count plaintiff attempts to state several causes of action without separating or numbering them. One was for the recovery of a share of farm rents for a certain year; another alleges that in 1916 defendant received $200 from a railroad company for wheat burned and that one-eighth of this sum is due plaintiff by reason of his joint ownership of the land; in another plaintiff seeks to recover the value of his share of certain wheat, which it is claimed was destroyed. by the'negligence of the defendant in setting out a fire; in another damages are asked for the conversion of railroad ties which it is claimed he and the defendant were to receive under a contract with the railroad company, but that defendant took and converted them to his use. There are several other causes of action for the conversion of property, including one for the recovery of $150, the alleged value of a colt which plaintiff claims to have left on the premises and that defendant took and converted. Judgment was asked for $1,318.30, the sum of the various items of damages claimed in the several causes of action.
On the hearing of a motion to require the several causes of action to be separately stated and numbered, plaintiff took leave to amend and the motion was overruled. By the amendment the second count was merely separated into two subdivisions, “A” and “B.” Subdivision “B” relates to the cause of action for the recovery of $150 for the value of the colt, which it is alleged defendant converted. Subdivision “A” contains the other several causes of action referred to, and possibly more; all of them are confused and mingled together.
While it rests largely in the discretion of the court or judge to require several causes or defenses to be separately stated and numbered (Civ. Code, § 122), it must be held an abuse of discretion to deny such a motion where the pleading blends together and confuses so many separate and distinct causes of action as the petition in this case clearly does.
There is force in defendant’s contention that the petition fails to state any cause of action for the conversion of property, but in the confused state of the pleadings we must decline to undertake the task of determining that question. For the reasons stated, the judgment will be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Johnston, C. J.:
This case involves the doctrine of election of remedies which was invoked in a controversy as to the right to the possession of an automobile. The car was in the pos session of the defendant Waymire, and the intervener, Juanita Hill, of Arizona, finding him in that state, brought an action against him there, alleging that he had obtained possession of her car, refused to return it' upon demand, and had converted it to his own use. She therefore asked judgment for $1,120, the value of the car, with interest from the time of the conversion. He answered that she never was the owner of the car, that he had purchased and paid for it and was nbt indebted to her in any sum. Subsequently, she dismissed her action in Arizona, and undertook to recover possession of the car in this proceeding. Ireland, the plaintiff herein, brought this action to-recover $1,025 from Waymire, alleged to have been fraudulently obtained from plaintiff, and obtained an order of attachment which was levied upon the car in question. ' Upon a trial the attachment was sustained, and a judgment against Waymire for the amount of the debt was rendered. After an order for the sale of the attached property had been issued, Juanita Hill intervened in the action, alleged that she owned the car and asked for the possession of it. She alleged that the location of the car had been concealed from her, and therefore she had brought the action in Arizona, but upon learning that the car was in Kansas, she had dismissed that action and was seeking a recovery of it in this action. Ireland’s answer to her interplea was a general denial and the defense that by her action in Arizona she had elected to treat the automobile as the property of Waymire and was therefore precluded from prosecuting an action for the recovery of the specific property. The facts related were set forth in the pleadings, and the court sustained a motion made by the plaintiff for judgment against the intervener upon the pleadings.
In her appeal the intervener insists that, while she had alleged the conversion of the property by Waymire, she did not aver that it had been sold to him or that he had acquired it by contract, but had alleged ownership of the property and was asking a recovery because she had been wrongfully deprived of it. It appears, however, that she did not ask for the specific possession of the property, but explicitly alleged that Way-mire had converted it to his own use, and she proceeded upon the theory that he had made the property his own, and there fore asked that he be required to pay for it. Two remedies were open to her, one for the recovery of the specific property, and the other to waive the tort and sue on the implied obligation of Waymire to pay for the property which he had converted. She chose the latter remedy and is conclusively bound ' by her election.
It has been consistently held throughout a long line of decisions in this state, that where a party having the right , to choose one of two inconsistent remedies, deliberately elects to follow one of them, with knowledge or the means of knowledge . of the facts, he is effectually barred from thereafter making a new election and pursuing the other remedy.. (Smith v. McCarthy, 39 Kan. 308, 18 Pac. 204; Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111; Evans v. Rothschild, 54 Kan. 747, 39 Pac. 701; National Bank v. National Bank, 57 Kan. 115, 45 Pac. 79; Burrows v. Johntz, 57 Kan. 778, 48 Pac. 27; Blaker v. Morse, 60 Kan. 24, 55 Pac. 274; Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062; Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665; Remington v. Hudson, 64 Kan. 43, 67 Pac. 636; James v. Parsons, 70 Kan. 156, 78 Pac. 438; Ullrich v. Bigger, 81 Kan; 756, 106 Pac. 1073.) The doctrine is an application of one phase of the law of estoppel which prevents one who comes into court asserting or defending his rights from taking and occupying inconsistent positions.
“A party cannot either in the course of litigation or in dealings in pais occupy inconsistent positions. Upon that rule election is founded; ‘a man shall not be allowed,’ in the language of the Scotch law, ‘to approbate and reprobate.’ ” (Bigelow on Estoppel, 6th ed., 732.)
Another statement of the basis of the rule and' of its application in cases like the one in hand is—
“The reason of this rule, as applied to a case of conversion where the tort is waived, is that plaintiff thereby elects to treat the transaction as a sale whereby title to the property is transferred to defendant, and he cannot thereafter assert, either as against defendant or another, that the title so transferred still remains in himself.” (1 C. J. 1040, Note 50 [a].)
Plow Co. v. Rodgers, supra, like this, was a case of conversion. Underwood, an agent to whom goods were intrusted, absconded after disposing of them. The plow company, the owner, sued the agent, upon the theory that there had been a conversion and a transfer of ownership to Underwood, and asked for the recovery of their value. As that action did not promise satisfactory results, the plow company dismissed it and sought a recovery of the property itself in another'action. It was held that the company could not blow hot and cold, that its first action was upon the theory that the title had passed, and if title had passed, it had no right to the property. It was remarked that—
“Having made its election with a knowledge at least of the more important facts affecting its rights, the plaintiff may not thereafter abandon its first election and choose the opposite remedy. An election, once fairly made by a party having the right to make it, is final and conclusive." (p. 749.)
It is clear that at the outset both remedies were open to the intervener, and that she had knowledge of her rights. Considerable is said about the form of the actions, and it is urged that both were in their nature ex delicto and that, therefore,' the rule invoked was not applicable. The doctrine of election does not depend so much on the form as the nature and theory of the actions. It is the inconsistencies of the remedies, rather than the forms, which give rise to the estoppel. (Commission Co. v. Bank, 79 Kan. 761, 101 Pac. 617.) This view was stated in Sweet v. Bank, 69 Kan. 641, 77 Pac. 538, as follows:
“Election goes not to the form but to the essence of the remedy. It applies only where the law supplies to a party two or more modes of procedure, predicated upon inconsistent and conflicting theories. If the remedies afforded be predicated upon consistent theories, the suitor may use one or all of them; there can be but one satisfaction. Where the remedies afforded are inconsistent, the election of one operates as a bar.”, (p. 643.)
The first action, whatever it may be called, was brought upon the theory that the title to the property wrongfully obtained had passed to Waymire. Although she had not contracted a sale of it to him, her action in treating the property as his and asking for its value operated as a transfer of title. When she chose that remedy, as she had a right to do, the law implied an obligation upon his part to pay for the property converted, and this obligation was the foundation of that action. The cases cited clearly demonstrate that the remedy first chosen is wholly inconsistent with that invoked in the second action brought to recover the specific property. Having chosen one remedy, the other was no longer available to her.
Nor does the fact that the action did not proceed to judgment affect the application of the principle. The commencement of an action or any decisive act of a party determines the question and gives finality to the election, whatever may be its result. In Conrow et al., v. Little et al., 115 N. Y. 387, where an election by plaintiffs to affirm or avoid a contract was under consideration, it was said:
“They could not do both, and there must 'be a time when their election should be considered final. We think that time was when they commenced an action for the sum due under the contract.” (p. 393.)
The court further held that the discontinuance of the action was immaterial. (See, also, Terry et al., v. Hunger, 121 N. Y. 161.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
West, J.:
After this cause was remanded (Bellport v. Harkins, 104 Kan. 543, 180 Pac. 220) another trial was had resulting in a verdict for the plaintiff, and the defendants appeal and complain of the court’s refusal to sustain an objection to the introduction of evidence under the petition, of the overruling of the demurrer to the plaintiff’s evidence, and of the admission of certain testimony; also that certain instructions -were erroneous, and that it was error to send the jury back for a second verdict instead of receiving the one they first brought in.
The first assignment was disposed of in the former opinion.
The second one is without merit.
As to the third, the defendants, in order to show that the plaintiff did not suffer the amount of damages he claimed, offered in evidence the pleadings, journal entry and judgment in the foreclosure and quiet-title suit brought against him by the man in whose name the title to the land involved herein stood when the acknowledgment in question was made, also the summons and return in the same action. This was for the purpose of supporting the defendants’ theory and assertion that this action by Shirk involved the same land affected by the certificate of acknowledgment now under consideration, and that the plaintiff received back all he paid for the deed from Barndt except $449.50. It is asserted and not disputed that the verdict first returned by the jury was for this precise sum with interest.
The plaintiff’s allegation was that he sold the land for $1,200, paid $12.80 for taxes, and had had judgment rendered against him for $1,236.00 and costs, and that his total damage was $1,362.80. It is contended that this offer of evidence was an attempt to bring in an issue outside the pleadings, but the answer contained a general denial, and for this reason if the excluded testimony tended to show that the plaintiff’s damage had been much less than $1,362.80 it was competent. Of course, the plaintiff could not call on the defendants, to remunerate him for what he might reasonably have avoided by looking out for himself. (Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579; Murrell v. Crawford, 102 Kan. 118, 169 Pac. 561; Insurance Co. v. Bigger, 105 Kan. 311, 182 Pac. 184; Rock v. Vandine, 106 Kan. 588, 189 Pac. 157.)
It is suggested that because this evidence was not produced on the motion for a new trial, it cannot be considered now. The trial court knew what it was when offered as well as if offered again on motion for a new trial, and hence this objection must fail. (Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268; Bank v. Seaunier, 104 Kan. 7, 8, 178 Pac. 239.)
Considerable fault is found with the instructions, but they appear to have followed the rule announced in the former decision, and to have correctly stated the grounds on which the notary could be held liable.
Much force seems to have been given to the idea that Amandus H. Barndt did not appear before the notary. It seems that some one claiming, that name did appear, but he was not the Amandus H. Barndt who owned the land. True, the court did tell the jury that the plaintiff claimed the man who executed the deed was not Amandus H. Barndt, but they were also told that if the person who appeared before the notary was in fact Amandus H. Barndt the verdict would have to be for the defendants, even though he was not the owner of the land. This very liberal charge certainly cured any error which might otherwise have arisen from the quoted language touching the claim of the plaintiff in his petition.
The jury first returned a verdict for the plaintiff for $561.08, which the trial court refused to receive, telling the jury that—
“By this verdict you have indicated that you have found the issties in favor of the plaintiff 'and that the plaintiff is entitled to recover. This being so, he is entitled to recover the full amount of damages sustained and proved. The defendant has introduced no evidence to controvert the plaintiff’s testimony as to the amount of damages which the plaintiff has sustained. The jury should not ignore undisputed evidence in the case, if it is not discredited, and form independent conclusions on matter about which there is testimony in the case. Unless thelre is something in the evidence in the case to discredit the testimony of plaintiff’s witnesses as to the amount of damages which the plaintiff has sustained, their testimony on this question should be accepted.”
They were told that the court did not intimate, for which party the verdict should be found, but if they should find for the plaintiff it should be for all the damages the evidence showed he had sustained. After retirement and further consideration, they came in with a verdict for $1,663.28 against the defendant Harkins, and $1,221.17 against the surety company.
The court was eminently correct in advising the jury that it was not in their province to disregard credible and undisputed evidence. (Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322, and cases cited; Wible v. Street Railway Co., 88 Kan. 55, 127 Pac. 625; 10 R. C. L. 1006, § 194; Note, 12 Ann. Cas. 245; Miller’s Will, 49 Ore. 452; Roseberry v. Nixon, 58 Hun [N. Y.] 121; Kelly v. Burroughs, 102 N. Y. 93), but this makes more important the refusal of the court to admit the offered evidence of the amount of damages really suffered by the plaintiff. But for this there would be nothing between the colloquy of the jury and the sending of them back for further consideration, to warrant a reversal, because, as the court said, there was no testimony to dispute the plaintiff’s testimony as to the amount of his loss. There is no proper theory or principle by which it is any more competent for a jury to return too small a verdict than one too large, when in either case the one returned ignores credible and undisputed evidence.
Complaint is made that, while the plaintiff testified that his equity in the Wichita lots was worth $750, which was followed by the jury, his petition fixed the value at only $700. We find no way of ascertaining from the record whether the verdict finally returned included $750 for this item or not, but if any error in this respect occurred it can be corrected on another trial.
On account of the refusal of the offered testimony touching the foreclosure and quiet-title suit, the judgment is reversed.
No error appearing except in relation to the amount of damages suffered by the plaintiff, the cause is remanded for a new trial on that one question only.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from an order sustaining a demurrer to the defendant’s answer.
The plaintiff sued to recover a commission for selling real estate. The defendant, who lived in California, owned land in Ottawa county, Kansas. The plaintiff lived at Salina. In answer to an inquiry by plaintiff, the defendant wrote, stating his terms and that he would be pleased to have the plaintiff sell the land; and in a second letter, dated October 12, 1918, wrote that he would sell the land for $3,800 net, if sold at once, and told the plaintiff to “get in touch with your buyers and explain the prospects.” The petition set out copies of the correspondence, and alleged that on October 23 plaintiff found a purchaser, John M. Bye, and entered into a written contract with him to take the land at $4,000; that the purchaser paid him $500 on the purchase price; and that plaintiff signed the contract as agent for the defendant. A copy of the written contract for the sale was attached to the petition, which showed that one of its provisions was that the defendant was to deliver to the purchaser “a good, merchantable abstract of title.” The petition was apparently drawn upon the theory that plaintiff had been authorized to enter into a written contract with a purchaser and in compliance therewith had made a binding contract for the sale of the land in the name of the defendant.
In his answer, besides a general denial, the defendant admitted writing the letters referred to in the petition, but denied any liability to the plaintiff resulting from the correspondence, and alleged that the contract between the plaintiff and John M. Bye had not been authorized nor ratified by him. As a further defense, the answer alleged that the land had been listed with the plaintiff for sale, but that before plaintiff found a buyer, and before he had communicated the fact to the defendant, the latter had sold the land to one F. D. Doering.
Two of plaintiff’s contentions urged in support of the ruling on the demurrer may be considered together. First, it is contended that the answer is insufficient because it fails to show that the plaintiff’s agency was ever revoked by notice to him; and second, that after the receipt of the letter of October 12, authorizing him to proceed to sell the land, he was entitled to a reasonable time to induce prospective buyers to purchase on the terms stated, and thus to earn his commission before defendant could revoke his agency.
Both contentions are based upon the erroneous assumption that plaintiff was given the exclusive agency for the sale of the property. In the case of Edwards v. Dana, 104 Kan. 266, 178 Pac. 407, which is relied upon by the plaintiff, it was expressly stated in the opinion that the agent had asked and. was given by the landowner the exclusive sale of the property for a fixed time. Within that time he found a customer ready, able and willing to buy on the owner’s terms, and it was held that, inasmuch as the letter, advising him that the owner had sold the land, did not reach him until after the purchaser had been found, plaintiff had earned his commission. In the case at bar there was a mere listing of the property with the plain tiff to find a purchaser. Such an agency may be revoked at any time. (Helling v. Darby, 71 Kan. 107, 79 Pac. 1073.) In that case it was held that brokers, in whose hands property had been placed for sale and who, acting thereupon, had found a purchaser, but did not notify the owner until after he had sold it to another person, were not entitled to a commission for making the sale, for the reason that they did not have exclusive authority to sell. See the cases cited in Note, 24 L. R. A., n. s., 279, in which it is Said:
“It without doubt is the general rule that, where property is placed in a broker’s hands for sale in the ordinary way, that is, without specifying any certain period of time within which the broker is to have the right to sell, or that he, within a certain time, shall have the exclusive right to sell, the mere fact that the property is given to the broker for sale does not deprive the owner himself of the right to sell the property, and where the owner sells such property before the broker has found a purchaser, he cannot be held liable for commissions or damages for a breach of the contract.” (Citing a large number of cases, including Helling v. Darby, supra.)
In his brief, plaintiff cites 9 C. J. page 522 (Title “Brokers,” § 22, Note 15). Among the cases mentioned in the note is that of Wanstrath Real Est. Co. v. Wenz, 185 Mo. App. 162, but it is expressly stated in the note that in that case the plaintiff was given the exclusive agency and also the right to a commission in case of a sale by the owners.
There is some discussion in the briefs as to whether the written contract referred to in the petition, and which plaintiff entered into with John M. Bye, was binding upon the defendant. It has been held that under the usual contract by which a landowner lists his property for sale with an agent, the latter has no authority to make a written contract that would be binding upon the owner. (Sullivant v. Jahren, 71 Kan. 127, 79 Pac. 1071; Wiggam v. Shouse, 105 Kan. 637, 185 Pac. 896, and cases cited in the opinion.) The subject of executing a contract of sale on behalf of defendant with one who might be found willing to purchase the land was not considered or mentioned in the correspondence. All that was said in these letters was only what would naturally be said between the landowner desirous of selling and a broker with whom he was listing the property.
One further contention of the plaintiff requires notice. In one of his letters to the defendant, a copy of which is set forth in the petition, and which was written before the defendant finally fixed the terms upon which he would sell the property, the plaintiff made this statement:
“I expect it best for me to give you the names.of my parties I am figuring with so as to avoid misunderstanding, in case they should write to you in regard to the,land; of course I would expect my commission, if these parties would buy the land, . . . Mr. Bye and Mr. F. D. Doering are the parties I have been dealing with and will of course expect you to protect me on the commission as I have put some time getting them interested.”
In his answer defendant stated that before he learned of the sale to John M. Bye he had sold the land himself to F. D. Doering. The plaintiff insists that, having notified defendant that Doering was one of the men he had interested in the property, he is entitled to recover a commission for the sale defendant made to Doering. The action, however, is to recover a commission for procuring another purchaser, with whom plaintiff claims to have made a binding contract to take the land at a certain price. The pleadings do not disclose how much Doering paid for the land, and besides, the petition shows that plaintiff had abandoned negotiations with Doering; it alleges that he offered the land to Doering, who declined to purchase, and that he then arranged a sale with John M. Bye. The rule has often been applied to a defendant that he cannot, after litigation has begun, mend his hold and shift the ground of his defense. (Redinger v. Jones, 68 Kan. 627, 637, 75 Pac. 997; Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444; Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116; Braniff v. Baier, 101 Kan. 117, 165 Pac. 816.) The same rule should apply in a proper case to a plaintiff; but, in any event, if plaintiff intended to rely upon a different cause of action from that stated in his petition he should not have demurred to the answer.
The judgment is reversed, and the cause is remanded with directions to overrule the demurrer.
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The opinion of the court was delivered by
Marshall, J.:'
The defendant appeals from a judgment against him under the workmen’s compensation act. The action was tried without a jury, and the court made special findings of fact as follows:
“1. On the 18th day of March, 1919, E. W. McMillan, while in the employ of the defendant in Wichita, Sedgwick county, Kansas, received a personal injury, by accident, arising out of and in the course of his employment, from the effect of which injury he died on or about the 20th day of March, 1919, leaving the plaintiff, his widow, as his sole dependent.
“2. At the time of his death and at the time of his injury, E. W. McMillan was receiving from the defendant, wages at the rate of five ($5) dollars per day, and his average yearly earnings at that time were more than thirteen hundred ($1300) dollars.
“3. On the day of the injury and the day previous to the injury, the defendant had in his employ more than five (5) workmen, and the defendant did not have five (5) workmen in his employ at any other time during the month immediately preceding the accident.
“4. The defendant was at the time of the accident, and had. been for several years before the accident, engaged in the contracting and building business in Wichita and elsewhere in the state of Kansas. During the summer months while the defendant was actively carrying on his business, he had a large number of men in his employ. During the season of 1918, he had more than fifty (50) men in his employ in Wichita, Sedgwick county, Kansas, continuously for several months. During a short time in the winter the defendant was unable to carry on his business actively, and oh that account, suspended operations and at times did not have any workmen employed and at other times had a small number. At the time of the accident, he was just beginning active operations for the season of 1919 and had just begun to employ his usual number of men for active operations during the building season.
“5. On. the 5th day of April, 1913, the defendant filed in the office of the secretary of state, at Topeka, Kansas, a paper which reads as follows :
Wichita, Kansas, Apr. 4, 1913.
“Mr. Charles Sessions, See. of State, Topeka, Kansas:
“Dear Sir: I am an employer of labor, doing business under the name of the H. I. Ellis Construction Company, general contractors, and this is to inform you that I elect under the law not to come under the ‘Workmen’s Compensation Act’ of 1911, as amended by the law of 1913.
“Please make whatever necessary records, if necessary, or if you have blanks for this purpose, send same to me at once.
“Yours very truly, H. I. Ellis Const. Co.,
Per H. I. Ellis, Pres. & Mgr. HIE-AMR.
“6. ’ On May 29, 1918, the defendant filed in the office of the secretary of state a paper which reads as follows:
“KD-5147
“State of Kansas, Sedgwick County, ss.
“Election of employer to come within the provisions of Article 6, Chapter 61, General Statutes of 1915, as amended by Chapter 226, Session Laws of 1917. Rescinding former election. To the Secretary of State:
“You are hereby notified that H. I. Ellis Construction Company hereby elects to come under the provision of Article 6, Chapter 61, General Statutes of 1915, being an act entitled ‘An act to provide compensation for workmen injured in certain hazardous industries,’ as amended by Chapter 226, Session Laws of 1917; that said H. I. Ellis Construction Company is an employer of labor and is engaged in the business of general building contractor, city of Wichita, and in the county or counties of all counties in the state of Kansas. H. I. Ellis Cons’t Co.,
By H. I. Ellis.
“Attest: F. E. Parr. Dated this 27th day of May, 1918.”
On those findings the court made conclusions of law as follows:
“1. As the defendant was, during the season of 1918 for months continuously as herein before found, engaged in the building work with more than five (5) workmen in his employ, both the defendant and the workman, E. W. McMillan, were under the Compensation Law of the state of Kansas, being chapter 218 of the Laws of 1911, entitled ‘An act to provide compensation for workmen injured in certain hazardous industries,’ as amended by chapter 216 of the Laws of 1913 and chapter 226 of the Laws of 1917. The fact that the defendant had in the winter of 1918 and 1919 temporarily suspended active operations in his building work did not remove him and his business from the operation of the Workmen’s Compensation Law, and when he begun building work in the spring of 1919, he was and has been since the building season 1918 under the compensation law, and during all of said time the said law was applicable to him and his employes.
“2. The paper filed by the defendant in the office of the Secretary of State on the 29th day of May, 1918, was and constitutes ás a matter of law an election to come under the terms of the compensation law and operate his business under said law without regard to the number of workmen which he employed at any particular time.
“3. The plaintiff is entitled to recover from the defendant by reason of the ‘Workmen’s Compensation Law’ of the state of Kansas on account of the death of her husband, the sum of thirty-eight hundred ($3800.00) dollars, with interest thereon at the rate of six per cent per annum from March 18,1919, together with the cost of this action.”
But one proposition is argued, and that is that the defendant did not come within the terms of the workmen’s compensation act — neither by reason of the number of persons employed by him, nor by reason of the election filed by him on May 29,1918. The workmen’s compensation law then applied to building work, and provided that the act “shall only apply to employers by whom five or more workmen have been (employed) continuously for more than one month at the time of the accident: Provided, hoiuever, That employers having less than five workmen may elect to come within the provisions of this act in which case his employees shall be included herein, as hereinafter provided.” (Gen. Stat. 1915, § 5902.) It is not necessary to examine further than to ascertain whether the defendant had elected to come under the provisions of the act. By his communication to the secretary of state and by his filing that communication in the office of the secretary of state the defendant formally and regularly elected to come under the provisions of the law and is conclusively bound by that election.
An ingenious argument is made that,
“The last provision of Sec. 5902 with regard to employers having less than five workmen can have no application to this case, for the reason that the court found that the defendant when pursuing his business and on the date of the accident, had more than five workmen in his employ, and that during the summer months while defendant was actively carrying on his business, and during the season of 1918, defendant had more than fifty men in his employ continuously for several months, and that during the winter, defendant was unable to carry on business, and suspended operations, and at times, did not have any workmen employed, and at other times, a small number.”
This argument is not convincing and cannot be followed for the reason that section 1 of chapter 226 of the Laws of 1917 provides that:
“Employers whose work, trade4 or business is not such as described and included in this section of this act, and employers commencing or renewing in this state any work, trade or business, may elect to come within the provisions of this act by filing with the secretary of state a written statement of election to accept thereunder, and such election shall be effective when so filed.”
This statute was strictly complied with by the defendant; he elected to come under the workmen’s compensation act whether he had less than five employees or more than that number, and he cannot now be heard to say that the act did not apply to him.
The judgment is affirmed.
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The opinion of the court was delivered by
MASON, J.:
In this case (106 Kan. 610, 189 Pac. 160) this court decided that the will involved gave to the widow of the testator a life interest in his realty — a farm — coupled with a power of disposition which was not unlimited and did not enable her to make an outright gift of the entire property to the prejudice of the remaindermen.
1. In a motion for a rehearing it is argued that the deed to the farm was not a gift, although no money was actually paid at the time of its execution, but was made in consideration of a promise that the grantee — her grandson — would support her during the remainder of her life. The trial court found that there was no consideration paid by the grantee to the grantor, and that the transaction was treated and considered as a gift. Whatever doubt on the matter might have been left by the evidence was resolved by this finding, which determines the voluntary character of the conveyance.
2. It is also urged that the conclusion reached is in conflict with a number of our own decisions, as well as those of other jurisdictions. While for reasons stated in the original opinion we deem it inexpedient to enter into any very extended review of the authorities, some of those most • strongly pressed will be briefly referred to.
In Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233, the portion of the will preceding that indicating the final disposition of the property read as follows: “I wish my wife, Eliza Bunt, to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all property that may be left by her, first I want Mary Greenwalt or her heirs to have what I owe her.” The widow, not being able otherwise to pay the debt to Mary Green-wait, which amounted to $300, in satisfaction thereof made a conveyance of real estate which had been owned by her husband at the time of his death. It was held that although no power of disposition was expressly given it was to be inferred from the fact that the other persons named were to receive only the property that might be “left by her,” and that the deed was valid. The question there presented and determined was whether or not a power of disposition was given by the will— not as to the scope of the power if it existed. Otis v. Otis, 104 Kan. 88, 177 Pac. 520, was a quite similar case, one party contending that the widow took a fee, the other that she took a life estate with power of disposition, the decision being in favor of the latter contention.
In Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802, a will executed by a husband and wife read as follows: “They and each of them do hereby devise and bequeath to the other surviving, all the estate ... of which the one dying first shall be seized, or have an estate, claim or interest therein, and to be owned and disposed of by the survivor as he or she may desire, and that upon the death of the survivor, all the estate of the survivor not disposed of by such survivor, is hereby devised and bequeathed to their children ... in equal parts.” (Syl.) After the death of the wife, preceded by that of the husband, an attempt was made to subject real property which they had occupied as a homestead, the title being in the husband, and which had passed into the hands of their children, to the payment of a judgment against him. The children claimed that under the will the fee had passed to their mother, and the property had thereby been freed from the lien. The creditor claimed that their mother on the death of her husband took merely a life estate, although accompanied by a full power of disposition, the remainder vesting in the children, who acquired the property subject to the lien of the judgment. The question in dispute was whether or not the widow took a fee, the alternative theory being that she took a life estate with a power of disposition. 'There was no controversy over the extent of that power. It was spoken of in the opinion as being “full,” the- context indicating the meaning to be that, however absolute it might have been, it did not convert the widow’s title into a fee. There was no occasion to consider whether the widow might have attempted some disposition of the property which was beyond the power conferred, for no such issue was raised.
In Brown v. Brown, 101 Kan. 335, 166 Pac. 499, a husband and wife made a joint will by which the survivor was to take a life interest in the property of the other with the right to dispose of any part of it, the estate to be distributed after an interval to their bodily heirs. The widow of a deceased son of the testators claimed an interest therein on the theory that her husband had acquired a title which descended to her. Her claim was denied, and the opinion, in describing the effect of the will, mentioned that on the death of one of the testators the property was to vest in the other with full power of disposition. As in the case just discussed, no question was raised as to whether the power was literally absolute and unlimited.
It is urged that the decision in the present‘case is not consistent with that in Markham v. Waterman, 105 Kan. 93, 181 Pac. 621, but we discover no inconsistency in principle. There the testator did not expressly confer upon his widow a right to sell or dispose of the property he left, but for reasons stated in the opinion we concluded that such an intention on his part was to be gathered from a consideration of the entire will. Here the testator did not expressly limit the power of disposition he conferred upon his widow, but, for reasons stated in the original opinion, we conclude that such an intention was clearly inferrable from his language, viewed in the light of the surrounding circumstances.
We freely concede that many cases are to be found having at least an apparent tendency against the conclusion we have reached. Some of them are influenced by rules of construction which we do not accept, and some are distinguishable upon the facts. We find no case favorable to the view we have taken that is so absolutely in point that if conceded to be sound it would be necessarily controlling. Johnson et al. v. Johnson, 51 Ohio St. 446, would probably meet that descrip tion were it not for the fact that in providing for the distribution of the property undisposed of by the widow the will described it as that remaining “unconsumed” at her death. The court held that, although she was express^ empowered to dispose of the property as she might think proper, she was not authorized to give it away. The use of the word “unconsumed” was of course an aid in reaching that conclusion, but only by virtue of an inference to be drawn from it. It was important only as it was of assistance in determining the real meaning of the testator, which his language did not indicate with strict accuracy. In Terry et al. v. Wiggins et al., 47 N. Y. 512, a grant of power to a widow to dispose of property if she should deem it expedient was held to be limited, because it was devised to her “for her own personal and independent use and maintenance.” The decision was obviously correct, but it rested only on an inference.
In the present case the devise to the widow was accompanied by a direction that she should immediately enter upon the possession of the property (a provision which carries some implications of a purpose to provide for her support), with power to sell and dispose of it in any way she might desire, without the intervention of any court, during her natural life. Any property that remained at her death, after the payment of $50 to her grandson, was to be distributed among her five children. We regard it as entirely clear that the devise was intended as a provision for the maintenance and comfort of the widow — as much so as though it had been expressed to be for her use and benefit — and that some limitation on her power of disposal was intended. In that situation the inference has been drawn that • the body of the estate could be diminished so far as might be necessary to the support of the widow. (West v. West, 106 Kan. 157, 159, 186 Pac. 1004.) We do not hold that in the present case the widow could dispose of the property only where it should be necessary or convenient for her support, unless that term should be so extended as to cover any expenditure she might see fit to make for her own benefit or pleasure. The testator plainly did not intend, however, that she should have any power to determine who should have the farm after her death, if it had not been previously disposed of. If she had undertaken to give, the farm to her grandson by will instead of by deed the attempt would of course have been futile. She made the deed at the age of eighty-four, after being in ill health for some months. She gave as a reason for determining to make it, that her grandson was the only one who stayed with her and did for her and she thought he was the only one to leave it to. To give effect to the deed would be to allow the manifest purpose of the testator to be frustrated — to permit the grandson, to whom he had alloted but $50,' to possess the entire estate which he designed to have distributed among the children when his wife should be through with it. We think it clear that this method of disposing of the property was not one of those her husband intended to place within her power, and we derive this belief from the reading of the whole will in the light of the situation of the parties.
3. In the brief of the appellee it was contended that whatever interpretation might properly be placed upon the will if made at this time, it should be construed as authorizing the widow to give away the property because it was executed in 1911, and the testator died in 1912, when a different rule of construction prevailed from that now adopted — the rule declared in the cases of which McNutt, v. McComb, 61 Kan. 25, 58 Pac. 965, is typical. Inasmuch as the present case was held to be distinguishable from that, a discussion of this contention was regarded as unnecessary and no mention of it was made in the original opinion. In the motion for a rehearing the point is again pressed, but is clearly untenable. The argument in its support is based chiefly upon a recent decision of the United States circuit court of appeals for this circuit. (Wells v. Brown, 255 Fed. 852.) There one paragraph of a Kansas will gave all the testator’s property to his mother. The succeeding paragraph expressed a wish and request that she should devise and bequeath to certain persons whatever of it remained at her death. Apparently it was assumed that if the rule of interpretation now followed by this court (that the real intention of the testator as gathered from all parts of the instrument should be given effect) were applied, the request as to the final disposition of the property must be treated as mandatory. The court held, however, that the rule of McNutt v. McComb should control, because the rights of the devisee accrued before any qualification of the language of the opinion therein had been indicated by this court, and that therefore the testator’s mother took an absolute estate in fee, the grant of title not being affected by any limitation attempted to be placed upon it in the succeeding paragraph.
It is a familiar fact that where two decisions of a state court of last resort respecting local law are in conflict, the Federal courts do not regard themselves as bound to follow the later expression to the prejudice of anyone whose rights (especially if contractual and presumptively affected by reliance on the earlier interpretation) accrued in the interval between them, but will exercise their own judgment, and ordinarily give effect to the original view of the state court. (Note, 40 L. R. A., n. s., 396.) Indeed, where there-is no conflict in the state decisions they will not necessarily be followed by the Federal courts with respect to rights that accrued prior to their rendition. (Same note, p. 397; Kuhn v. Fairmont Coal Co., 215 U. S. 349.) The reasons given for this well-established practice have not been entirely uniform. The Wells-Brown case is perhaps exceptional in treating the overruling of a decision as an actual change in substantive law, as though made by the legislature. Moreover, it is apparently not in harmony with a former ruling of the same court, where the later of two conflicting interpretations by a state supreme court of local statutes relating to wills was followed to the disadvantage of a litigant whose rights had accrued in the meantime. (Yocum v. Parker, 134 Fed. 205.) The problems presented by this aspect of the matter, however, are purely those of Federal practice in which this court has but an academic interest, no question of constitutional law being involved.
Although a different theory at one time had a considerable vogue, we think there is now little dissent from the view, which at all events is that of this court, thus expressed in an opinion written by Mr. Justice Benson, wherein the subject is fully treated:
“Courts do not and cannot change the law by overruling or modifying former opinions. They only declare it by correcting an imperfect or erroneous view. The law itself remains the same, although interpre tations may have differed. [Citing cases.] An erroneous ruling may in some circumstances become the law of the particular case, but this will not prevent the court in another action from holding to the contrary. A person who is not .a party or privy in the action cannot acquire a vested right in an erroneous decision made therein.” (Crigler v. Shepler, 79 Kan. 834, 842, 101 Pac. 619.)
If it should appear that the wording of a will might have been influenced by a decision of the supreme court which was overruled after the death of the testator, the matter would doubtless be one to be considered in arriving at the actual purpose in his mind, but no such situation is here presented.
The motion for a rehearing is overruled.
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The opinion of the court was delivered by
Wertz, J.:
Appellee, James N. Snyder, executor of the estate of Charles E. Snyder, deceased, filed in the probate court a petition for approval of his final accounting as to cash receipts and disbursements in the estate, for his discharge as executor, and for the appointment of Elmore W. Snyder, II, as executor in his stead, alleging that the exact assets of said estate had not yet been finally determined and that it was not possible to make a final settlement and it was necessary that said estate remain open until final litigation involving certain assets therein had been determined.
From an order of the probate court granting the relief sought, appellants, Etta V. Limbocker and Clarence E. Hulse, appealed to the district court of Leavenworth County, where a hearing was had on the petition and the trial court found that the assets of the estate had not been finally determined and were subject to the orders of the probate court and possible litigation and that it was not possible to make a final settlement of the estate; that the final and complete accounting of all cash receipts and disbursements of the executor as attached to the petition should be approved; that the administration of the estate should not be closed but should continue until further order of the probate court; and that the executor, James N. Snyder, should turn over all personal property and assets then in his hands to Elmore W. Snyder, II, as newly appointed executor of the estate. The court ordered that plaintiff’s petition for approval of his cash items received and disbursed should be sustained and that he turn over to the newly appointed executor all personal property and upon compliance therewith James N. Snyder be discharged. The court ordered that Elmore W. Snyder, II, be appointed as executor and that the possession of all real estate in said estate be forthwith turned over to him by James N. Snyder. From the order of the trial court, appellants appeal.
The record in the instant case is very incomplete. Appellants filed an abstract which contained their version of what the evidence disclosed at the hearing in the court below. On motion of appellee, this court struck all that portion of appellants’ abstract narrating their version of the evidence. A counter abstract was filed by appellee and a supplemental abstract by appellants which contained three stipulations of fact and considerable colloquy between counsel and the court, which is of no help to this court on review. No evidence was offered by either party at the hearing in the district court nor were there any issues joined between the parties.
Appellants first contend that upon the death of Charles E. Snyder there was on deposit in his personal account $340.00 received as rent from the Lavery Building and that this building had been owned by the Manufacturers State Bank, of which Charles E. Snyder was president; that a few weeks before his death the bank sold to Isabelle H. Snyder the building for $55,000.00 and that the $340.00 was paid by the executor to the Manufacturers State Bank without notice, hearing or court order; and that the funds have never been restored to the estate of Charles E. Snyder. There is nothing in the record to show whether this money was paid with or without an order of the probate court. Moreover, the record discloses that the estate of Charles E. Snyder claimed no interest in said funds and that the same were deposited in a special account in the mentioned bank and, we assume, in the name of the executor of the estate of Isabelle H. Snyder.
It is next contended that after the death of Charles E. Snyder his executor, James, found in his father’s personal safety deposit box a deed duly executed from the Manufacturers State Bank to Isabelle H. Snyder and that the executor has not reported the same in the inventory. The inventory is not made a part of this record; moreover, the executor stated that the estate of Charles E. Snyder was making no claim to the deed or the property and that it was a matter between the bank and Isabelle’s estate. Moreover, it was stated by the executor that this deed had been turned over to the probate court, and we assume it was listed among the assets of the estate of Isabelle H. Snyder.
It is next contended that James as executor of Charles’s estate found in his father’s safety deposit box a deed to himself, apparently executed by the decedent and his first wife, conveying a portion of decedent’s real property to James, and that James placed the deed of record and did not include it in the inventory made by him in Charles’s estate. We find no evidence in the record to sustain this contention and it does not appear that the trial court made any determination of the matter, as it was no part of the cash receipts or disbursements for which the executor sought approval.
It is next contended that among the assets coming into the possession of James as executor was a Nash automobile and the executor and his son personally used the car without compensating the estate therefor. This car was a part of the personal property ordered delivered by James to the newly appointed executor. Again, it does not appear that the question of the executor’s use of this car was a matter before the court for determination in the final accounting of receipts and cash disbursements.
It is next contended that James as executor personally occupied the residence property of decedent rent free and charged the utilities and incidental expenses upon the property to the estate. It does not appear that the question of James’s occupancy of the property was an issue in this case or considered by the trial court. The trial court did approve the incidental expenses necessary for the upkeep of the property, in which we find there was no error.
It appears from the little we are able to glean from the record that the trial court approved the final accounting only with regard to the cash items received by the executor and to the disbursements made, and the questions raised by the appellants, with the exception of the $340.00 item on the Lavery Ruilding, were not raised by any pleadings joined or presented to the trial court for his consideration.
It is a general rule of law that a presumption of validity attaches to a judgment of the district court until the contrary is shown, and before this court will set aside a judgment it must affirmatively be made to appear by an appellant that the judgment is erroneous. (State, ex rel., v. Henderson, 179 Kan. 142, 292 P. 2d 718; Gillen v. Stangle, 175 Kan. 364, 264 P. 2d 1079; Rupp v. Rupp, 171 Kan. 357, 233 P. 2d 709.) Absent such affirmative showing, this court has no other alternative than to affirm the judgment of the trial court.
It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
The defendant, Cruz Casanova, was charged with the crime (G. S. 1949, 21-431) of assault with a deadly weapon with intent to kill. He appeals from his conviction of the lesser offense (G. S. 1949, 21-435) of endangering the life of another under conditions and circumstances which would have constituted murder or manslaughter if death had ensued.
The appellate issues involved are of such nature that, except for those essential to a proper understanding of what the case is about, the pictorial facts are of little consequence and can be briefly summarized.
Late in the evening on February 15, 1956, the defendant and Max Harlow Ashlock, who had been drinking beer in a Wichita tavern and were not acquainted, became mutually involved, for no apparent reason, in a typical barroom brawl. The affray ended when the defendant deliberately broke a beer glass on a marble machine and while using it as a weapon stabbed Ashlock on the left side of his throat inflicting a severe wound which required his hospitalization. Ashlock’s version of the affair, corroborated by witnesses who were present, was that after the altercation had apparently ceased the defendant attacked him with the weapon in question and inflicted the injury above mentioned. Defendant’s version was that there was but one affray and that at a time when it was still in progress, and while he had the broken beer glass in his hand, he and Ashlock simply came together with the result the latter received a cut on the left side of his neck. In any event, after the final incident, the defendant fled the tavern and the victim was taken to the hospital.
Subsequently defendant was arrested and tried on the charge previously indicated. At the close of such trial the cause was submitted to the jury which, with evidence before it as heretofore related, refused to find defendant guilty of the crime of assault with a deadly weapon with intent to kill but did return a verdict finding him guilty, under the provisions of G. S. 1949, 21-435, of the crime of endangering the life of Ashlock under conditions and circumstances which would have constituted murder or manslaughter if death had ensued from the injury inflicted. Following the return of the verdict defendant’s motion for a new trial was overruled. Thereafter judgment was rendered on the verdict and defendant was sentenced to the Kansas State Penitentiary for the period of time prescribed by the provisions of 21-435, supra. Thereupon the instant appeal, limited to alleged trial errors by the specifications of error filed in this court, was perfected.
We now turn to questions raised by appellant in support of his position the court erred in refusing to grant him a new trial.
In closing its case, after having produced several witnesses, including Ashlock, whose evidence disclosed facts as heretofore related the appellee offered, and over the objection of the appellant the .trial court admitted, a transcript made at the preliminary examination of appellant, of the testimony given by one W. R. Walters, a doctor who treated the victim after he had been taken to the hospital. Recognizing that there are many situations where the testimony of a witness given at a preliminary examination may be properly admitted (See State v. Bonskowski, 180 Kan. 726, 728, 308 P. 2d 168) appellant now contends, as he did in the court below, the introduction of the evidence in question was erroneous because no proper foundation had been laid for its admission by the State. In support of his position he directs our attention to the fact the court admitted such evidence upon a showing limited to the return of a subpoena non est and a simple statement, made by the county attorney in open court, to the effect the State had made a diligent effort to locate such witness, had been unable to find him within the State of Kansas, and had been informed he was then somewhere in Cleveland, Ohio.
Mindful that statements of counsel are not to be considered as evidence and that our decisions (See, e. g., State v. Carter, 149 Kan. 295, 297, 87 P. 2d 818) contemplate that a proper foundation for the introduction of testimony of the character now under consideration must be on the basis of testimony under oath, we are inclined to the view the trial court’s action, in admitting this testimony without first requiring the county attorney, or other witnesses, to testify under oath with respect to the facts relied on as the foundation for its introduction was improper. Even so it does not follow, as appellant insists, that its admission without proper foundation resulted in reversible error or requires the granting of a new trial.
The testimony of the absent witness dealt solely with the extent and seriousness of the wound received by Ashlock and was neither necessary nor required in order to sustain the conviction. Long ago, in construing this very same statute, we held that under its terms the offense is complete if any person shall be maimed, wounded or disfigured or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued (The State v. Gentry, 86 Kan. 534, 536, 121 Pac. 352). Prior witnesses of the appellee had already testified to everything necessary to establish all the essential elements of the offense. Under the related circumstances we fail to see where the trial court’s action prejudiced or even affected the substantial rights of the appellant. Therefore, since our statute (G. S. 1949, 62-1718) directs us to disregard all such errors we would not be warranted in holding that the admission of this testimony entitled appellant to a new trial.
We are not required to prolong consideration of appellant’s complaint the trial court erred in giving an instruction on intoxication when that question was not involved in the case. The record makes it clear intoxication was involved and with the record so construed no complaint is made of the instruction given. Of a certainty in the face of a charge, under the provisions of 21-431, supra, to the effect appellant had purposely and with malice aforethought cut and stabbed Ashlock with a broken beer glass with the intent to kill him, it cannot be successfully argued that any prejudice resulted from this instruction.
Complaint is next made of the following Instruction:
“You are further instructed that the Court has admitted evidence of a previous conviction. The defendant was convicted of fourth degree manslaughter in a previous case. In this connection you are instructed that this evidence is admitted only for the purpose to show guilty knowledge, motive, plan or system of operation, or inclinations and tendencies of the defendant, and does in no wise prove the guilt or innocence of the defendant in this action.”
The foregoing instruction was given by the trial court because on cross-examination of the appellant he had admitted commission of a similar offense and that the weapon used by him on that occasion was a broken edge. The gist of this complaint seems to be the use of the phrase “or inclinations and tendencies of the defendant,” as found in the quoted instruction. In this connection it is urged that no where in our decisions is there a case recognizing that evidence of a former crime is admissible to show either inclinations or tendencies of the defendant. We do not agree. As recently as State v. Peasley, 179 Kan. 314, 316, 295 P. 2d 627, we held that evidence of prior' offenses was admissible to show a predilection toward the sort of crime with which a defendant was charged, to show a tendency along that line, and not for the purpose of proving the defendant’s guilt or innocence of the crime in question. Nothing would be gained by here laboring additional arguments advanced by appellant on this point. If further decisions supporting the conclusion just announced are desired they may be found in the opinion at page 260 and at page 264 of the dissenting opinion of former Justice Wedell in State v. Owen, 162 Kan. 255, 176 P. 2d 564.
Next it is urged the trial court erred in its Instruction No. 32 wherein, in outlining the forms of verdict submitted, it made reference to the form of verdict to be returned by the jury if it found appellant guilty under the provisions of 21-435, supra, before making reference to the form of verdict to be returned if it found him guilty under the provisions of 21-431, supra. This in our opinion, contrary to appellant’s position, was a circumstance which reacted in appellant’s favor rather than against him. Hence, without approving the practice, we hold that under the existing facts and circumstances the action of the trial court in this respect constituted a technical error which, under statutory mandate (G. S. 1949, 62-1718) and our decisions (See Hatcher’s Kansas Digest [Rev. Ed.], Criminal Law § 439; West’s Kansas Digest, Criminal Law, § 1186 [4]), must be disregarded.
Having heretofore considered all salient questions raised by appellant and finding nothing in them or in arguments advanced in their support which warrants the granting of a new trial the judgment must be and it is hereby affirmed.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
Plaintiff instituted this action against the defendant under the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59) to recover damages for personal injuries alleged to have been sustained on two separate occasions as a machinist inspector in defendant’s diesel shop at Osawatomie, Kansas. The first injury is alleged to have occurred June 30, 1954, when plaintiff fell into an opening in the subfloor of the cab of a diesel locomotive and the second injury is alleged to have occurred January 23, 1955, when plaintiff slipped on ice on the concrete surface adjacent to defendant’s diesel locomotive washrack.
Defendant’s amended answer in addition to containing a general denial, alleged negligence on the part of plaintiff, and contained the following allegations:
“Further Answering, defendant alleges that plaintiff commenced working for defendant on the 10th day of January, 1951, after having signed and filed with defendant an Application for Employment on January 9, 1951. Said Application for Employment contained a number of considerations and conditions of employment of plaintiff by defendant which were specifically accepted by plaintiff, among which was the following agreement and condition:
“ ‘4. That any misrepresentation or concealment of facts by me in this statement or in my statements to the medical examiner respecting my age, physical condition past or present, qualifications, personal character, and record with fonner employers shall be just cause for my rejection or dismissal from service.’
“Defendant alleges that in said Application for Employment and in plaintiff’s statements to defendant’s medical examiner plaintiff misrepresented and concealed a number of facts respecting his past and present physical condition at that time and his records with former employers by giving false answers to questions contained in said Application for Employment and questions asked him by said medical examiner.
“Plaintiff stated in said Application for Employment that he was employed by Mueller Implement Company of Independence, Missouri, only during the period from 1937 to 1941. Plaintiff further stated in said Application for Employment that the only injury other than minor cuts and bruises which he had ever sustained was a broken, ankle and that he had never filed a claim for damages because of any injuries, and stated to Dr. A. L. Speer, defendant’s medical examiner who examined plaintiff at said time, that he had never suffered from a serious injury, although he also stated to said medical examiner that he had fractured his left ankle in 1945 and had had no trouble since that time.
“Defendant further alleges that said statements so made in said application and so made to said medical examiner were false and untrue and were made with the intent to deceive and defraud defendant; that in truth and in fact plaintiff was also employed by Mueller Implement Company from January, 1948, to January, 1949, and during plaintiff’s employment by said company from January, 1948 to January, 1949, plaintiff fractured the index finger and the middle finger of one of his hands while engaged in said employment, upon which he filed a claim and for which he received compensation payments as a result and in settlement thereof; and that in truth and in fact while plaintiff was an employee of The Santa Fe Trail Transportation Company from March, 1941, to March, 1947, he sustained the following injuries while engaged in said employment and upon which he filed claims and received compensation as follows: May 30, 1942, back sprain, for which he received compensation and medical payments of $55.07; January 28, 1943, inhalation of carbon monoxide gas, for which he received compensation and medical payments of $50.11; June T7, 1943, fracture of left ankle, for which he received compensation and medical payments of $291.50; August 31, 1945, bruised right elbow, for which he received medical payments of $8.00; September 3, 1946, sprained right knee, for which he received a compromise settlement of $864.30.
“Defendant further alleges that defendant and his agents and medical examiner relied upon said false and fraudulent statements made by plaintiff in said Application for Employment and made to defendant’s said medical examiner and by reason thereof gave plaintiff employment, and that if defendant had known of plaintiff’s previous injuries while employed by said Mueller Implement Company and said Santa Fe Trail Transportation Company, he would not have employed plaintiff as physically qualified for employment by defendant, nor would he have employed plaintiff because of plaintiff’s obvious proneness to have accidents, as shown by said numerous injuries sustained by him.
“By reason of all of the foregoing plaintiff is not and was not at any time referred to in plaintiff’s petition an employee of defendant within the meaning, or entitled to the protection, of the Federal Employers’ Liability Act, is not entitled to maintain this action under the provisions of said act, and is not entitled to recover herein.”
Plaintiff moved to strike that portion of the amended answer quoted above on the ground that it failed to state a defense under the Federal Employers’ Liability Act and that it was incompetent, irrelevant, immaterial, surplusage, prejudicial and a conclusion. The trial court sustained the motion to strike for reasons asserted in the motion, and the defendant has appealed from that order.
In considering defendant’s specification of error that the trial court erred in sustaining plaintiff’s motion to strike that part of the amended answer quoted above, we note the rule that an order sustaining a motion to strike an affirmative defense pleaded in an answer and involving the merits of an action is tantamount to the sustaining of a demurrer and is an appealable order (Whitlow v. Insurance Co., 86 Kan. 826, 122 Pac. 1039; Grain Co. v. Co-operative Association, 109 Kan. 293, 198 Pac. 964; Wigton v. Donnelly, 122 Kan. 796, 253 Pac. 400; Miller v. Whistler, 153 Kan. 329, 110 P. 2d 744; In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824.) Further, that a motion to strike an affirmative defense pleaded in an answer and involving the merits of an action will be denied if the defense is sufficient as a matter of law (Small v. Small, 107 Kan. 122, 190 Pac. 623; Stafford v. City of Coffeyville, 161 Kan. 311, 168 P. 2d 91), and, for the purpose of a decision on a motion to strike such defense as insufficient in law, well pleaded allegations will be accepted as true. Stinson v. Wooster, 83 Kan. 753, 112 Pac. 610; Phillips v. City of Wichita, 128 Kan. 411, 278 Pac. 2; Sedan State Bank v. Stephenson, 150 Kan. 210, 92 P. 2d 1; Preston v. Shields, 159 Kan. 575, 156 P. 2d 543.)
The defendant contends that because of plaintiffs false statements and misrepresentations in his application for employment and to the medical examiner, he never became an employee of defendant within the meaning of the Federal Employers’ Liability Act and accordingly, is not entitled to the protection of the act and cannot maintain an action thereunder to recover for the injuries alleged to have been sustained, and cites and relies upon Minneapolis &c. R. Co. v. Rock (1929), 279 U.S. 410, 49 S.Ct. 363, 73 L.Ed. 766; rehearing denied 50 S. Ct. 79, 73 L. Ed. 767, footnote 1; Minneapolis, Etc., R. Co. v. Borum (1932), 286 U. S. 447, 52 S. Ct. 612, 76 L. Ed. 1218; Southern Pac. Co. v. Libbey (1952), 199 F. 2d 341; Fort Worth & D. C. Ry. Co. v. Griffith (1930), Court of Civil Appeals of Texas, Amarillo, 27 S. W. 2d 351; Talarowski v. Pennsylvania Railroad Company (1955), 135 F. Supp. 503; Clark v. Union Pac. R. Co. (1949), 70 Idaho 70, 211 P. 2d 402.
In view of our conclusions later stated, we shall make an extensive review of the authorities cited by defendant, since the complaint is not that the stricken allegations would permit proof of causal relation between the alleged injuries and prior injuries or afflictions of the plaintiff, but rather, that they would permit proof of a retroactive dissolution of the relation of master and servant, or, to restate the last clause, they would permit proof that such relation never existed with respect to the Federal Employers’ Liability Act.
The defendant relies chiefly on Minneapolis &c. R. Co. v. Rock, supra. In that case Joe Rock made application for employment as a switchman. He underwent a physical examination by the company physician. He had previously been treated for ulcers of the stomach, his appendix had been removed, he had a hernia, and he was rejected for employment. He then applied under the name of John Rock and procured another man to represent himself to be John Rock, who successfully passed the physical examination and was accepted as an employee. Joe Rock went to work under the assumed name, and was later injured. The Supreme Court of the United States held that Joe Rock was an imposter; that he was not the man for whose services the carrier had contracted; that he had never taken a physical examination and never became an employee of the carrier; that the concealment of his identity and the procurement of another to impersonate him to take the physical examination constituted gross fraud, which was continuing; and, that at no time was he entitled to the protection or benefit of the Federal Employers’ Liability Act and that he could not recover thereunder.
Four years later the case of Minneapolis, Etc., R. Co. v. Borum, supra, was presented to the Supreme Court of the United States. In that case, when the plaintiff made application for employment he was 49 years old and understood the railroad did not employ men over 45 years old to work in its train service. He falsely stated in his application for employment that he was 38 years old and when submitting to a physical examination, again misrepresented his age. His statement was relied upon by the examining physician and was in part the basis for the physician s finding and report that plaintiff was in good health and acceptable physical condition. At the time plaintiff was injured he was under the age of retirement. It was conceded that neither his age nor his physical condition contributed to his injury. The same eminent jurist who prepared the opinion in the Rock case, supra, wrote the Borum case, supra, and in commenting upon the force and effect of the Rock case and the reasons upon which that decision rested, stated:
“In Minneapolis, St. P. ir S. S. M. Ry. Co. v. Rock, supra, this Court held that one who obtained employment as a switchman for an interstate carrier by railroad by fraudulently evading the company’s rule requiring applicants to submit to a physical examination and who suffered injury in the course of employment in interstate transportation, while the company remained unaware of the deception, was not as of right an employee within the meaning, or entitled to the protection, of the Federal Employers Liability Act, and could not maintain an action for injury under that statute.” (Emphasis supplied.) (p. 449.)
Notwithstanding Borum s false statements, the court concluded he was an employee of the railroad within the meaning of the Federal Employers’ Liability Act and that his misrepresentations did not have a material bearing upon his physical condition nor did they substantially affect the examining physician’s conclusion that he was in good health and acceptable physical condition. It was held the rule announced in the Rock case was inapplicable.
In Talarowski v. Pennsylvania Railway Co., supra, the plaintiff filed a motion to strike the defendant’s affirmative defense in which it was alleged that the plaintiff signed and filed an application for employment with the defendant in which he certified that all questions asked therein were answered truthfully; that plaintiff’s answers with respect to his medical history and physical condition were knowingly false and were made by him with intent to deceive and defraud the defendant; that the defendant’s examining physician relied upon the false answers of plaintiff and by reason thereof plaintiff was employed; and, that if the defendant had known of plaintiff’s previous injury while he was employed by the Delaware Power and Light Company, it would not have employed him as physically qualified. The United States District Court held that the allegations of the affirmative defense summarized above were legally sufficient, but that whether the alleged false statements were made with intent to misrepresent and commit a fraud upon the defendant, or were answers to misunderstood questions, were matters not susceptible of decision on a motion to strike; further, that whether the defendant relied upon the false statements and would not have employed the plaintiff if it had known the truth about the prior injury, was likewise not susceptible of decision by a motion to strike and the court overruled the motion.
In Southern Pac. Co. v. Libbey, supra, Libbey made written application for employment with'the defendant in which he stated he had never been injured; that he had never received a pension or disability rating from the government or any organization, and that he had never been confined to a hospital for surgical operation or following an injury. The examining physician noted signs of injury on his left thigh, and there was evidence from which the jury might have inferred Libbey informed the doctor the scars and deformities were the result of a fracture during early childhood. Libbey joined the Marine Corps in 1941 and while serving on Guadalcanal in October, 1943, he was struck by shrapnel, which shattered the femur of his left leg. Bits of bone were removed and he was hospitalized until Christmas of 1944. He was on crutches when he was discharged from the Marine Corps in August, 1945, with a 70 percent disability rating, which was reduced in August, 1950, to 35 percent. In 1947 he was employed as a seaman in the Army Transportation Corps and fell from one deck to another deck of a vessel and fractured the knee of the previously injured leg, which resulted in an extended period of hospitalization. As a result of the knee injury, he had trouble bending his knee. In August, 1948, he fractured his left wrist in an automobile accident and was hospitalized for six weeks and did not work until February, 1949, when he applied for employment with Southern Pacific Company. He was later injured when he jumped from the cab of a locomotive and in trying to protect his injured left leg, threw all of his weight on the right leg and a fracture resulted.
At the trial the doctor who gave Libbey the physical examination upon his application for employment with defendant, was asked the question which in substance was whether, if he had known the facts concealed by Libbey’s false answers, he would have passed Libbey for employment.' An objection to the question was sustained • and the offered testimony was excluded. The circuit court reversed, holding that the materiality of Libbey's misrepresentations was manifest and that had the rejected testimony been received, the jury might well have found the existence of causal relation between the fraud and the injury, and that under such circumstances the company was entitled to prove that its medical officer acted in reliance upon Libbey’s false statements.
The case of Fort Worth & D. C. Ry. Co. v. Griffith, supra, involved an injury to the plaintiffs eyes. Griffith, in his application for employment, falsely stated that he had never been discharged or suspended from any employment; that his eyesight was good; that he was able to distinguish colors; that he had never been rejected for employment when subjected to physical examination, and that from December, 1923, to August, 1924, he was employed by one Day in Arizona. In August, 1924, Griffith was found to be color-blind by a physical examination conducted on behalf of the Southern Pacific Company and for that reason was discharged by that company. Griffith admitted that because he wanted his application for employment to stand up, he induced Day to write a false letter to the defendant stating that he had been in Day’s employ in Arizona during the period of time he had worked for Southern Pacific. It was held that Griffith had perpetrated a fraud upon the defendant; that there was a want of mutuality, since the minds of the parties had never met; that by inducing Day to write false statements with respect to his employment, he had resorted to positive and affirmative fraud and was not therefore entitled to the protection of the Federal Employers’ Liability Act.
In Clark v. Union Pac. R. Co., supra, plaintiff was employed by the railroád as a brakeman and when attempting to board a moving oil car, the grabiron and sill step were loose on one side and gave away and tended to let him slip under the moving car. To avoid such an injury he threw himself backward, fell from the car, and struck his head on a rail of the adjoining track. The defendant claimed plaintiff was not an employee under the Federal Employers’ Liability Act since he had admitted he made false and deceptive statements with respect to his physical condition. The examining physician testified that if the plaintiff had informed him he was afflicted with epilepsy he would not have recommended him for employment, it being conceded that unless a person afflicted with epilepsy so states or is seen in a seizure, no diagnosis will disclose it. The trial court instructed the jury that the plaintiff’s employment at the time of the injury was such as to bring him within the provisions of the federal act. The Supreme Court of Idaho reversed, holding that the issue of whether plaintiff’s deception so entered into the contract of employment as to vitiate it should have been presented to the jury under separate instructions as to whether the false or deceptive statements affected the factum of the contract or whether there was causal relation between plaintiff’s concealed infirmity and-the accident.
With the possible exception of the Talarowski case, we think inherent in the holdings of the authorities cited by the defendant, that to terminate the relation of master and servant upon the ground of misrepresentations, the misrepresentations must be of such character to substantially affect the examining physician’s conclusion that the employee was in good health and acceptable physical condition at the time of his physical examination and that a causal relation exists between them and the injury sustained by the employee in the performance of his duti'es. Such holdings are in harmony with other decisions hereafter noted.
Although fully cognizant that the decisions of the Supreme Court of the United States are controlling as to the interpretation and effect of the Federal Employers’ Liability Act (Schaefer v. Lowden, 147 Kan. 520, 78 P. 2d 48), we think the majority of the decided cases, both federal and state, support the rule that misrepresentations in an application for employment with an interstate carrier do not render the contract of employment void so as to preclude recovery under the Federal Employers’ Liability Act for negligent injuries inflicted upon him, where the employee was found to be in good health and acceptable physical condition at the time of his physical examination and the misrepresentations had no causal relation to the applicant’s fitness to perform the duties required ’ of him and to the injuries he sustained, notwithstanding they may render the contract voidable and form the basis for its rescission by a dismissal of the employee (Payne v. Dougherty, 8 Cir. 1922, 283 F. 353; Minneapolis, Etc., R. Co. v. Borum [1932] supra; Dawson v. T. & P. Ry. Co. [1934], 123 Tex. 191, 70 S. W. 2d 392 [from which petition to the Supreme Court of the United States for writ of certiorari was denied October, 1934, 293 U. S. 580, 55 S. Ct. 110, 79 L. Ed. 677]; T. & N. O. R. R. Co. v. Webster [1934], 123 Tex. 197, 70 S. W. 2d 394 [from which petition to the Supreme Court of the United States for writ of certiorari was denied October, 1934, 293 U. S. 580, 55 S. Ct. 93, 79 L. Ed. 677, rehearing denied November, 1934, 293 U. S. 630, 55 S. Ct. 138, 79 L. Ed. 716]; Kansas City, M. & O. Ry. Co. of Texas v. Estes, Court of Civil Appeals of Texas [1918], 203 S. W. 1155; Qualls v. Atchison etc. Ry. Co. [1931], 112 Cal. App. 7, 296 Pac. 645; Newkirk v. L. A. Junction Ry. Co. [1942], 21 Cal. 2d 308, 131 P. 2d 535; Southern Pac. Co. v. Libbey [1952], supra; Matthews v. A. T. & S. F. Ry., 54 Cal. App. 2d 549, 129 P. 2d 435; Phillips v. Southern Pacific Co. [1936], 14 Cal. App. 2d 454, 58 P. 2d 688; Clark v. Union Pac. R. Co., supra; Laughter v. Powell [1941], 219 N. C. 689, 14 S. E. [2d] 826, 136 A. L. R. 1116; 56 C. J. S., Master and Servant, § 180, pp. 872, 873; 35 Am. Jur., Master and Servant, § 402, p. 824 [p. 60, 1956 Cumulative Supplement]). See, also, the following cases in which the Federal Employers’ Liability Act was not involved: Williams v. Illinois Central R. Co. (1905), 114 La. 13, 37 So. 992; Matlock v. Railroad (1906), 198 Mo. 495, 95 S. W. 849, 115 Am. St. Rep. 481; Galveston, H. & S. A. Ry. Co. v. Harris (1908), 48 Tex. Civ. App. 434, 107 S. W. 108; Lupher v. Railway Co. (1910), 81 Kan. 585, 106 Pac. 284, 25 L. R. A. (n. s.) 707; Halt v. N. Y. C. & H. R. R. R. Co., 205 NY 317, 98 N. E. 493; Rrown v. Railway Co. (1919), 104 Kan. 505, 180 Pac. 211; L. & N. R. Co. v. Lewis (1927), 218 Ky. 197, 291 S. W. 401; and, Baker v. Beattie (1920), (Court of Civil Appeals of Texas) 222 S. W. 658.
In Dawson v. T. & P. Ry. Co., supra, Mr. Justice Pierson delivered the opinion of the Supreme Court of Texas, and said:
“The fact that he concealed his employment by the Texas Midland Railroad Company, and concealed that he had been injured while in its service and had filed a suit against it, if seasonably applied might have been a ground for cancelling his contract of employment with defendant in error, but would be insufficient to render it void or to terminate the relation' of master and servant. 39 Corpus Juris, p. 276, sec. 401. As such employee and while in the full discharge of his duties, he could not be deprived of the protection of the law or of his right to recover for unlawful or negligent injuries inflicted upon him." (p. 194.)
In Newkirk v. L. A. Junction Ry. Co., supra, the Supreme Court of California, through Mr. Justice Carter, said:
“. . . Where employment is induced by fraudulent representations of tire employee not going to the factum of the contract the employment exists although there may be ground for rescinding the contract, and recovery may be had from the employer for negligent injury to the employee at least where there is no causal connection between the injury and the misrepresentation. . .” (p. 320.) .
In Phillips v. Southern Pac. Co., supra, Mr. Justice Gould said:
“In the present case there appears to be no causal connection between the false statements in appellant’s application for employment and the injury which forms the basis of his claim for damages. If in fact respondent’s negligence was the proximate cause of the accident, it should not be absolved from blame upon the claim that because of appellant’s false statements in procuring employment he was in fact not an employee, where, as here, there was no showing that there was a causal connection between the false representations and the accident. At the most the question of causal connection was a question of fact for submission to the jury.” (p. 458.)
The principal question presented for appellate review is: Did plaintiff’s misrepresentations render the contract of employment void, or merely voidable at the option of the defendant? In light of the principles enunciated in the foregoing authorities, we think that the contract was not void, and that at most it was only voidable which may have formed a basis for its rescission and authorized plaintiff’s dismissal, but, while the relation of master and servant continued it imposed a duty upon the defendant to refrain from injurying plaintiff by its negligence, and in the event of injury, entitled him to the protection of the Federal Employers’ Liability Act.
An examination of the amended answer discloses that defendant attempts to plead within the rule enunciated in the authorities above set forth by alleging that plaintiff misrepresented and concealed facts respecting his past and present physical condition, however, no further allegation is made to describe their nature or character, or their relation to his physical fitness at the time of his employment and we are forced to conclude that such allegation pertains solely to injuries received during previous employment, which in the form and manner alleged, show no relation to his physical fitness to perform the" duties of employment, or to the subsequent injuries alleged to have been sustained. The general purport of the stricken allegations is that plaintiff, with intent to defraud and deceive the defendant, concealed injuries received during previous employment with Mueller Implement Company from January, 1948, to January, 1949, where he fractured two fingers on one hand and was compensated, and with The Santa Fe Trail Transportation Company from March, 1941, to March, 1947, where he sprained his back, inhaled carbon monoxide gas, fractured his left ankle, bruised his right elbow and sprained his right knee for which he was compensated, and that had the defendant known of such injuries, it would not have employed him as physi cally qualified because of his obvious proneness to have accidents; and, that the plaintiff was not an employee of the defendant within the meaning of the Federal Employers’ Liability Act and not entitled to maintain the present action.
The defendant contends that the amended answer alleged causal relation between the misrepresentations and plaintiff’s injuries because of his dubious physical condition and obvious proneness to have accidents. The contention lacks merit. It is obvious plaintiff concealed his previous injuries, but it is not alleged that they rendered him physically unfit and unacceptable for employment, or in what respect they were related to the injuries sustained. In the absence of such allegations, we conclude there was no causal relation alleged in the amended answer which would permit the introduction of evidence to relate the misrepresentations to the injuries sustained. Consequently, the question of causal relation did not exist for submission to the jury.
One of the principal reasons an applicant for employment with an interstate carrier is required to submit to a physical examination is to permit the carrier to ascertain his physical condition and determine his fitness to perform the duties of his employment. Plaintiff submitted to a physical examination and was approved by the medical examiner for employment by the defendant. At that time plaintiff advised the medical examiner of his fractured left ankle and stated it did not trouble him, but he concealed the fact he had sprained his back in 1942, inhaled carbon monoxide gas in 1943, bruised an elbow in 1945, sprained a knee in 1946, and broke two fingers in 1948, for which he received compensation and/or medical payments. It seems obvious that those injuries which occurred three, five, six, eight and nine years prior to his physical examination would not be manifest to the medical examiner, and unless there inhered in them some physical defect which was undetectible, they would not have affected the examiner’s conclusion that he was in acceptable physical condition. But, defendant did not allege those injuries resulted in undiscovered physical defects or that the misrepresentations substantially affected the medical examiner’s conclusion that he was in good health and acceptable physical condition on January 10, 1951. Neither is it alleged that his employment was inconsistent with defendant’s policy or its reasonable rules “to employ only those who are careful and com petent to do the work assigned to them and exclude the unfit from service” (Minneapolis &c. R. Co. v. Rock, supra).
In view of the allegations in the amended answer, or the lack of them, we are compelled to conclude the medical examiner found plaintiff to be in good health and in every way physically fit to perform the duties of his employment, otherwise, he would not have approved plaintiff as physically fit for employment by the defendant. That being the case, plaintiff entered the employ of the defendant as a machinist inspector, which constituted a contract of employment even though voidable, and the relation of master and servant was created which continued over a period of three and one-half years, and until plaintiff’s injuries. In view of the rule heretofore set forth, the defendant, as long as that relation existed, was obligated to exercise the same degree of care for plaintiff’s protection as it was required to exercise on behalf of any other employee entitled to the benefits of the Federal Employers’ Liability Act.
One reason which convinces us beyond doubt that the motion to strike was properly sustained is that it was incumbent upon the defendant to affirmatively plead it remained unaware of plaintiff’s misrepresentations prior to his injuries to allege a defense sufficient in law that the misrepresentations so entered into the contract of employment as to vitiate it under the Federal Employers’ Liability Act (Minneapolis, etc., R. Co. v. Borum, supra), and no such allegation was made. We think this view is substantiated by paragraph 4 of the application for employment, which provided that misrepresentations “shall be just cause for my rejection or dismissal from service.” On the basis of that application form, the defendant could, upon the discovery of the misrepresentations, dismiss the plaintiff, and would be required to do so within a reasonable time after discovery of the deceit, or ratify the voidable contract and permit the employment to continue. Otherwise, if the defendant ascertained plaintiff’s misrepresentations prior to injury, it could pursue a policy of “lay and wait” until injury occurred, and then assert the misrepresentations, as a defense under the federal act.
We conclude the trial court was justified in sustaining the motion to strike the allegations of the amended answer quoted above. As previdhsly indicated, it is not alleged the misrepresentations had causal relation to plaintiff’s fitness to perform his duties and to the injuries he sustained, or that they substantially affected the medical examiner’s conclusion that plaintiff was in good health and acceptable physical condition, or that defendant remained unaware of the deception until after plaintiff’s injuries. These are necessary allegations to permit proof of a defense sufficient in law to defeat plaintiff’s present action.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by respondent and his insurance carrier in a workmen’s compensation case wherein the trial court reversed a denial of compensation by the commissioner by reason of the workman’s failure to file a claim, as required under G. S. 1949, 44-520a, and holding that claimant did file and serve his written demand within 120 days after medical and hospital services were furnished by respondent to claimant. We shall continue to refer to the parties as they were in the court below.
For the purpose of this appeal the facts are those set out as findings by the trial court which, in brief, were that the claimant, who was a driller’s assistant in an oil field, while running tubing into a well, was using a large pipe wrench which slipped and struck the right side of his body, knocked the breath out of him and caused him to fall to his knees. Claimant felt no pain and was aware of no injury at the time of the accident which happened on August 18, 1954. In May, 1955, claimant began to feel pain and discomfort but continued to work until about August 5,1955.
In May, 1955, respondent sent claimant to a doctor in Iola where an X-ray revealed two fractures of the eighth rib on the right side. A later visit to a second doctor in Iola on August 4, 1955, resulted in a diagnosis of a sarcoma to the eighth rib. Respondent then sent claimant to the University of Kansas Medical Center at Kansas City where a malignant tumor was removed from the eighth rib by surgery on August 13,1955.
It was not controverted in the record and the court found that the blow from the wrench ultimately caused the sarcoma and claimant served a proper written-demand on November 17,1955.
The only question involved in this appeal by respondent, therefore, is whether service of the written demand of November 17,1955, was within the required time. The trial court in its findings determined it was and reversed the commissioner’s denial of compensation, which had been made under the provision of G. S. 1949, 44-520a that,
“(1) No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served . . . within one hundred twenty days after the accident. . . .”
The trial court found the claimant served the required written claim within 120 days after medical and hospital services were furnished by respondent.
Before continuing with the trial court’s findings, it may be well to mention that this court on appeal in a compensation case reviews only questions of law. (G. S. 1949, 44-556; Kober v. Beech Aircraft Corporation, 177 Kan. 53, 55, 276 P. 2d 335.) We are not concerned with what the commissioner did but only with the district court’s findings and award. In regard thereto we review the record only to ascertain whether there is substantial evidence to support the findings of the district court. (Andrews v. Bechtel Construction Co., 175 Kan. 885, 886, 887, 267 P. 2d 469; Angleton v. Foster Wheeler Construction Co., 177 Kan. 134, 135, 138, 276 P. 2d 325.) Both the Kober and Angelton cases involved medical treatment as constituting compensation so as to toll the statute (G. S. 1949, 44-520a) requiring timely service of a written claim.
Absent any qualifying circumstances the written claim for com pensation should have been served on or before December 16,1954, and after that date service of a written claim would have been to no avail. Had medical treatment or something constituting treatment been furnished by respondent during the time from August 18,1954, to December 16, 1954, we would then be compelled to hold that the statute was tolled until such time as the treatment ceased. (Graham v. Pomeroy, 143 Kan. 974, 57 P. 2d 19.)
Before further determination, other findings of the trial court must be considered. It stated that under Winkelman v. Boeing Airplane Co., 166 Kan. 503, 203 P. 2d 171, distinguishing features were present that set our case apart from those where the injury was apparent or determinable immediately following the accident and the complainants simply neglected to avail themselves of the benefits of the law by their failure to file their claims for compensation within the statutory time. In support thereof the trial court quoted from the Winkelman case where this court said,
“There is a twilight zone between clear personal injury by accident, which is covered by the act, and disability, which is not covered by the act. No hard and fast rule can he laid down for cases falling within the zone referred to. Each case depends upon the peculiar facts involved. (Hoag v. Laundry Co., 113 Kan. 513, 516-518, 215 Pac. 295.)” (p. 506.)
The trial court further distinguished between our present case and Pittman v. Glencliff Dairy Products Co., 154 Kan. 516, 119 P. 2d 470. In the opinion of the trial court the legislature by using the word accident presupposed an apparent or discoverable injury accompanying an accident since it is the injury and not the accident that is compensable. Finally, in giving force and meaning to the prime purpose of the act — that industry should bear the expense of injuries to workmen occasioned by their employment — the trial court concluded that since the injury was neither apparent nor discoverable until some nine months after the accident, the statutory period for filing a demand did not commence to run until after the furnishing of medical and hospital services by respondent.
Before leaving the legal theory of the trial court — that industry should bear the expense of its workmens injuries — we may say there is plentiful support for its theory in the Winkelman case and the citations therein contained. The trial court was also correct in finding that each case depends upon the peculiar facts involved in it. We must further agree that the Pittman case, notwithstanding opposition thereto by respondent, is distinguishable from this case since there was no such furnishing of treatment by respondent in that case.
We have been unable to find any justification for the trial court’s finding that the legislature intended the 120 days to commence to run from the time the injury could be or was discovered, and by reason of the rule propounded in Graham v. Pomeroy, supra, to which we have long been committed, we must hold the written claim must be filed within 120 days from the date of the accident irrespective of when the resulting injury is discovered. After the expiration of the 120 days any medical treatment or other compensation is ineffective to revive the injured workman’s right to file his written claim. It follows the judgment of the trial court must be reversed and compensation denied.
It is so ordered.
Fatzer, J., dissents.
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The opinion of the court was delivered by
Price, J.:
This action involves the title to a quarter section of land in Haskell County referred to as the “McCoy place,” and which was owned by testator and his wife as joint tenants. Inherent in the case is the question of the validity of her written consent to his will which devised the property (with certain reservations) to a nephew of testator, and the further question whether the will, and her consent thereto, divested her of survivorship rights as a joint tenant.
Harry P. Rooney (hereinafter referred to as Harry) and his wife Marguerite were married in 1917. During their married life they accumulated several thousand acres of land. The “McCoy place” was acquired by them on January 15, 1951. Title was taken in “H. P. Rooney and Marguerite Rooney, and the survivor of them, as joint tenants and not as tenants in common.” The deed was recorded two weeks later.
In December, 1953, Harry became ill and went from his home in Satanta to a hospital in Wichita. On January 22, 1954, he called his attorney cousin, Charles Rooney, of Topeka, and requested that he come to the hospital to prepare a will. The attorney arrived the next morning and in Harry’s room in the hospital there was a detailed discussion as to how he desired to dispose of his property. Marguerite and a nurse were in and out of the room. From the data and information supplied by Harry, the attorney prepared the will in typewritten form, precisely as directed by Harry. That evening the attorney and Marguerite returned to the hospital at which time the three of them discussed in detail the provisions of the will, and Marguerite was apprised of her rights under the will and as a widow by statute. Harry signed the will and Marguerite signed her written consent thereto. Each of their signatures was witnessed by the nurse and the attorney. Although somewhat lengthy, we nevertheless think it advisable to set out the will in its entirety, and it follows:
“Last Will and Testament of Habry P. Rooney
“I, Harry P. Rooney, of Satanta, Haskell County, Kansas, being of full age and sound mind, hereby revoke all former Wills and testamentary dispositions made by me and make, declare, and publish, this to be my Last Will and Testament in manner and form following, that is to say:
“item i
“I desire and direct that all my just debts and my funeral expenses be paid as soon as possible or practical after my death.
“item n
“I give, devise, and bequeath to my sister, Nell Tiller, an undivided One-fourth (/i) interest in and to the Northeast Quarter (NE K) of Section Thirty-three (33) Township Two (2), Range Fifteen (15), Brown County, Kansas, known as the Evans Quarter.
“item hi
“I give, devise, and bequeath to my nephew, Harry Bernard Tiller, One Hundred Sixty Acres (160) in Section Nineteen (19), Haskell County, Kansas, said Quarter known as the McCoy Place, reserving to my wife, Marguerite Rooney, a one-half (&) interest in the mineral rights therein and the existing royalties thereon, and upon her death said one-half interest shall go to my son, Archie Rooney.
“item rv
. “I give, devise, and bequeath to Leslie Rooney all of my interest in and to the Hundred and Sixty Acres of land which my wife, Marguerite Rooney and I own in Powhattan Township, Brown County, Kansas.
“item v
“I give, devise, and bequeath to my son, Archie Rooney, the North One Half (N %) of Section Fourteen (14) in Seward County, Kansas, consisting of Three Hundred Twenty Acres (320) and a tract of land consisting of Twenty-two (22) acres with the improvements thereon adjacent to the Southwest City Limits of Satanta, Haskell County, Kansas, subject to the following restrictions: That my son Archie Rooney cannot sell or alienate either of said tracts of land except to his mother, Marguerite Rooney, until he has reached his- 28th birthday.
“item vi
“I give, devise, and bequeath the East One-half (E %) of the Northeast Quarter (NE JÍ) of Section Twenty-three (23) Township Twenty-nine (29), Range Twenty-five (25), Ford County, Kansas to my nephew, Doctor Jack Dean Tiller, of Wichita, Kansas.
“item vn
“I give, devise, and bequeath to my nephew, Stanley Tiller, of Wichita, Kansas, the West One-Half (W 3á) of the Northeast Quarter (NE JÍ) of Section Twenty-three (23), Township Twenty-nine (29), Range Twenty-five (25), Ford County, Kansas.
“item VIII
“I give, devise, and bequeath a life estate in and to the Northwest Quarter (NW Yi) of Section Twenty-three (23), Township Twenty-nine (29), Range Twenty-five (25), Ford County, Kansas, to my brother, Chester C. Rooney, with the remainder to my nephew, Jackie Rooney, and Donna Lee Rooney Oakes, share and share alike.
“item ix
“I give, devise, and bequeath to my niece, Beulah Bell Daniels of Dallas, Texas, the West One-half (W &) of the Northeast Quarter (NE K) of Section Twenty-two (22), Township Twenty-nine (29), Range Twenty-five (25), Ford County, Kansas.
“item x
“I give, devise and bequeath the East One-half (E %) of the Northeast Quarter (NE ii) of Section Twenty-two (22), Township Twenty-nine (29), Range Twenty-five (25), Ford County, Kansas, to my niece, Rosana Rooney Schneider, Duart, California.
“item xi
“I further direct my wife, Marguerite Rooney, upon my death to pay to Alberta Rooney of Satanta, Kansas, the sum of $500.00 per year for ten consecutive years for the care and schooling of Cynthia Ann Rooney, Alberta and Donald Ray Rooney’s daughter.
“item xii
“I direct that upon my death that my wife pay to my brother, Orlie E. Rooney, of Kansas City, Missouri, the sum of $200.00 each month as long as he lives.
“item vm
“I give, devise, and bequeath all of the balance of my property, both real, personal, and mixed, of which I die seized, to my beloved wife, Marguerite Rooney.
“item xiv
“Included in the real property passing to my wife Marguerite Rooney is a certain tract of land in Section Seven (7), Township Thirty-one (31), Range Thirty-four (34), Seward County, Kansas, and which is not my homestead, and to insure the payment to my brother Orlie E. Rooney, as directed in Item XII, I desire that the land last above described be impressed with a hen to insure the monthly payments as directed in Item XII.
“item xv
“I further direct that the Federal and State Inheritance taxes which will be assessed against my estate be paid by the beneficiaries under the terms of my Will, each their proportionate share, and that my Executor hereinafter named is authorized to enforce the payment by each beneficiary for his or her share even though it were necessary for the Executor to sell the defaulting beneficiary’s devise or bequest for the purpose of payment of said tax.
“item xvi
“I hereby nominate and appoint my wife, Marguerite Rooney, to act as sole Executrix of this my Last Will and Testament without bond.
“In Testimony Whereof, I have hereunto subscribed my name at the City of Wichita, Sedgwick County, Kansas, this 23rd day of January, 1954.
Harry P. Rooney
Testator.
“We, the undersigned, do hereby certify that the foregoing instrument was at the time and place therein stated signed, declared and published by Harry P. Rooney as and for his Last Will and Testament, in the presence of us and each of us, who at his request, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses the day and year last above recorded.
Thelma V. Dirks, R. N. 3742 Central, Wichita'.
Name Address
Charles Rooney Topeka, Kansas
Name Address
“I, Marguerite Rooney, wife of Harry P. Rooney, who signed, declared and published the foregoing instrument as his Last Will and Testament, do hereby declare that I have read the same, understand the provisions thereto contained and the right accorded to me by Statute and I hereby consent to the said Will and accept the provisions therein made for me in lieu of the right accorded to me by Statute.
“In Testimony Whereof, I have hereunto subscribed my name, at the City of Wichita, Sedgwick County, Kansas, this 23rd day of January, 1954.
Marguerite Rooney
“We, the undersigned, do hereby certify that the foregoing instrument was at the time and place herein stated freely and voluntarily signed and declared by Marguerite Rooney, wife of Harry P. Rooney, as and for her wirtten consent to the foregoing last Will and Testament of Harry P. Rooney, in the presence of us and each of us who, at her request and in her presence and in the presence of each other, have hereunto subscribed our names as witnesses thereto the day and year last above written.
Thelma V. Dirks, R. N. 3742 Central, Wichita
Charles Rooney Topeka, Kansas
Harry died on March 15, 1954, and on May 17, 1954, Marguerite, named in the will as executrix, filed a petition in the probate court for its admission to probate. On June 11, 1954, the will and the written consent thereto were proved and admitted to probate, and Marguerite qualified as executrix. On the same date, June 11, 1954, she filed in the probate court the following document:
“Consent Restriction.
“Comes now Marguerite Rooney, widow, of Harry P. Rooney, Deceased, and states that she had explained to her prior to her giving her consent to her husband’s Will her rights under statute. That she had it explained and she understood that as his widow by statute, she was entitled to K of his property, that if she approved his Will she would waive that right.
“She didn’t understand nor did she agree to authorize or consent to her late husband devising by Will any property which she owned in whole or in part. That she did not know until afterwards that he was attempting to devise real estate the title to which was vested in her. That her consent to the Will is restricted as above set out.”
Thereafter, on a date not shown, Harry Bernard Tiller, the devisee of the “McCoy place” in Item III of the will (and concerning which this lawsuit is really about) filed in the probate court a petition for “Disclosure and Establishment of Devise” in which he alleged the probate of the will containing the devise to him (with certain reservations) of the “McCoy place”; that Marguerite, as executrix, had failed, neglected and refused to include the property in the inventory filed hy her, thus attempting to conceal and exclude the same from the jurisdiction of the court, and further alleged that Marguerite was converting the property and the income therefrom to her own use. The prayer was for an order requiring Marguerite to include the property in the inventory and to account for income received from it, and for a further order adjudging the petitioner to be the rightful devisee of the fee simple title to the property, subject only to the reservations mentioned in Item III of the will.
Marguerite filed her written defenses to this petition setting forth that the property in question had been conveyed to testator and her as joint tenants with right of survivorship; that at the time of the execution of the will neither she nor her husband knew that the title to the property was in their names as joint tenants; that she did not learn the true facts of the matter until shortly before the will was admitted to probate, and that such fact caused her to file her “Consent Restriction,” and the prayer was for an order denying the petition and for a further order to the effect that upon her husband’s death title to the land in question vested in her absolutely by virtue of her rights of survivorship.
After hearing the matter, the probate court made an order denying Tiller’s petition and held that he had no right, title or interest to the property in question under Harry’s will.
From this order and finding Tiller appealed to the district court.
Following a full hearing in the district court at which considerable evidence was introduced, the court reversed the ruling of the probate court and held that Tiller was the devisee of the property in question under Item III of Harry’s will, subject only to the reservations mentioned therein. In rendering the judgment the court made findings of fact and conclusions of law as follow:
“Findings of Fact.
“1. Harry P. Rooney and Marguerite Rooney were married in 1917. At that time Harry Rooney owned a section of land in Haskell County, Kansas, subject to a mortgage of $1,800. With that exception his estate at the time of his death represented the enterprise, diligence and work, jointly, by them.
“2. Harry Rooney had at the time of his death in March, 1954, some fourteen deeds to land in Haskell, Seward, Ford and Brown Counties, Kansas, consisting of several thousand acres. The title to the last tract purchased, the McCoy quarter, was in the name of Harry P. Rooney and Marguerite Rooney, as joint tenants, with the right of survivorship. All of the other titles stood in the name of Harry P. Rooney, even including the deed to their home in Satanta.
“3. Harry P. Rooney and Marguerite A. Rooney, his wife, acquired title on January 15, 1951, to the following described tract of land, to-wit:
“Northeast Quarter (NE )i) of Section Nineteen (19), Township Thirty (30) South, Range Thirty-three (33) West of the Sixth P. M., in Haskell County, Kansas.
“Title was acquired by a deed naming the grantees as ‘H. P. Rooney and Marguerite Rooney, and the survivor of them, as joint tenants and not as tenants in common’, which deed was filed in the office of the Register of Deeds of Haskell County, Kansas, on January 29, 1951, recorded in Volume 37 of Deeds at page 60.
“4. Harry Rooney executed his Will in a hospital in Wichita in January of 1954.
“5. At the time of executing his Will he was unaware or had forgotten that the title to the McCoy quarter stood in his name and his wife’s name, in joint tenancy, with the right of survivorship. Marguerite Rooney, likewise, did not know or remember the nature of the title, nor did the scrivener who prepared his Will know.
“6. The consideration paid for said property was the sum of $16,000.00, and said sum was paid out of funds belonging to the testator and his wife jointly. (The payment of the property out of their joint funds and the taking of the title in their joint names resulted from an understanding between them at the time.)
“7. After the acquisition of the property, the testator and his wife received the income therefrom as joint owners, as evidenced by Petitioner’s Exhibit ‘3’, Stipulation of Interest and Transfer Order, and Petitioner’s Exhibits ‘4’ and ‘5’, monthly checks for royalty payments.
“8. The testator, Harry P. Rooney, executed his Last Will and Testament on the 23rd day of January, 1954, after there had been considerable discussion about its various provisions between himself, his wife, and the attorney who acted as scrivener of the Will. Item 3 of the Will purported to devise the ‘McCoy Place’ to the petitioner herein, subject to a reservation of an undivided one-half interest in the mineral rights to the testator’s wife during her lifetime and to a son, Archie Rooney, thereafter, the said ‘McCoy Place’ being the same property above described.
“9. At the time of the execution of the Will, Marguerite A. Rooney, the wife, executed her consent thereto in the presence of the same attesting witnesses, which consent reads as follows:
“ T, Marguerite Rooney, wife of Harry P. Rooney, who signed, declared and published the foregoing instrument as 'his Last Will and Testament, do hereby declare that I have read the same, understand the provisions thereto contained and the right accorded to me by Statute and I hereby consent to the said Will and accept the provisions therein made for me in lieu of the right accorded to me by Statute.
“ ‘In Testimony Whereof, I have hereunto subscribed my name, at the City of Wichita, Sedgwick County, Kansas, this 23rd day of January, 1954.’
“Prior to executing the consent the attorney who had acted as scrivener of both the Will and the consent, carefully explained to her the rights given her by law as a spouse of the testator, and he also explained to her that she did not need to sign the consent if she preferred to take under the law. Mar guerite A. Rooney objected specifically to the devise to Harry Bernard Tiller, and also to one other provision of the Will, but did sign the consent above quoted.
“10. Harry Rooney held title to a two-fifths interest in a quarter section of land in Brown County, Kansas, and by a separate conveyance Marguerite held title to the other three-fifths interest in said quarter. Marguerite was, and is, the owner of a section of land in Kimball County, Nebraska. Harry made no attempt to devise her land, other than the McCoy quarter.
. “11. A few days before the testator’s death, which occurred on the 15th day of March, 1954, the testator had a conversation with the attorney who was the scrivener of the Will, in which he stated that he had discovered the title to the McCoy quarter was owned by himself and his wife as joint tenants, and discussed the matter of changing the will to give the petitioner some other piece of property instead of the McCoy Place. No decision was made as to what other piece of property was to be given to the petitioner, and the testator died a short time later without making any change in the Will.
“12. After the death of the testator, Marguerite A. Rooney, on the 17th day of May, 1954, executed and filed in the Probate Court of Haskell County, Kansas, her petition, as mother and next friend of her minor son, for the admission of the will to probate; and on the 11th day of June, 1954, the will was proven and admitted to probate, and the said consent of Marguerite A. Rooney was also proven and admitted to record. Marguerite A. Rooney was appointed to act as executrix, she qualified in the usual manner, and has continued to act as executrix to date. She has at all times cooperated in the probate of the will. No appeal has ever been taken by anyone from the order admitting the will to probate.
“13. On the 11th day of June, 1954, Marguerite A- Rooney executed and filed in the Probate Court of Haskell County, Kansas, an instrument entitled ‘Consent Restriction,’ which instrument was received in evidence. However, she has filed no petition either in the Probate Court of Haskell County, Kansas, or in any other court, seeking to set aside her consent to the will; and she claims the properties, both real and personal, devised and bequeathed to her in the will.
“14. The executrix, Marguerite A. Rooney, has not included the said real estate in the inventory in the probate proceedings, nor has she given any accounting of the income, if any, therefrom.
“Conclusions of Law.
“1. The Consent of Marguerite A. Rooney to the last will and testament of Harry P. Rooney, both dated the 23rd day of January, 1954, was a valid and unqualified general consent to the terms and conditions of the said last will and testament.
“2. The designated ‘Consent Restriction’ filed by Marguerite A. Rooney in the Probate Court on the 11th day of June, 1954, would have no effect unless the general consent to the will was nullified or modified for some reason.
“3. As provided by G. S. 1955 Supp. 59-603, Marguerite A. Rooney has no election, option or choice except to take from her deceased husband’s estate in strict conformity with the terms and conditions of the said last will and testa ment, one of which terms and conditions was that the ‘McCoy place’ was devised to the petitioner.
“4. By consenting to her husband’s last will and testament, acquiescing and cooperating in its probate, and claiming the devises and bequests made under it in her favor, Marguerite A. Rooney has in effect renounced her title to the ‘McCoy’ property and is estopped to deny the right of her husband to devise it as his own property. Since the deed to the ‘McCoy place’ was recorded she is charged with constructive knowledge of its contents. At the time the will of Harry P. Rooney was signed the McCoy place was discussed between Harry P. Rooney and Marguerite A. Rooney, as shown by the findings of fact, and she executed the general consent to the will.
“5. Marguerite A. Rooney, as Executrix, should be required to inventory the said ‘McCoy place’ as a part of the probate estate of the testator.
“6 The petitioner, Harry Bernard Tiller, is the devisee of the ‘McCoy place’ under the last will and testament of the testator, subject to the reservation of an undivided one-half in the minerals to Marguerite A. Rooney for life and to Archie Rooney thereafter.
“7. In accordance with the requirements of G. S. 59-1401 the said Executrix, Marguerite A. Rooney, should be required to account for all of the rents and earnings from the said ‘McCoy place’ since the death of the testator.
“8. The petitioner, Harry Bernard Tiller, is entitled to his costs herein.”
Marguerite filed a motion for a new trial on the grounds the findings of fact were in part contrary to the evidence; the conclusions of law were contrary to the evidence and law, and on the further grounds of accident and surprise, and newly discovered evidence.
This motion was denied, with the exception that finding of fact No. 6 was amended to read as follows:
“The consideration paid for said property was the sum of $16,000.00. Said sum was paid out of funds available to both parties and the deed was taken in their names as joint tenants, with right of survivorship.”
Judgment was entered in harmony with the findings and conclusions and Marguerite has appealed, her sole specification of error being:
“The Court erred in his findings of facts and conclusions of law and for failure to grant the appellant a new trial, and all other Orders and Judgments adverse to Marguerite Rooney.”
In her brief she states the questions to be:
“1. Can one who is a joint tenant with the right of survivorship devise by will in his lifetime this property and upon his death defeat the survivorship feature, or does the property upon his death pass to the survivor by operation of law?
“2. Is a limited consent by a spouse to her husband’s will contractual in nature, and is it tantamount to a joint will?
“3. Can Item III of the will of the decedent be deleted and the remainder of the will given full force and effect and probated to final judgment?”
It is to be noted that notwithstanding the specification of error, the record does not disclose any motion by Marguerite to set aside any of the findings of fact, and in her brief it is not contended that any of the findings are unsupported by evidence. For that reason we forego a detailed discussion of the evidence and merely state that from our examination of it, it may not be said the findings are unsupported.
We think, however, that in view of the record and the various contentions made, the basic question is whether the findings support the judgment. In other words, if Marguerite’s written general consent to the will is to stand, does Item III of the will divest her of survivorship rights in the property in question?
The question of sufficiency of consent by one spouse to the will of the other has been treated in many decisions by this court dealing with diverse facts and circumstances. The general rule deduced from all of the decisions is that the consent must be given freely, understandingly and intelligently. (In re Estate of Ellis, 168 Kan. 11, 28, 210 P. 2d 417; In re Estate of Patzner, 173 Kan. 133, 244 P. 2d 1183.)
While it is true that Marguerite brought no formal action, as such, to set aside her consent to the will, we think that under all of the facts and circumstances presented, the filing of her so-called “Consent Restriction,” and her written defenses to the petition filed by Tiller, were sufficient to raise the question and vest the court with jurisdiction to determine the matter.
As stated in finding No. 5, at the time the will was executed both Harry and Marguerite were unaware of, or had forgotten that the “McCoy place” was owned by them in joint tenancy with right of survivorship. From one standpoint, therefore, it might be argued that her consent was not “understandingly” given. On the other hand, the evidence shows, and the court so found, that her rights as a beneficiary under the will, and as a surviving spouse under the law, were fully explained to her, and that, notwithstanding her specific objections to the devise in question to Tiller, and also to another provision of the will, she, nevertheless, signed the unqualified general consent. It is not contended that she was in any way overreached, coerced or taken advantage of. The pattern of the entire will is such as to indicate a desire by testator that numerous persons other than Marguerite were to share in his estate. All matters in connection with the execution of her consent were aired fully in the trial court. Some of the evidence was in dispute. Inherent in the court’s findings is the conclusion that the evidence was insufficient to overthrow her unqualified general consent, and she is bound thereby.
This brings us, then, to the ultimate question whether by Item III of the will, and Marguerite’s written consent thereto, she was divested of survivorship rights in the property in question.
In support of her position she cites a number of authorities from other jurisdictions and textbooks (14 Am. Jur., Cotenancy, § 6, p. 80) to the effect that a consequence of the doctrine of survivorship is that a joint tenant cannot devise his interest in the land, for the devise does not take effect until after the devisor’s death, and the claim of the surviving tenant arises in the same instant with that of the devisee and is preferred thereto.
That, however, is not this case, because of the cotenant’s (Marguerite’s ) unqualified written consent to the specific devise in question. While the facts before us are not those in Berry v. Berry, 168 Kan. 253, 212 P. 2d 283, the analogy is clear. In our opinion the general principle underlying the holding in Brooks v. Olson, 170 Kan. 138, 223 P. 2d 721 (and cases cited therein), is applicable to and decisive of the question before us. There it was held that where a testator devises property, title to which is held by his wife, and she gives her written consent to such testamentary disposition, she thereby in effect renounces her right of ownership in the devised property. As a practical matter, that is what was done here. Testator and his wife owned the property in question as joint tenants with rights of survivorship. He devised it, with certain reservations, to a third party. Her unqualified written consent to such devise is therefore binding upon her.
Other contentions made in this appeal have been neither overlooked nor ignored, but in our opinion are either inapplicable or without merit. We are convinced the trial court reached a correct decision in this case, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to foreclose a real estate and chattel mortgage. Trial was by the court, and judgment was rendered for the plaintiff. Defendants Sammie C. Hill and Nelson H. Poe have appealed.
The action was commenced April 6,1955, by The Fourth National Bank in Wichita, as plaintiff, hereafter referred to as Fourth, against the principal defendants Fred Hill and Nellie B. Hill, his wife; their son, Sammie C. Hill; Nelson H. Poe; and, Security National Bank of Kansas City, hereafter respectively referred to as the Hills, Sammie Hill, Poe and Security.
Following trial, the court made extensive findings of fact and conclusions of law, which are summarized as follows: On December 10, 1952, the Hills, for value received, executed to Fourth their promissory note for $186,000 to become due December 10, 1953. To secure that note they executed two mortgages in favor of Fourth dated the same day as the promissory note, which were filed of record in Butler, Harvey and Sedgwick Counties December 11,1952, and upon which the mortgage registration fee was paid. One was a real estate mortgage covering property located in the cities of Potwin, Whitewater and McLain in Butler and Harvey Counties, and the other was a chattel mortgage given as additional security and covering seven elevators located on railroad rights of way at El Dorado, Chelsea, Cassoday, Brainerd, McLain and Furley, Kansas, in Sedgwick, Harvey and Butler Counties, which were operated under various firm names and styles, and which included,
“. . . ‘All fixtures and equipment pertaining to the elevators above described . . .,’ and all the fixtures and equipment pertaining to two elevators in Potwin which were covered by the realty mortgage . . . The chattel mortgage also covered ‘All right, title and interest of Party of the First Part in, to and under the leases and leasehold estates on which the aforesaid elevators on railroad rights of way are located.’ ”
In addition to the described elevators, their fixtures and equipment, other buildings and equipment were situated on the premises referred to in the chattel mortgage, most of which was physically attached to the elevators while others, such as office buildings, a coal shed, two warehouse buildings and one bam, were not so attached but were separate and apart from the elevators. The chattel mortgage also covered fixtures and equipment contained in a store building in Potwin and a store building and general office building in Whitewater, which buildings were covered by the real estate mortgage.
Roth mortgages were made subject to two leases “with option to purchase” the properties covered by the mortgages for $186,000, which leases had been previously entered into between the Hills and Poe on January 14, 1952, and March 1, 1952, for a term of five years at an annual cash rental of $44,000. All of the Hills’ rights and interest in those leases, including the rentals, were assigned by them to Fourth on March 12, 1952, for application upon their indebtedness. The real estate mortgage expressly included all extensions, renewals and changes in the form of the note to Fourth, but the chattel mortgage contained no such provision. Neither mortgage contained an after-acquired property clause. The chattel mortgage contained no warranty, but the real estate mortgage contained the usual warranty except the mortgagors bound only themselves and not their heirs and assigns.
On February 16, 1953, Sammie Hill entered military service and on March 16, 1953, the Hills for a valuable consideration, by quitclaim deed and by bill of sale, sold the properties involved in this lawsuit to Sammie Hill. The sale was made subject to Fourth’s mortgages, which Sammie Hill neither assumed nor agreed to pay.
On January 12, 1954, the Hills, having failed to pay their note to Fourth when it became due December 10, 1953, executed a renewal note to Fourth in the sum of $146,702.51, the amount then due and unpaid. Payments on the renewal note were scheduled as follows: $1,000 on or before February 12, 1954, and a like amount on the 12th day of each succeeding month for ten additional months with the final payment including accrued interest due on January 12, .1955. Fourth retained the original note as security for the renewal note, which likewise was secured by the chattel and real estate mortgages heretofore referred to.
In order to give the Hills an opportunity to work out of their financial difficulties, Sammie Hill leased to Poe on January 1, 1954, the elevator properties described in both mortgages for a period of one year at a monthly rental of $1,000. As a part of the consideration of the new lease, the two leases previously executed by the Hills to Poe in 1952 with “option to purchase” were “cancelled, terminated, released and set aside” subject to the consent and approval of Poe and Fourth. On January 16, 1954, Sammie Hill assigned his rights and interest in the new lease to Fourth, which was accepted by Poe January 22, 1954, and on January 25, 1954, Fourth accepted the assignment and consented to the cancellation of the two prior leases with “option to purchase.” At the time of the assignment of the new lease Sammie Hill was not indebted to Fourth, nor was he ever indebted to it. Pursuant to that lease and assignment Poe made twelve payments of $1,000 each to Fourth between January 22,1954, and January 4, 1955, which, by agreement between the Hills, Sammie Hill, Poe and Fourth, were credited against the indebtedness of the Hills to Fourth.
On April 10, 1954, Sammie Hill gave to Poe his power of attorney to handle his various personal affairs in connection with the feeding of cattle and the operation of the properties involved, including the borrowing of money. On May 1, 1954, Poe procured on Sammie Hill’s behalf a line of credit with Security resulting in substantial loans to Sammie Hill, which were secured by mortgages on cattle and other collateral. In addition to obtaining loans from Security, Poe furnished money of his own for Sammie Hill’s cattle feeding operations from May 1,1954, to November 7,1955, the date of the trial, totaling $107,000.
Fourth failed to file renewal affidavits on the chattel mortgage when due on December 11, 1954. On December 18, 1954, Sammie Hill, through Poe, his attorney in fact, executed a mortgage in favor of Security covering all of the properties described in Fourth’s chattel mortgage and in describing those properties, used the same identical description of the properties contained in the Hills’ chattel mortgage to Fourth. Prior to recording the Sammie Hill mortgage on December 21, 1954, both as a real estate and a chattel mortgage, and paying the mortgage registration fee, Poe procured searches of the records in the three counties in which Fourth’s chattel mortgage was recorded, which revealed that no renewal affidavits had been filed by Fourth on its chattel mortgage from the Hills recorded December 11, 1952. Poe furnished his attorney, Mr. George Stallwitz, the information to prepare the mortgage to Security and he (Poe) had knowledge as late as January 4, 1955, that the Hills’ indebtedness to Fourth had not been paid inasmuch as he paid $1,000 on that indebtedness pursuant to the assignment to Fourth of the 1954 lease between Sammie Hill and himself.
The first actual knowledge Security had of the mortgage executed by Sammie Hill, through his attorney in fact, was when Poe presented it on December 24, or 27, 1954, although Security had previously received a letter from Mr. Stallwitz dated December 21, 1954, notifying it of the existence of the Sammie Hill mortgage and of the existing indebtedness of the Hills to Fourth. Security did not request the mortgage from Sammie Hill or from anyone acting in his behalf, nor was any money advanced for Sammie Hill’s cattle feeding operation by virtue of that mortgage. When Poe delivered the mortgage to Security he discussed with its president the prior existing mortgage to Fourth and told that official that Fourth had “slipped up” on filing its renewal affidavits. Security notified Poe that it did not know whether it would accept the mortgage; that it would not do anything unethical, and that its officers would have to discuss the acceptance of the Sammie Hill mortgage, however, it retained possession of the mortgage pending their decision. When Poe delivered the mortgage to Security, he stated he wanted to protect Security and that he also wanted to protect himself by having the mortgage reassigned to him personally to secure him for money he furnished to feed Sammie Hill’s cattle then mortgaged to Security. Security told Poe that when Sammie Hill’s debt was paid, it could see no reason why the mortgage should not be assigned to him.
On January 25, 1955, approximately 45 days after December 11, 1954, when Fourth should have filed its renewal affidavits, it caused renewal affidavits of the chattel mortgage executed by the Hills to it, to be filed of record. On February 24,1955, a month after Fourth filed its renewal affidavits, Security verbally and by letter notified Fourth that it still did not know whether it would accept the Sammie Hill mortgage. However, in April, 1955, following a conference with its attorneys, Security accepted that mortgage and placed it in its collateral file. In the course of conducting its business, Security maintained a liability ledger sheet for its customers showing indebtedness, endorsers and security, and that sheet did not show that the Sammie Hill mortgage dated December 13, 1954, was ever listed as security for any loans to him. Security did not at any time look to that mortgage as security since it was always adequately secured by other collateral.
On January 1, 1955, Sammie Hill executed a new lease to Poe covering the elevators described in the chattel mortgage to Fourth for a term of two years with an aggregate rental of $24,000 payable at $1,000 per month. This lease contained a similar provision as that in the leases from the Hills to Poe and Sammie Hill to Poe, i. e., that Poe should not make any alterations in or additions to the improvements on the real estate without the written consent of Sammie Hill “and any improvements made should be and become a part of the premises and the property of Lessor, and Lessee shall not . . . acquire any title . . . in or to the improvements so made, or the property to which the same áre attached.” This lease contained no provision for assignment of rents to Fourth for application upon the Hills’ indebtedness.
On April 6, 1955, Fourth commenced this action and on May 17, 1955, Mr. Stallwitz filed an application on behalf of Sammie Hill to stay the action under the Soldiers’ and Sailors’ Civil Relief Act (50, App. U. S. C. A. 501, et seq.). On June 14, 1955, the trial court entered a personal judgment in favor of Fourth and against the Hills for $134,702.51, and on that date overruled Mr. Stallwitz’ application to stay the action on behalf of Sammie Hill and appointed him attorney for Sammie Hill pursuant to the Soldiers’ and Sailors’ Civil Relief Act.
On October 31, 1955, Mr. Stallwitz filed a second application for stay un,der the Soldiers’ and bailors’ Civil Relief Act and a motion for continuance, which were overruled by the trial court, and the case was set for trial November 7, 1955. Attached to and as a part of the motion for continuance was the affidavit of Mr. Stallwitz, which stated that Sammie Hill was in the Armed Forces of the United States serving overseas on the Island of Guam, and that if he were present he would give true testimony,
“That he is the owner of all of the properties, both real and personal, as described in the pleadings . . . and that he acquired the same from Fred Hill and Nellie B. Hill, his wife, on or about March 16, 1953 . . .” (Emphasis supplied.)
When the trial commenced November 7, 1955, Mr. Stallwitz renewed his application for stay for the third time, and it was denied the third time. Fourth introduced its evidence and rested, and the trial court overruled Sammie Hill’s and Security’s demurrers to that evidence. Those defendants introduced their evidence, and at the conclusion of the trial the trial court made extensive findings of fact, heretofore summarized, and conclusions of law, the pertinent portions of which are quoted:
“2. The chattel mortgage of December 10, 1952, and the real estate mortgage of December 10, 1952, between Fred Hill and Nellie B. Hill as mortgagers and Fourth as mortgagee, security for the above described notes, are subject to foreclosure because of the default of the maker of the aforesaid notes to pay the same according to their terms.
“3. The real estate mortgage of December 10, 1952, between Fred Hill and Nellie B. Hill and the Fourth is a first lien on the property therein described.
“4. Security took its chattel mortgage to the personalty described in the chattel mortgage of December 10, 1952, between Fred Hill and Nellie B. Hill and Fourth, with knowledge of the mortgage of the Fourth, and by virtue thereof, are not mortgagees in good faith as referred to in Sec. 58-303, G. S. 1949.
“5. Fourth filed its renewal affidavit to the chattel mortgage of December 10, 1952, on January 25, 1955, in Sedgwick Counay and Harvey and Butler Counties, respectively, and before any other mortgage or lien was obtained thereon in good faith, or purchase made in good faith, and under the provisions of Section 58-304, G. S. 1949, said mortgage continued with the same force and effect as if the affidavit had been filed within the term as set forth in Section 58-303, G. S. 1949.
“6. The chattel mortgage of December 10, 1952, between Fred Hill and Nellie B. Hill and the Fourth is a first lien on the property therein described.
“7. The chattel mortgage of Security is secondary to the chattel mortgage of Fourth on the property therein described.
“9. Sammie C. Hill acquired for a valuable consideration the right, title and interest of Fred Hill and Nellie B. Hill to the real property and personalty in question, subject to the liens of Fourth, and prior to the time that the United States Govenment filed its liens against Fred Hill and Nellie B. Hill, and the United States Government has no interest in the real or personal property in question.
“10. Nelson Poe’s interest in the property in question is limited to his tenancy under lease with Sammie Hill, which is subject to the first and prior lien of the Fourth.
“11. Nelson H. Poe acquired no interest in the chattel mortgage dated December 13, 1954, between Sammie Hill and Security, and any agreement between Nelson Poe and Security, whereby Security agreed to assign the same mortgage to Nelson Poe, after Security had been paid in full by Sammie Hill, is void and of no effect.
“13. Defendant Nelson H. Poe is entitled to file an amended answer setting up his right to an assignment of' the chattel mortgage now held by the Security National Bank.”
On September 11, 1956, in accordance with its conclusions of law, the trial court ordered that the property covered by the real estate mortgage be sold at public auction subject to the right of redemption within eighteen months from the day of sale; that Fourth be given immediate possession of the property described in the chattel mortgage, and that it be sold at public or private sale without equity of redemption according to the terms of the mortgage and the provisions of law relating to the foreclosure of chattel mortgages, free and clear of all liens and claims of Sammie Hill, Poe and Security. The trial court stayed its judgment for fifteen days to permit Poe to remove certain personal property he had placed in the elevator buildings which was not covered by Fourth’s chattel mortgage.
On September 11, 1956, Sammie Hill, Poe and Security filed their motion for a new trial, which was overruled by the court on September 26, 1956, and on that date it was stipulated by the parties that the indebtedness secured by the mortgage given by Sammie Hill to Security on December 13, 1954, had been paid in full.
Following judgment a disagreement arose between Poe and Fourth as to what fixtures and equipment belonged with the elevators at the time the chattel mortgage was executed; what fixtures and equipment had been added by Poe, and whether they became a permanent part of the elevators. Poe claimed ownership to certain molasses equipment he purchased in September, 1954, June, 1955, and July, 1955, consisting of tanks and feed mixers which he installed on the McLain and Potwin elevator premises and in the feed-mill building at El Dorado; also, a fire alarm system he purchased and installed in the properties in September, 1952, consisting of special filament wire and a siren attached to the outside of the elevators. To resolve this controversy, Fourth filed its motion praying that Poe be placed on strict proof of property owned by him and that he be restrained from removing any personal property from the mortgaged premises except upon order of the court. Hearings were had on that motion September 26, 1956, and October 11, 1956. To show the intention of the parties as to what items of property were covered by the chattel mortgage at the time it •was executed, Fourth offered in evidence certain inspection reports prepared December x3,1952, and subsequent dates, by Mills Mutual, an elevator insurance company, at the request of Poe, showing fire hazards, general condition of the buildings and containing an itemized list of personalty, fixtures, furniture and miscellaneous equipment in each building covered by the chattel mortgage and upon which insurance policies were issued to Fourth as the insured mortgagee. Fourth also introduced an itemized list of personalty, fixtures, furniture and equipment in each building furnished by Poe to Fourth following judgment, which corresponded with the list of Mills Mutual except for a few minor items. Poe introduced his evidence with respect to his ownership of the molasses equipment and the fire alarm system and the manner in which they were installed. At the conclusion of that hearing and on October 26, 1956, the trial court determined the personalty, fixtures, and equipment listed in the inspection reports prepared by Mills Mutual and attached to the insurance policies to be the property of the various elevators at the time of the sale, and made the following findings:
“That the descriptions in plaintiff’s chattel mortgage are sufficient to cover all buildings, fixtures and equipment located on the described properties;
“That the molasses equipment and fire alarm system claimed by the defendant Nelson H. Poe are fixtures added to the property, and are covered by and subject to plaintiff’s mortgage;
“That the chairs, desks, typewriters, filing cabinets, bag conveyors, scales, moisture testers, and other movable equipment claimed by tire defendant Sammie C. Hill is included in the description ‘equipment’ and is covered by and subject to the plaintiff’s mortgage.
“That the defendants Nelson H. Poe and Sammie Hill are entitled to remove any desks, chairs, filing cabinets or equipment of this kind which they own and have placed on the described property subsequent to the plaintiff’s mortgage; and if they have removed any such property covered by the plaintiff’s mortgage, it should be returned or replaced.”
On October 29, 1956, a hearing was had upon Sammie Hill’s motion to vacate the judgment entered September 11, 1956, predicated upon 50 App. U. S. C. A. § 532 of the Soldiers’ and Sailors’ Civil Relief Act. Sammie Hill conceded he entered military service February 16, 1953, and acquired the properties on or about March 16, 1953. In an effort to establish that the equitable title passed to him prior to his entering military service, Poe testified to a conversation between Sammie Hill and Fred Hill on January 20, 1953, at Amarillo, Texas, when Fred Hill said to Sammie Hill, “that he wanted to sell to him what he termed the Kansas properties, elevators, buildings,” and that Sammie Hill stated to Fred Hill, “he would purchase the properties.” Fourth objected to Poe’s testimony on the grounds that it was contrary to the pleadings and that neither Sammie Hill’s nor Poe’s answer raised the issue of equitable ownership. The trial court overruled the motion to vacate, and Sammie Hill and Poe have appealed.
As preliminary to a discussion of Sammie Hill’s and Poe’s contentions we point out that nowhere in their brief do they attack the findings of fact of the tidal court as not being supported by substantial competent evidence; further, certain of their specifications of error have not been considered by them in their brief. Under such circumstances, the universal rule of this court is that such questions must be regarded as abandoned and on appeal will not be reviewed or considered. (Brent v. McDonald, 180 Kan. 142, 152, 300 P. 2d 396, and cases therein cited.)
I.
Sammie Hill contends there was a lapse of the security of Fourth’s mortgages. He argues those mortgages were made subject to Poe’s leases with “option to purchase,” which leases were contracts for the purchase of real estate vesting title in Poe, thus making the Hills equitable mortgagees; that Fourth’s mortgage liens were on the equitable mortgage interests of the Hills; that when Sammie Hill acquired Poe’s title with the consent and approval of Fourth, he took free and clear of Fourth’s mortgage liens. The contention is erroneous both in fact and in law.
A lease with an option to purchase real estate creates no estate in the lessee beyond his leasehold interest since an option is simply a contract by which the owner of property agrees with another person that he shall have a right to buy the property at a fixed price within a certain time. (Bras v. Sheffield, 49 Kan. 702, 31 Pac. 306; Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1076; McGregor v. Ireland, 86 Kan. 426, 428, 121 Pac. 358; Davis v. Roseberry, 95 Kan. 411, 414, 148 Pac. 629.) Poe was never obligated to purchase the Hills’ interest and there was no completed contract of sale upon which the Hills or Sammie Hill, after 'he acquired the property, could have sought and obtained specific performance against Poe. Furthermore, all payments made by Poe under the assignment of the 1952 leases to Fourth were paid as rent, not as purchase money. While the Hills had offered and agreed that Poe might have the privilege or option of purchasing the property for $186,000 — the amount of their note to Fourth — during the five-year period, Poe did not exer cise that option but in fact canceled and surrendered it, but, not without consideration to himself. He was relieved of the payment of $32,000 annual rental to Fourth pursuant to the assignment of the 1952 leases. When Fourth consented to the cancellation and termination of those leases and accepted the assignment of rentals of the January 1, 1954, lease, it forewent payment of $44,000 annual rental from the properties and accepted in lieu thereof a $12,000 annual rental.
The “option to purchase” did not create a title in Poe which could merge into Sammie Hill’s title, clearing it of Fourth’s liens. Poe had no interest in the properties other than his rights as a lessee. Fourth’s mortgages were subject to two leases with option to purchase. When Sammie Hill acquired his title it was subject to those leases and to the mortgage liens. The option to purchase was never exercised and those leases and that option were ultimately canceled and terminated. No title adverse to Fourth was acquired. When Fourth consented to that termination its mortgages became first and prior liens. That its security did not lapse but g;ained stature by those transactions is evident. The trial court did not err in holding there was no lapse of Fourth’s security.
II.
Sammie Hill contends that when he acquired the properties in March, 1953, by quitclaim deed and bill of sale subject to the mortgage liens of Fourth, he, as a nonassuming grantee, became a surety for the Hills’ indebtedness to Fourth and that when Fourth accepted the Hills’ renewal note in the sum of $146,702.51 on January 12, 1954, and extended the time of payment to January 12, 1955, he was discharged as a nonassuming grantee of the mortgagors.
There are three defects in that contention. First, if it is assumed that Sammie Hill was a surety, it is clear he participated in the arrangements between the Hills, Poe and Fourth extending the time of payment, and he at least impliedly agreed to the extension. An extension of time of payment of a principal’s indebtedness does not discharge the surety if made with his consent. (Rose v. Williams, 5 Kan. 483; Hubbard v. Ogden, 22 Kan. 363; Roberson v. Blevins, 57 Kan. 50, 45 Pac. 63; Diehl v. Davis, 75 Kan. 38, 88 Pac. 532.) Sammie Hill not only impliedly consented to the renewal note, but was a principal participant in that transaction when he executed the new lease to Poe on January 1, 1954, canceling the old leases with option to purchase and made assignment of rents to Fourth to discharge the scheduled payments of the renewal note.
Second, Sammie Hill was not a surety. He acquired title to the property subject to Fourth’s mortgages, and expressly did not assume nor agree to pay those mortgages, thus he never became hable in any capacity on the mortgage debt. (Crane v. Hughes, 5 Kan. App. 100, 48 Pac. 865; Bowman v. Clyde, 101 Kan. 165, 165 Pac. 820.) Ordinarily a grantee of mortgaged property does not incur a personal liability for the payment of the mortgage debt, enforceable by the mortgagee, merely because he takes title subject to the mortgage and he is not personally liable to the mortgagee on the mortgage, in the absence of circumstances showing an agreement to discharge the debt. (59 C. J. S. Mortgages, § 399, p. 563.) Furthermore, where land is sold subject to a mortgage, the mortgagee’s lien on the land continues, and as between the mortgagor, the mortgagee, and the purchaser, the land is the primary fund for the satisfaction of the encumbrance. (59 C. J. S. Mortgages, § 398, p. 562.) By accepting the quitclaim deed and bill of sale Sammie Hill did not undertake nor become bound to pay the mortgage debt. The trial court found that he acquired title subject to the mortgage liens of Fourth, and that he was never indebted to Fourth. That finding relieved him of all personal liability of the mortgage indebtedness, and, not being bound, he was not a surety for its payment.
Third, the Hills’ renewal note of January 12, 1954, expressly provided, among other things, that the original note secured by the real and chattel mortgage liens be retained by Fourth as collateral security for the payment of the renewal note. This court has consistently held that where a note is given merely in renewal of another and not in payment thereof, the renewal does not extinguish the original debt nor in any way change the debt except by postponing time of payment, and, as a general rule, the holder is entitled to the same rights and remedies as if he were proceeding on the original note. (Howard v. National Bank, 44 Kan. 549, 24 Pac. 983; Bank v. Livermore, 90 Kan. 395, 133 Pac. 734; Bank v. George, 105 Kan. 129, 181 Pac. 574; Security State Bank v. Mossman, 131 Kan. 508, 292 Pac. 935.) After the renewal note was executed for $146,702.51, that debt, less Poe’s payment of $12,000, remained a valid obligation and the' mortgage liens continued as security therefor. (Howard v. National Bank, supra; Cornwell v. Moss, 95 Kan. 229, 147 Pac. 824; Bank v. Livermore, supra.) Moreover, where a mortgage is given to secure the payment of a particular debt, the mortgage is not exhausted until the debt is paid or canceled, although the debt may in the meantime be evidenced by several different promissory notes. (Cooper v. Condon, 15 Kan. 572, Capital Co. v. Merriam, 60 Kan. 897, 56 Pac. 757.)
The renewal note did not discharge nor extinguish the debt secured by the mortgage liens, and the trial court did not err in its holding.
III.
Sammie Hill asserts the Soldiers’ and Sailors’ Civil Relief Act (50 App. U. S. C. A. § 532) forbade entry of the judgment of foreclosure, and, consequently the trial court erred in refusing to vacate the judgment. That section reads in part:
“(1) The provisions of this section shall apply only to obligations secured by mortgage . . . upon real or personal property owned by a person in military service at the commencement of the period of military service . . .”
“(3) No sale, foreclosure, or seizure of property ... of any sum due under any [mortgage], or for any other breach of the terms thereof . . . shall be valid if made after [Oct. 6, 1942] and during the period of military service or within three months thereafter, . . .”
The ownership contemplated by subsection (1) includes equitable as well as legal ownership. (Hoffman v. Charlestown Five Cts. Sav. Bank, 231 Mass. 324, 121 N. E. 15; Twitchell v. Home Owners’ Loan Corp., 59 Ariz. 22, 122 P. 2d 210; Guleserian v. Pilgrim Trust Co., 331 Mass. 431, 120 N. E. 2d 193.)
Was Sammie Hill the equitable owner of the properties prior to his entry into military service? The evidence relied upon to establish this fact has been heretofore set forth. The trial court concluded that evidence did not establish such ownership and overruled tire motion to vacate. We conclude the trial court did not err in that ruling. The testimony was insufficient in law to rise to the dignity of the acquisition of an equitable title. Under the facts and circumstances presented by the record, neither Fred Hill nor Sammie Hill was bound; no price was stated; no terms were agreed upon, and no contract was consummated for the sale of the Kansas properties vesting equitable title in Sammie Hill on January 20, 1953. Thus, he was not entitled to the benefits of Soldiers’ and Saliors’ Civil Relief Act.
IV.
Sammie Hill urges that the judgment below was void in part because of insufficiency of description of the property covered by the chattel mortgage. He argues the mortgage lien extended only to elevators and equipment, and that buildings and equipment not attached thereto were not covered. Reduced to its simplest terms, the contention is that the description may be summed up in one word — “elevators.” Such a contention ignores a cardinal rule of construction that no one word controls the meaning of an instrument; rather, an instrument is to be read as a whole to ascertain its meaning. Furthermore, that question was not raised by Sammie Hill in his answer and the issue was not before the trial court when the case was tried but was injected into the lawsuit when Fourth’s motion was heard requesting that Poe be placed upon strict proof of ownership of property which he might remove from the mortgaged premises.
We are not impressed with the contention. Previous to its assertion, the Hills, Sammie Hill, Poe and Security relied upon the sufficiency of that description. The Hills used that identical description to describe the properties transferred to Sammie Hill by the bill of sale and in the assignment of the leases to Fourth with option to purchase. At the trial and upon appeal, Sammie Hill and Poe strenuously urge that Sammie Hill’s mortgage to Security (which contained the identical description of the property in Fourth’s mortgage) created a valid and subsisting lien prior to Fourth’s. Furthermore, Sammie Hill and Poe used the same identical description to describe the properties covered by the leases of January 1, 1954, and January 1, 1955. Obviously, these appellants attempt to use that description both as a sword and as a shield. In one phase of the lawsuit they insist the property is insufficiently described, and in another phase, strenuously urge its validity.
When the record is considered in its entirety, it is clear the Hills intended to and did mortgage to Fourth the assets of going concerns, i. e., the Potwin Grain Company, the Hill Grain Company, and other grain companies operated under various firm names, and pledged as security for their debt, all properties essential to and an integral part of their operations irrespective of whether all buildings and equipment were physically attached to the elevators. Both parties introduced evidence on that point, which was conflicting. The trial court resolved the conflict in favor of Fourth, and found the description was sufficient to cover all buildings, fixtures and equipment located on the described properties. That finding was supported by substantial competent evidence and will not be set aside on appeal.
V.
It is next contended that a jurisdictional fact, a sine qua non of the decree, was not established since Fourth failed to prove payment of mortgage registration fee on the chattel mortgage. It is argued that since the property described in the mortgage included leases and leasehold estates of elevators on railroad rights of way, an interest in real estate was conveyed within the meaning of G. S. 1949, 79-3101, and that a registration fee was due pursuant to G. S. 1949, 79-3102. The contention is without merit. The Hills owed but one debt to Fourth which was evidenced by their promissory note in the amount of $186,000. That note was secured by “real estate and chattel mortgage covering properties located in Harvey, Sedgwick and Butler Counties, Kansas.” Those mortgages were first recorded in Butler County and a mortgage registration fee of $465 upon the principal debt of $186,000 was paid in that county. Where a mortgage of real estate covers properties situated in two or more counties, the registration fee shall be paid to the officers of the county where it is first presented for record (G. S. 1949, 79-3105). G. S. 1949, Ch. 79, Art. 31 does not require that a mortgage registration fee be paid twice upon the same debt. Indeed, the statute requires that the registration fee be paid only once on a single indebtedness secured by a mortgage upon real property, notwithstanding the debt may also be secured by a lien upon personal property. The trial court did not err in admitting Fourth’s chattel mortgage in evidence, and it had jurisdiction to order the mortgage foreclosed.
VI.
Poe contends the trial court erred in finding that the molasses tanks, the feed mixing equipment and fire alarm system he installed became a part of the mortgaged property. Those are the only fixtures Poe makes claim to in this court. Both leases from Sammie Hill to Poe provided that “any improvements made shall be and become a part of the premises.” As previously indicated, the property described in those leases was identical to the property described in Fourth’s mortgage, and that mortgage covered the entire assets of a going concern. That property and those assets were leased to Poe. Fourth’s mortgage covered “all fixtures and equipment.” The trial court found the fixtures added by Poe became a part of the premises and inured to Fourth by virtue of its mortgage. There was substantial competent evidence to support that finding. However, Poe seeks to overcome the provision of the mortgage and leases by claiming that he, as lessee, and as attorney in fact for Sammie Hill, had agreed he could remove the fixtures. This highly interesting position taken by one who knowingly acted in a dual capacity representing divergent interests, was not accepted by the trial court. . That again was conflicting evidence and the trial court resolved it in favor of Fourth.
VII.
Poe next contends that he had a prior lien to Security’s mortgage on Sammie Hill’s cattle resulting from the advancement of $107,000 to purchase feed (2 Am. Jur. Agency, § 313, p. 245); that Secuiity had a valid mortgage upon those cattle and it became necessary from time to time to sell them to pay that debt; that Poe surrendered his prior lien to Security to permit those sales, and Security agreed to subrogate its rights under Sammie Hill’s mortgage of December 13, 1954, which was a first and prior lien on the property described since Fourth failed to file its renewal affidavits on or before December 11, 1954; that Security was a subsequent mortgagee in good faith (G. S. 1949, 58-303), and, since Sammie Hill’s debt to Security was subsequently paid, he (Poe) was entitled to be subrogated to its prior rights to the property described in Fourth’s mortgage. The contention is based upon an erroneous premise and lacks merit. The trial court found that Security had knowledge of Fourth’s prior existing mortgage when Poe delivered Sammie Hill’s mortgage, and concluded as a matter of law that Security was not a subsequent mortgagee in good faith within the meaning of G. S. 1949, 58-303.
A subsequent mortgagee with notice of a prior existing mortgage is not a subsequent mortgagee in good faith under the statute. The terms “subsequent purchasers” and “subsequent mortgagees in good faith” as used in G. S. 1949, 58-303 mean only purchasers and mortgagees who purchase or take their mortgages after the expiration of two years from the filing of the mortgage without notice of the existence of prior mortgages. (Corbin v. Kincaid, 33 Kan. 649, 7 Pac. 145; Swiggett v. Dodson, 38 Kan. 702, 17 Pac. 594; Howard v. National Bank, supra; Geiser v. Murray, 84 Kan. 450, 114 Pac. 1046.) Mr. Webber, a vice president of Security, testified he knew of Fourth’s prior existing chattel mortgage when Poe delivered Sammie Hill’s mortgage in December, 1954. Furthermore, Fourth filed its renewal affidavits January 25, 1955, prior to Security’s acceptance in April, 1955, of the Sammie Hill Mortgage and under any conceivable situation Security was not a subsequent mortgagee in good faith.
Subsequent to trial Sammie Hill’s indebtedness to Security was paid. Thereafter, it was Security’s duty to cause a satisfaction thereof to be entered of record. (G. S. 1949, 58-308.) Security had nothing to assign, consequently, Poe could not achieve subrogation. There was ample evidence to support the trial court’s findings that Security was not a subsequent mortgagee in good faith within the meaning of the statute. Since Poe’s right to subrogation depended upon Sammie Hill’s mortgage to Security being prior to Fourth’s, which it was not, his contention must fail.
VIII.
Sammie Hill asserts the decree of foreclosure clogged his equity of redemption. He argues that Fourth’s chattel mortgage describing certain grain elevators situated upon railroad rights of way and the leasehold estates on which the elevators were erected, conveyed an interest in real estate; that G. S. 1949, 60-3439 provides where real property is sold under an order of sale, the defendant owner is entitled to a right of redemption, and cites Ehrsam & Sons Mfg. Co. v. Rice, 153 Kan. 483, 112 P. 2d 95. We do not agree, nor do we think that case decisive of the question presented here. That was an action to foreclose a mechanic’s lien for materials furnished to construct a grain elevator situated upon a railroad right of way and a leasehold estate owned by Rice. It was held that a leasehold interest is sufficient to support a mechanic’s lien, and that pursuant to G. S. 1949, 60-1408, which provides where judgments are rendered to enforce such liens, the property shall be sold as in other cases of sales of real estate, and under G. S. 1949, 60-3439 the defendant owner is entitled to a right of redemption.
Whether or not a particular transaction constitutes a chattel mortgage or some other distinguishable transaction depends on tire intention of the parties as shown within the four corners of the instrument, and where unambiguous, by giving the terms thereof, their plain and ordinary meaning. (Anderson v. Rexroad, 175 Kan. 676, 679, 266 P. 2d 320; Brungardt v. Smith, 178 Kan. 629, 636, 290 P. 2d 1039.) In the instant case, the Hills’ mortgage to Fourth was unambiguous, and expressly described the properties as personal property and provided for their sale without equity of redemption. Moreover, that the Hills and Sammie Hill treated the properties as chattels is evident — the Hills by describing them as personal property in their mortgage to Fourth, and Sammie Hill, when he accepted a bill of sale for those properties. In Docking v. Frazell, 38 Kan. 420, 17 Pac. 160, it was held that parties to a chattel mortgage may agree that a building remain personal property, and when foreclosed, a sale thereunder conveys the property to the purchaser at the time of sale.
In Denny v. Van Dusen, Adm'r, 27 Kan. 437, 440, we held that parties to a chattel mortgage may agree upon the method of disposal of the mortgaged property. In that case there was an agreement between the mortgagor and mortgagee that the mortgaged property be sold in a different manner than provided for in § 17 of the chattel-mortgage act (G. S. 1949, 58-309), and the question was whether such an agreement was valid. Mr. Justice Brewer prepared the opinion for the court, and said:
“. . . The contract is valid; there is no statute forbidding it; it is not against public policy, and would oftentimes increase the value of the mortgaged property to the mortgagor as security, without in any manner prejudicing any substantial rights. Why should not the owner of personal property, who may sell absolutely or conditionally, and impose such conditions as the parties may agree upon, or give it away, providing it be not done in fraud of creditors — why should not such owner be permitted to mortgage his property upon such conditions as he sees fit? Freedom in commercial transactions is always to be encouraged, providing only, that such freedom does not trespass upon any statute, do any wrong to the public, or work any injustice to the parties. It would often be of great value to the mortgagor if he could insert a valid stipulation that the mortaged property, when taken possession of by the mortgagee, should be sold in a certain market, or at a certain time, or upon certain conditions. To deprive him of such right would render his property less valuable for the purpose of security, and perhaps prevent him from obtaining such a loan as his necessities require. . . .” (1. c. 440, 441.)
Rights under a chattel mortgage are determined by their own provisions and by statutes relating thereto (National Bond & Investment Co. v. Midwest Finance Co., 156 Kan. 531, 537, 134 P. 2d 639), and we find nothing in the statute precluding a mortgagor from agreeing to waive a right to redeem following condition broken and sale of the property.
Under the facts and circumstances presented, the trial court did not err in directing that the properties be sold without equity of redemption.
IX.
Sammie Hill lastly contends he was entitled to have the action stayed during the period of his military service under the provisions of the Soldiers’ and Sailors’ Civil Relief Act. (50 App. U. S. C. A. § 521.) That section reads:
“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the cowt in which it is pending, on its own motion, and shall, on application to it by some person or some person on his behalf, be stayed as provided in this Act [sections 501-548 and 560-590 of this Appendix], unless, in the opinion of the court, the ability of plaintiff to prosecute tire action or the defendant to- conduct his defense is not materially affected by reason of his military service. Oct. 17, 1940, c. 888, § 201, 54 Stat. 1181.” (Emphasis supplied.)
In State v. Goldberg, 161 Kan. 174, 178, 166 P. 2d 664, we held the wording of the act forces the conclusion that the granting or refusal of a continuance is a question for the trial court’s discretion. (For additional authorities showing courts’ construction of the act as vesting discretion in the courts, see notes of decisions beginning at p. 546 in 50 App. U. S. C. A., and p. 134 in the 1956 cumulative pocket part.)
Did the trial court abuse its discretion? The record shows that from the very first Mr. George Stallwitz, an able and experienced member of the Bar of this state, was appointed to represent Sammie Hill and no showing was made that Sammie Hill’s ability to prosecute his defense was materially affected by reason of his military service. Mr. Stallwitz had several conferences with him relative to his defense, and filed an answer on his behalf; Poe, his attorney in fact, was in court and testified on his behalf at practically every hearing; and, Mr. Stallwitz’ affidavit of October 31, 1955, attached to his motion for continuance, set forth the facts Sammie Hill would have testified to had he been present, which affidavit was part of the files of the case. We are not convinced Sammie Hill was prejudiced by the denial of his applications to stay the proceedings and grant an indefinite continuance, and conclude the trial court did not abuse its discretion.
The l-ecord has been thoroughly reviewed and we find no error. The júdgment is affirmed. It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This is another chapter in protracted litigation relating to the custody of a minor child of divorced parents. A brief resume of the background of the case as disclosed in two earlier opinions of this court will be helpful to a proper understanding of matters now before us.
In 1949 David and Clara Heilman were divorced by a decree of the district court of Riley County. They were the parents of one son, Jack, and custody of him was granted to David’s parents, Fred and Marie Heilman, who resided nearby in Clay County. Reasonable visitation rights were given to Clara.
A few months later David and Clara were remarried to each other at Manhattan and shortly thereafter left for California to make their home, taking their son Jack with them. In 1951 David and Clara again separated. Following various divorce actions in California and Idaho, the parties were divorced by a California court and Clara was awarded custody of the child, who, in the meantime, had been returned to Kansas and was living with his paternal grandparents.
In January, 1953, Clara filed in this court an application for a writ of habeas corpus in an effort to obtain custody of the child. Following a lengthy hearing thereon the commissioner appointed by this court recommended that the writ be denied. In In re Heilman, 176 Kan. 5, 269 P. 2d 459 (cert. denied 348 U. S. 944, 99 L. ed. 739, 75 S. Ct. 366), we upheld the findings and recommendation of the commissioner, our opinion being filed on April 10, 1954.
In 1955 Clara, the mother, filed an application in the district court of Riley County for an order granting to her the absolute control and custody of the child. In October of that year, after a full hearing, the court modified the original 1949 custody order and granted custody to Marie, the grandmother, during the school months of each year, and to the mother during the school vacation period and the Christmas holidays. We are advised that Fred Heilman, husband of Marie, father of David, and grandfather of Jack, died in 1954.
Clara appealed from the decision granting divided custody, alleging error by the court in failing to grant absolute custody to her. For reasons appearing in the opinion, we dismissed Clara’s appeal on June 30, 1956 (Heilman v. Heilman, 180 Kan. 116, 299 P. 2d 601).
Henceforth in this opinion Clara will be referred to as the mother, Marie as the grandmother, and David as the father.
On Tuesday, August 28,1956, the mother filed another application in the district court of Riley County, seeking to obtain the absolute care and custody of her child, who was then ten years old. This motion is not set out in the record before us, but notice of the hearing was directed to the grandmother and her attorney of record. It specified that the motion for change of custody would be presented for hearing on Tuesday, September 4th. Copies of this motion and notice of hearing were served on the grandmother, through her attorney, on Wednesday, August 29th.
On Tuesday, September 4th, the mother and grandmother appeared in court in person and by their respective counsel. At that time the grandmother moved for a continuance on the ground she had not had sufficient time in which to prepare for trial, but stated she had no objection to permitting the mother, a resident of California, to perpetuate her own testimony before the court on September 4th. Following arguments on this motion the court continued the hearing until the next morning, Wednesday, September 5th.
On Wednesday, September 5th, the mother and her counsel, the grandmother and her counsel, and the child, appeared in court in person. The grandmother filed a written answer in which, among other things, it was alleged the court did not have jurisdiction of the matter and that to proceed with a hearing thereon would deny due process of law guaranteed hy the Fourteenth Amendment to the Constitution of the United States, in that the father of the child, who resided in California, had not been given due and reasonable notice of the motion for change of custody; that the child had not been given due and lawful notice of the hearing of such motion; that no guardian ad litem had been appointed for the child to protect his interests, and that she, the grandmother, had not been given due and reasonable notice and time to file a proper answer or to prepare an adequate defense. Other matters contained in the answer are immaterial for our purposes and need not be mentioned.
On the day in question, Wednesday, September 5th, the court denied a further continuance and proceeded to hear the motion. The mother introduced her evidence in support thereof and rested. The grandmother’s demurrer to the mother’s evidence being overruled, she then introduced her evidence and rested. Following this the trial judge and the child held a private conference in the judge’s chambers. The mother and grandmother then were asked if they had any further evidence to offer and both answered in the negative. Counsel for the mother waived oral argument, but counsel for the grandmother did not.
The court, after admonishing the parties to reconcile their personal differences, then made an order granting complete and absolute care, custody and control of the child to the mother, with the further order that the father should have the right to visit with the child at all reasonable times and under reasonable circumstances.
The grandmother has appealed, and contends the trial court erred and denied her the equal protection and due process of law afforded her by the Fourteenth Amendment to the Constitution of the United States (1) in refusing to require notice of the mother’s motion for change of custody be given to the father; (2) in refusing to appoint a guardian ad litem for the lawful protection of the child’s rights, and (3) in refusing to require that reasonable notice of the motion for change of custody be given to her, the grandmother.
We first discuss the failure of the trial court to appoint a guardian ad litem to represent the minor child at the custody hearing. The only authorities relied upon in support of the grandmother’s contention are our statute, G. S: 1949, 60-408, an excerpt from 27 Am. Jur., Infants, § 140, p. 859, and the case of Pierson v. Brenneman, 171 Kan. 11, 229 P. 2d 1019, none of which is in point or has any bearing on the matter. The mentioned statute and case clearly apply only to questions relating to service of process on minors as litigants, and the same is true of the textbook citation.
Under our statute, G. S. 1949, 60-1510, and numerous decisions (see Duffy v. Duffy, 176 Kan. 112, 268 P. 2d 931, and Leach v. Leach, 179 Kan. 557, 296 P. 2d 1078), the jurisdiction of a district court over custody of minor- children in a divorce action is a continuing jurisdiction and the court may, on proper motion and notice, modify or change any order previously made whenever circumstances are shown which make such modification or change proper.
Here the minor child, although' being the “subject” of the litigation, was not a party litigant. He was present in court, as were his mother and grandmother to whom a divided custody order previously had been granted. Perhaps in a given case, and under peculiar and unusual circumstances, it would be proper to appoint a guardian ad litem to represent a minor child at a custody hearing, but there is nothing in the case before us to indicate the court erred in not following such procedure. The • grandmother’s contention as to this matter- is entirely lacking in merit and cannot be sustained.
We next- consider the grandmother’s contention that she was not given reasonable notice of the hearing of the motion for change of custody.
As stated previously, copies of the motion and notice of hearing were served on her on Wednesday, August 29th, and the motion was heard on Wednesday, September 5th. It is true that Sunday, September 2nd, and Monday, September 3rd, a Labor Day holiday, intervened, but even excluding both of those .days, together with the first day ( August 29th), she still had five days notice. The applicable statute is G. S. 1949, 60-722, which provides that where notice of a motion is required “it shall be served a reasonable time before the hearing.” The matter therefore resolves itself into the question whether, under all of the circumstances, the grandmother had reasonable notice.
She has not seen fit to abstract any of the evidence introduced at the hearing, but we are told, and it. is not disputed, that the evidence was largely repetitious of that introduced at the custody hearing in 1955. We do know that this dispute between the mother and grandmother has continued practically unabated ever since 1951, when the mother and father of the child separated for the last time. At the time of this last custody hearing the mother was a resident of California and had returned temporarily to Kansas for the purpose of again attempting to secure full custody of her child. Other than bald statements, the grandmother has presented nothing tending to show that she was prejudiced by the failure of the-court to grant a further continuance of the hearing, or that she was in any way denied a full opportunity to present her side of the matter. There is no showing that the court abused its discretion in -proceeding to hear the motion on Wednesday, September 5th, and the grandmother’s contention in this- respect is lacking in merit and cannot be sustained.
This brings us to the final question — was it error for the court to hear the motion for change of custody without notice to the father who, it is contended, was an “interested party” and therefore entitled to notice? In one sense of the word it of. course cannot be denied that a parent always is an “interested party” in a dispute involving custody of his child, but such concession hardly answers the question presented under the facts and circumstances before us. The father had not been awarded custody. This dispute was between the mother and paternal grandmother. We are told, and it is not disputed, that during the time in question the father was in California. The record does not disclose that his exact whereabouts were even known, and neither does it disclose that the grandmother was in any way prejudiced or handicapped in presenting her side of the case because of the father not being present.
In Lamberson v. Lamberson, 164 Kan. 38, 187 P. 2d 366, involving a custody dispute, care and custody of a child was given to plaintiff father’s mother for a limited time and thereafter to plaintiff father. At a later time the parents of defendant mother filed a motion for change of custody to them, but failed to give notice to either the father or mother. In holding such a procedure to be error it was said in syllabus 1 of the opinion that notice of the hearing of the motion to change custody should have been given to all “interested parties.”
Several months later, in Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190, a somewhat similar question arose. Plaintiff father secured a divorce from his wife and custody of their child was granted to the father’s stepmother with visitation rights in the mother. Later, a disagreement apparently developed between the father and his stepmother and the father filed a motion for an order granting custody to him. Service of this motion was had on bis stepmother, to whom custody had previously been awarded, but no notice of the motion was given to the mother. At the hearing of this motion the father prevailed and his stepmother appealed. One of her contentions was that the trial court was without power or jurisdiction to act on the motion to change custody for the reason that no notice of hearing of the motion was ever given to the mother, and reliance was placed on the statement contained in the Lamberson case to the effect that in such a matter notice of the hearing of the motion should have been given to all “interested parties” and that the mother would naturally fall within that class of persons.
In disposing of that contention this court held that if the phrase "to all interested parties,” as used in the Lamberson case, is restricted to those having custody, or a right to custody under the decree or order sought to be changed, then such statement is a correct statement of law, but otherwise interpreted is too broad and to that extent is disapproved. The (Bailey) case is authority for the rule that where, in an action for divorce and custody of a minor child, the trial court makes an order fixing custody and at a later date a proceeding is instituted to change such custody, the court may make such an order only where the person having custody, or right to custody of the child under the previous order, has had notice of the proceeding to change custody and an opportunity to defend. Further, under the facts of that case, the decision is authority for the proposition that notice to the mother of the motion for change of custody was unhecessary.
As applied to the facts and circumstances of the case before us, the rule is clear. Here the grandmother had previously been awarded partial custody and she was given notice of the hearing, as is required under the rule in the Bailey case. The father, not having custody, or a right to custody under a previous order, was not served with notice of the hearing and, under the rule of the Bailey case, was not entitled thereto as a matter of law. Adherence to the rule of the Bailey case resolves the question before us contrary to the grandmother’s contentions — in other words, it was not error for the trial court to hear the motion for change of custody in the absence of notice to the father.
Perhaps it is correct to say that no two custody cases are identical and present exactly the same questions. Despite certain fundamental rules and guideposts, each case, in the very nature of things, must of necessity be decided upon its'own particular facts and circumstances. Even under the rule of the Bailey case, a trial court, in the exercise of its sound discretion, would still have the right to require notice to one occupying the status of the father in the case before us, and what is said here is not to be construed as precluding a trial court from requiring notice to one occupying such status in a given set of circumstances.
As heretofore stated, the grandmother has not abstracted the evidence at the hearing of the motion for change of custody, and our review is limited to an examination of the pleadings and journal entry of judgment. Nowhere in the record is shown a finding of unfitness of the mother to have custody of her child. Such being the case, she is, under the rule announced in Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658, entitled to custody as against the grandmother.
We find no error in the record and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in equity from an order of the trial court granting an injunction, both temporary and permanent, against picketing for organizational purposes.
The appellees (hereafter plaintiffs) are nineteen individual nonunion workmen who were employed by Jarvis Construction Company (hereafter Jarvis), general contractor, in the construction of an Officers Quarters and Armament and Electronics Shop Addition at the Smoky Hill Air Force Base in Saline County, Kansas. Some of the plaintiffs are carpenters and the remainder are common laborers.
The appellants (defendants below) are The Constructive and General Laborers Local Union No. 685, of Salina, Kansas, an unincorporated association, William Scholl and C. S. Harper (as individuals and as officers) and members of the said Union, for convenience hereafter collectively referred to as the Union (Local No. 685) or defendants.
Picket lines appeared against Jarvis’ Smoky Hill projects on May 23, 1956; the pickets not having been employed on said projects are stranger pickets. The advent of the pickets occasioned the withdrawal of union suppliers, plumbers, electricians, ornamental and structural iron workers, reinforcing workers and other union men employed by subcontractors and other prime contractors working on the projects. Jarvis continued its part of the projects until the construction reached the point at which it could proceed no further without the co-ordinated and allied work that could only be done by those union tradesmen who would not cross the picket line.
In declining to cross the picket lines, the union workers followed an established union policy. The results manifest defendants’ control and the efficacy of the “traditional policy” and brought construction work to a standstill on June 11,1956. Upon submission of the case, the trial court found that plaintiffs had no adequate remedy at law against an imminent, irreparable injury, resulting from picketing which the trial court characterized as unlawful. Its restraining order of June 12, 1956, was promptly obeyed by defendants and the union men resumed work.
With one important exception, which controls the disposition of this case, the facts (taking into account the above variations) and the procedural steps taken in the lower court in all material respects are substantially identical to those in Binder v. Local Union No. 685, 181 Kan. 799, 317 P. 2d 371, Case No. 40,520, decided October 5, 1957.
The exception consists of an extended stipulation entered into by the parties in which it was agreed that the trial court should regard the stipulated testimony as evidence adduced on plaintiffs’ behalf. This stipulation in its entirety concerning the Smoky Hill projects, taken together with all of the facts and circumstances presented by the record in the instant case and the findings and conclusions adopted by the trial court, we construe as an admission, against the interest of the plaintiffs, that the unfair labor practices, out of which this action arose, affect (interstate) commerce.
The plaintiffs’ theory in presenting the case to the lower court was that the picketing was unlawful in that its aim, purpose and objective was to deprive plaintiffs of their common law right to work. This they claimed was not a protected or a prohibited activity under the Labor Management Relations Act, 1947, and thus the National Labor Relations Board did not have jurisdiction of the subject matter since it was not specifically covered by the Act. Whether or not the unfair labor practice affected (interstate) commerce was regarded as immaterial under plaintiffs’ theory. The trial court adopted plaintiffs’ theory of the case and made findings and conclusions consistent therewith.
Actually, the evidence of the plaintiffs supports the findings of the trial court which, in their entirety, established that the purpose of the picketing was to organize the nonunion employees (plaintiffs) of Jarvis on the Smoky Hill projects; that the immediate objective of the picketing by the Union (Local No. 685) was (a) directly to coerce or intimidate the plaintiffs to become members of said Union, and in the event of their refusal, to injure the plaintiffs in their right to work and earn a livelihood; and (b) indirectly to coerce, intimidate and induce Jarvis to coerce or intimidate the plaintiffs to become members of Local Union No. 685, and in the event of its refusal to in any way interfere with the rights of the plaintiffs to join or not to join a labor organization, to injure Jarvis in its business. (See, Binder v. Local Union No. 685, supra.) Such unfair labor practices are prohibited by both the Labor Management Relations Act, 1947, (29 U. S. C. A. § 158 [a] [1] and [b] [1]) and the Kansas statutes (G. S. 1955 Supp., 44-808 [1] and 44-809 [12]).
The substance of the extended stipulation, to which reference has been made, is that the parties agreed if C. S. Harper, business agent of the Union (Local No. 685), were present and called as a witness he would testify that charges were filed with the National Labor Relations Board against Jarvis under 29 U. S. C. A. § 158 (A) (1) and (2) on June 13, 1956, which is just one day after the temporary restraining order was issued in the instant case by the trial court against the Union (Local No. 685). The details of the charge were part of the stipulation. They indicated that Jarvis was being charged with causing demand to be served upon the Union to immediately cease the peaceful picketing; that Jarvis, through counsel employed by Jarvis, caused legal action to be filed against the Union (Local No. 685) by the plaintiffs (its employees); that said counsel caused ex parte restraining orders to be issued restraining the Union from organizational activities; and that the activities on the part of Jarvis prohibited and prevented the plaintiffs, through intimidation and coercion, from exercising their rights to free organization as guaranteed by the Labor Management Relations Act, 1947. It was stipulated that the Regional Director replied upon receipt of the charge that the case had been assigned to William J. Cassidy, Board Agent.
One significance we ascribe to this charge filed with the Board is that it sufficiently identifies the picketing and the parties in the instant case with the charge against Jarvis on the Smoky Hill construction projects. In other words, Jarvis is being charged before the Board with the conduct of the plaintiffs in this action, whereby the Union is seeking to absolve itself from conduct in violation of State law.
It is no longer subject to argument, where unfair labor practices are either protected or prohibited by the Labor Management Relations Act, 1947, that Congress has pre-empted the field in labor relations matters affecting (interstate) commerce and has vested exclusive jurisdiction in the National Labor Relations Board to determine such labor disputes. (Guss v. Utah Labor Board, 353 U. S. 1, 77 S. Ct. 598, 1 L. Ed. 2d 601; Meat Cutters v. Fairlawn Meats, 353 U. S. 20, 77 S. Ct. 604, 1 L. Ed. 2d 613; Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P. 2d 366; Case No. 40,247, decided October 5, 1957; and Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349; Case No. 40,282, decided October 5, 1957.)
Should this court recognize the mere filing of a charge of this character with the National Labor Relations Board, after assignment by the Regional Director to an Agent of the Board, as an exercise of jurisdiction by the Board, it is readily apparent that no action of the type here indicated would stand in a State court against a Labor Union charged with unfair labor practices under State law. It would provide a convenient escape hatch through which a Labor Union could circumvent enforcement of State labor laws.
The Missouri Supreme Court in Graybar Electric Co. v. Automotive, P. & A. I. Union, 365 Mo. 753, 287 S. W. 2d 794, held that a charge filed by the employer with the National Labor Relations Board, where general counsel for the Board refused to issue a complaint, was a decision on the merits that there was no violation of the Act, thus an exercise of National Labor Relations Board jurisdiction. That court further held that the State court did not have jurisdiction of an action to enjoin picketing alleged to be in violation of the Labor Management Relations Act, 1947.
We cannot subscribe to the rule announced by the Missouri court in Graybar (See, dissenting opinion in Graybar, supra). But, inferentially the Graybar decision on the facts before that court is on a sound basis even as to the charge filed with the Board. Note that it was the employer, a large wholesale distributor of electrical products asking compensatory and exemplary damages in the aggregate sum of $550,000.00, that filed the charge with the National Labor Relations Board. The employer thereby admitted by making application to the Board that the unfair labor practices, which he charged to be in violation of the Labor Management Relations Act, 1947, affected interstate commerce, a field of labor relations preempted by Congress.
Likewise, our own Kansas case of City Motors v. International Ass’n of Machinists, Lodge No. 778, A. F. of L., 179 Kan. 157, 292 P. 2d 1102, should not be overlooked. There the trial court found the employer was engaged in a business “affecting (interstate) com merce,” which was not controverted on appeal to this court. A charge, filed with the Board alleging unfair labor practices prohibited by the Labor Management Relations Act, 1947, was pending for determination at the time the trial court ruled. At that particular time, prior to Guss and Fairlawn, many State courts were entertaining false hopes that where the National Labor Relations Board declined to exercise its jurisdiction, by reason of minimum jurisdictional standards which it adopted or otherwise, the State courts would be vested with jurisdiction. The holding in City Motors was that since the Board had not relinquished jurisdiction over the controversy it was sufficient to say that it had accepted jurisdiction and the State court had no jurisdiction.
The question before the court in City Motors concerning the charge filed with the Board is now moot.
Turning our attention to further stipulations, to which reference has been made, the parties in the instant case stipulated that Jarvis in 1956 held construction contracts with the United States Government involving projects at the Smoky Hill Air Force Base, the total contract price of which was approximately $330,000.00 and was obligated by the terms of the contract to finish the work within the term of the 1956 calendar year; and
“That the parties hereto waive the right to introduce additional evidence or testimony as presented to the court in this hearing and that the parties hereto stipulate and agree that the court may, in its determination, consider testimony evidence adduced to its determination of the temporary and the permanent injunction. That the defendants have not introduced any affirmative evidence in a case in chief.” (Emphasis added.)
All of the stipulations herein concerning the charge filed by the Union (Local No. 685) with the National Labor Relations Board were presented as the testimony of C. S. Harper.
Of particular importance is the fact that counsel for plaintiffs have made no objection to any of the stipulations on the ground of materiality or relevance. Construing the stipulation above quoted in the light of the defendants’ affirmative defense — that “. . . the activities herein complained of are solely under the jurisdiction of the National Labor Relations Board by reason of the fact that this dispute primarily concerns interstate commerce . . .” — set forth in defendants’ answer, we conclude that all stipulations must be regarded as affirmative evidence adduced on plaintiffs’ behalf.
Under all of the facts and circumstances presented by the record in the instant case, plaintiffs’ evidence, disclosing application to the National Labor Relations Board charging unfair labor practices prohibited by the Labor Management Relations Act, 1947, in connection with the picketing out of which this action arose, must be construed as an admission that Jarvis’ construction projects at the Smoky Hill Air Force Base affected interstate commerce.
This case, therefore, falls squarely under the rule of Garner v. Teamsters Union, 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228.
It follows that exclusive jurisdiction in the instant case lies in the National Labor Relations Board and the trial court erred in asserting State jurisdiction by granting an injunction.
The judgment of the lower court is vacated and the case remanded with directions to dismiss the action.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the landowners in a condemnation case in which the only question is the amount of interest allowed by the lower court on the judgment awarding compensation.
The appellants were the owners of real property located in the Northeast Quarter of Section 36, Township 12, Range 24, Johnson County, Kansas, of which the appellee, The Board of Education of Common School Distinct No. 110 of Johnson County, under the right of eminent domain took 8.502 acres for school purposes. The appellee, hereinafter referred to as the School Board, filed its petition in condemnation on the 29th day of November, 1954, in the district court of Johnson County, Kansas. On that date the court determined the sufficiency of the petition, found that the School Board had the power of eminent domain, and found that the lands sought to be condemned were necessary to the lawful purposes of the School Board. It thereupon appointed three commissioners to appraise the value of said lands and assess the damages for the taking of the same. The commissioners published notice that they would meet on December 17, 1954, to appraise the value of said lands and determine the damage, if any, to the remaining tract.
On December 28, 1954, the commissioners filed with the clerk of the district court their report, dated December 17, 1954, in which they appraised the lands taken at $1,500.00 per acre, or a total of $12,753.00, and on December 28, 1954, the court approved the appraisement. On the same date, December 28, 1954, the School Board paid into thef court the amount of the award and court costs.
The appellants appealed to the district court from the award and the case was tried to a jury on the 17th day of June, 1955. The School Board did not appeal. The jury awarded $1,500.00 per acre for the lands taken, and allowed the sum of $2,649.80 for damages to the remaining tract, the commissioners having awarded nothing as damage to the remaining tract. The total award was thus increased by the jury to the figure of $15,402.80.
The School Board filed a motion for a new trial within three days but it was not brought before the court until a motion for judgment was filed more than one year thereafter by the appellants as follows:
“Motion for Judgment.
“Come now the above named Plaintiffs and move the Court for an order in the event that the Defendant’s motion for a new trial be overruled, entering judgment for Plaintiffs and against Defendant in the sum of Fifteen Thousand Four Hundred Two and Eighty Hundredths ($15,402.80) Dollars, together with interest thereon at the rate of six (6%) per cent per annum from the 17th day of December, 1954, to the 17th day of June, 1955, and with interest on the aggregate sum at the rate of six (6%) per cent per annum from the 17th day of June, 1955, until satisfied, and for the cost of this action.”
Hearing was set for the 17th day of July, 1956. On that date the School Board appeared and withdrew its motion for a new trial.
The journal entry of judgment recited the stipulations of the parties. Among them was a stipulation “That the date of taking the property owned by the plaintiffs was December 17, 1954.” Other stipulations recited the substance of the facts heretofore related.
Following the stipulations pertinent portions of the journal entry material herein read as follows:
“The defendant withdraws motion for new trial and argument is presented on plaintiffs’ motion for judgment.
“And the court being fully advised in the premises after hearing said arguments, doth find:
“1. That the plaintiffs are entitled to interest at the rate of 6% per annum on the amount of $2,649.80, from December 17, 1956, [1954] until paid.
“2. That the plaintiffs be not allowed interest on the money paid in to the court within thirty days after the return of the appraisers.
“It Is Therefore Considered, Ordered, Adjudged and Decreed that the plaintiffs have judgment against the defendant in the amount of $15,402.80 plus interest at the rate of 6% per annum from December 17, 1954, on the sum of $2,649.80, until paid, making the amount of the judgment $15,654.61.”
On the 18th day of July, 1956, the School Board made full payment of the balance to the clerk of the district court.
The appellants filed a motion to set aside the judgment, and requested the court to enter judgment in accordance with the motion for judgment heretofore related in full.
This motion of the appellants was overruled on the 24th day of July, 1956, and appeal was properly taken therefrom and from all other rulings adverse to the appellants.
Six specifications of error are set forth, all of which resolve into the single question of interest computation. Insofar as is material to a ruling herein these specifications will be presented in discussing the questions involved.
The first question involves the date from which interest is to be computed in a condemnation action on the facts hereinbefore set forth. It must be noted that prior to the order of the district court on the 17th day of July, 1956, the parties stipulated that the date of the taking of the property owned by the appellants was December 17, 1954. It was upon this stipulation that the court entered its order. The record discloses that the reason this date was specified in the stipulation as the date of the taking was that construction equipment was moved on the premises on this date at the directions of the School Board. (See: Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138.)
Appellants’ stipulation estops them from declaring any other date as the date of taking. It was only in the post-trial motion after judgment had been entered that the appellants disagreed with their prior stipulation. (Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 359; Tamsk v. Continental Oil Co., 158 Kan. 747, 150 P. 2d 326; and Stanolind Oil & Gas Co. v. Cities Service Gas Co., 181 Kan. 526, 313 P. 2d 279.)
The right of tire appellants to recover interest is not controverted by the School Board. (Great Lakes Pipe Line Co. v. Carson, 168 Kan. 100, 211 P. 2d 70.) The only question is how much. Where lands are appropriated under eminent domain statutes, the general rule is that where there is a substantial lapse of time between the actual taking of the property and the payment, interest on the value of the lands taken and of the damages for the taking of the property from the time of taking until final payment, or what amounts to the same thing, damages in the nature of interest for the delay in compensation, is properly allowable, provided the award of the appraisers is increased by a jury. (Bruna v. State Highway Comm., 146 Kan. 375, 69 P. 2d 743; Great Lakes Pipe Line Co. v. Carson, supra; and Flemming v. Ellsworth County Comm’rs., 119 Kan. 598, 240 Pac. 591.)
The next question involves the sum of money on which interest is payable. Prior to the adoption of G. S. 1955 Supp., 26-102, (L. 1953, Ch. 200, effective June 30, 1953), a landowner was not entitled to draw down the amount of a compensation award paid into court and be consistent with his appeal. (Miltimore v. City of Augusta, 140 Kan. 520, 38 P. 2d 675; Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750; Wilhite v. Judy, 137 Kan. 589, 21 P. 2d 317; and Clothier v. Wallace, 137 Kan. 928, 22 P. 2d 462.)
Under the law as it then existed, the property owner was entitled to interest on the total amount of the final award when an owner appealed and a jury increased the award of the appraisers. The fact that the condemning authority had deposited the sum of money awarded by the commissioners with the clerk of the district court made no difference. (Miltimore v. City of Augusta, supra; Gulf Railroad Co. v. Owen, 8 Kan. 409; W. & W. Rld. Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75; Calkins v. Railroad Co., 102 Kan. 835, 172 Pac. 20; and Flemming v. Ellsworth County Comm’rs., supra.)
The appellants argue that G. S. 1955 Supp., 26-102, relates only to cases in which the condemning authority appeals from the commissioners’ award and has no applicability to cases where the property owners appeal from the award. This contention is not in accordance with the present statute as we construe it.
For purposes of convenience and clarity in further discussion the various provisions of the statute have been separated by inserting numbers (1) to (10), incl., in the statute, effective since June 30, 1953, which provides:
“[1] If the petitioner or the owner or any lien holder of record of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions: [2] Provided, however, If petitioner desires to take immediate possession of the property condemned but desires to appeal from the award of the appraisers, then said petitioner shall file with the clerk of the court a verified declaration or statement of the sum of money estimated by said condemner to be just compensation for the land taken, including damages, [3] and by depositing the amount for which the property taken was appraised with the clerk of the court, to the use of the persons entitled thereto, [4] and said lands shall be deemed to be condemned and taken for the use of petitioner, and title to said lands shall vest in said petitioner and condemner; and said final compensation shall be ascertained, established and awarded by judgment on appeal; [6] which payment as aforesaid by the condemner shall be without prejudice to petitioner’s right of appeal. [7] The court may order that the sum of money estimated by the petitioner as shown by the verified declaration or statement hereinbefore provided for be paid forthwith for or on account of the just compensation to be awarded in said proceeding. [8] If the compensation finally awarded in respect to said lands, or any parcel thereof, shall exceed the amount of the money paid in by condemner and so received by any person entitled, the court shall enter judgment against the condemner for the amount of the deficiency with interest at the rate of six percent per annum from the date of taking to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. [9] If the compensation finally awarded to any owner or lien holder is less than the amount that has been paid to him, the court shall enter judgment against him and in favor of the condemner for the overpayment. [10] The acceptance by the owner, hen holder, or interested party of the full amount of the award of the commissioners, or the amount paid into the court or any part thereof~by the condemner, as set forth in the verified statement or declaration of said condemner as aforesaid, shall be without prejudice to the right of appeal by said landowner, lien holder, or interested party, as provided herein, the issue of compensation to be determined on appeal by jury trial, and final judgment of the court.”
Provision No. 1 is identical with G. S. 1949, 26-102, as it appeared prior to amendment in 1953. All provisions following No. 1 were added by the legislature in 1953. As is normally the case when a statute is drafted, not all of the contingencies which arise and call for application of the statute are foreseen by the legislature. Circumstances arise for which no specific provision is written in the statute. This makes for litigation. Patent on the face of this statute, however, is the fact that the provisions are not even consistent with each other.
The change in the statute was no doubt intended by the legislature to alleviate a condition of hardship to a landowner, lien holder, or interested party caused by delay, resulting from litigation, in the payment of compensation for land taken, where the condemner took immediate possession of the land condemned.
The argument of the appellants, under the statute as adopted, is plausible and merits some discussion. By reading provision No. 3 and provision No. 8 together it would appear that the condemner, who desires immediate possession but desires to appeal, is obligated to pay the entire award of the appraisers into court, that such payment is for the use of the persons entitled thereto, and that such persons are entitled to receive all that is paid into court. If this be so, then how can provision No. 7 be reconciled? Is the district court entitled to exercise its discretion upon application and order the lesser sum, established by the verified declaration or statement of the petitioner, to be paid forthwith as just compensation? If this is so, then does the statute by provision No. 8 deny interest to the . landowner on that portion which he cannot receive under order of the court but which has been paid into court? If a district court is obligated under the word “may” in provision No. 7 to exercise its discretion either to order the sum estimated by the verified declaration or statement of the condemner paid forthwith as just compensation or to refuse such order and deny any compensation whatever until final judgment, is not the purpose of the act defeated because the condemner in a position of control may declare a ridiculously low figure in its verified declaration or statement and thereby defeat not only the immediate payment of just compensation but avoid payment of interest under provision No. 8 as well? If that is the interpretation, such predicament for the landowner would unjustly force him to settle with the condemner at less than the fair market value or less than full compensation.
If a landowner is entitled to withdraw all of the funds paid into court, and these funds represent the full appraised value, where a condemner desires to appeal and files a verified declaration or statement, then provision No. 10 providing that a landowner may accept the full amount of the award without prejudice to his right of appeal, could be consistently construed to mean that this was permissible only where the condemner appealed and desired immediate possession.
Fortunately, the instant case does not concern an appeal in which the School Board desired immediate possession, but also desired to appeal, and filed a verified declaration or statement of its estimate of just compensation. We, therefore, do not here or now decide that question or attempt to reconcile or construe the provisions of the statute noted.
In the instant case the School Board paid the entire award of the appraisers into court, took immediate possession and did not appeal. Could the appellants have withdrawn the funds paid into court? If so, interest may be computed only on the increase over the award of the appraisers.
While an attempt has been made by the legislature to specifically spell out the provisions exclusively applicable to the situation where the petitioner desired to take immediate possession of the property condemned, but desired to appeal from the award of the appraisers (see provisions No. 2 to 7, incl.), we think the intention of the legislature from the whole statute clearly extended the same privileges to the landowner, lien holder, or interested party.
Where a landowner appeals provision No. 10, deleting portions inapplicable, reads:
“The acceptance by the owner ... of the full amount of the award of the commissioners . . . shall be without prejudice to the right of appeal by said landowner ... as provided herein, the issue of compensation to be determined on appeal by jury trial, and final judgment of the court.” (Emphasis added.)
Our search is directed back to the entire statute by the words “as provided herein,” set forth in provision No. 10, to determine which of the provisions are applicable where the landowner appeals. By provision No. 1 the landowner is given the right of appeal. Provision No. 8 and provision No. 9 are both complete sentences in themselves within the same paragraph as provision No. 1 and provision No. 10. They apply with equal vigor whether an appeal is taken by either the landowner or the condemning authority, or by both. In either event, the compensation finally awarded on appeal shall be handled by the district court as directed under provisions No. 8 and No. 9.
Under the provisions of G. S. 1949, 26-101, a petitioner that desires to acquire the land at the appraised price shall within thirty days deposit with the clerk of the district court the total amount of the appraisement and pay the costs and appraisers’ fees, at which time title to the land condemned immediately vests in the petitioner and it shall be entitled to immediate possession.
By the authority of provision No. 10 in 26-102, supra, the landowner is entitled to withdraw, upon order of the court, the entire award paid into court by the petitioner, even though the petitioner does not appeal, without prejudice to his right of appeal. To hold that the petitioner must appeal before the landowner has the right to withdraw the funds without prejudice to his right of appeal would necessitate reading a provision into the statute which is not there. This we cannot do.
Therefore, where the appellants (landowners) are entitled to withdraw the full amount of the appraisers’ award paid into court by the condemning authority without prejudice to their right of appeal upon court order, where the compensation finally awarded exceeds the amount of money paid in by the condemner, they are entitled under the statute (provision No. 8) to interest at 6% on the amount of the increase from the date of the taking to the date of payment. Interest cannot be allowed on the sum which has been paid into court by the condemner.
The appellants could have made application to the district court for the withdrawal of the funds paid into court by the petitioner, without prejudice to their right of appeal. And, on the record before this court there appears nothing which could have prevented the trial court from granting such request.
The next question considered is whether interest at 6% should be compounded, first by allowing interest at 6% on the increase from the date of the taking to the date of the jury verdict and then allowing interest at 6% on the entire sum from that date, to the date of payment.
This question requires an answer to the question: When was judgment entered on the jury verdict? The appellants contend that the provisions of G. S. 1949, 60-3117, are applicable. This section reads as follows:
“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special or the court order the case to be reserved for future argument or consideration.”
Appellants argue that it was the duty of the clerk to enter the judgment on the verdict on the day it was returned, namely June 17, 1955, citing Koontz v. Weide, 111 Kan. 709, 208 Pac. 651; and Degnan v. Young Bros. Cattle Co., 152 Kan. 250, 103 P. 2d 918. In neither of these cases was there a special verdict.
It must be noted, however, that in effect the appellants regarded the judgment in the instant case as entered on July 17, 1956, when the judgment was announced. A fact not heretofore disclosed in the statement of the case is that special questions were submitted to the jury in the instant case. The jury made special findings in answer to these questions. A motion for a new trial was filed within three days as required. When approximately thirteen months had elapsed and the motion for a new trial had not been presented, the appellants appeared before the district court with a motion for judgment as heretofore set out. The appellants thereby recognized that judgment had not been entered in their favor on the verdict. Judgment was entered on the 17th day of July, 1956, as recited in the journal entry heretofore quoted. In view of this, the appellants cannot be heard to say now that the judgment was rendered on June 17, 1955, when, in fact, they recognized by their motion that it had not been entered. (McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P. 2d 787.)
There is an additional reason why judgment was not entered by the clerk on the 17th day of June, 1955. The provisions of G. S. 1949, 60-3117, heretofore quoted, cannot be read separate and apart from die provisions of G. S. 1949, 60-3118, which read:
“Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the couit has ordered the case to be reserved, it shall order what judgment shall be entered.” (Emphasis added.)
It follows that judgment did not, as a matter of course, follow return of the general verdict, there being special findings by the jury, and that until the trial court ordered what judgment should be entered, there was no judgment. It is not contended any judgment was ordered on the general verdict and special findings until the 17th day of July, 1956. When the trial court ruled on appellants’ motion for judgment, the ruling did not have the effect of setting aside a judgment rendered at a prior time or rendering judgment retroactively to the time of the general verdict. (Atkinson v. Cardinal Stage Lines Co., 145 Kan. 639, 66 P. 2d 553; and In re Estate of Lightfoot, 163 Kan. 369, 182 P. 2d 887.)
It follows that the trial court properly computed interest without compounding it.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This was a Workmen’s Compensation case. The trial court affirmed the award of the Workmens Compensation Commissioner denying compensation, and the employee has appealed.
The legal question presented is whether the claim for compensation was made in time under our statute (G. S. 1949, 44-520a), which so far as here pertinent reads:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or his duly authorized agent, or by delivering such written claim to him by registered mail within ,one hundred twenty days after the accident, or in cases where compensation payments have been suspended within one hundred twenty days after the date of the last payment of compensation; . . .”
The facts disclosed by the record may be summarized as follows:
The appellant, George Otto Fitzwater, was a man sixty-eight years of age and working for the Roeing Airplane Company on Friday, November 20, 1953, in the Salvage Department. His duties consisted of hauling trash from the plant to the incinerator by the use of a tractor that was employed to pull trash-filled carts. His work would require him to pull the carts by hand on occasion in the process of hitching them to the tractor. The trash carts were mounted on hard rubber wheels and were approximately four feet wide and six feet long. Oftentimes the carts were hard to push or tow by hand because the wheels would lock. About two or three months prior to December, 1953, the claimant commenced having pains and cramps in his chest. On the evening of the 20th day of November, 1953, the claimant, while pulling three of the carts by hand that rolled heavily, noticed a cramping across his chest that caused him to lose the strength in his arms and necessitated his leaning against the tractor and resting for a period of five to ten minutes. The cramping pains occurred between 12:00 and 1:00 o’clock a. m. There were no witnesses. Since it was about the end of his shift, he finished his shift and left work at about 1:30 o’clock a. m.
On Saturday, November 21, 1953, appellant contacted Dr. Dob-son, his family physician, of Haysville, Kansas, and arranged for an appointment for the following Monday. Dr. Dobson, after examining Mr. Fitzwater, told him that he had heart trouble, and arranged to have him in the Osteopathic Hospital at Wichita, Kansas, for three days. After leaving the hospital, appellant went to his home and rested for approximately ten days. During this two-week period, while the appellant was absent from work, his wife called the Personnel Department at the Boeing Airplane Company and informed them that her husband was having heart trouble.
On December 7, 1953, the appellant reported back to work. He was required to go to First Aid, as do employees who miss work by reason of sickness. He was sent from the First Aid Department to Dr. Hay, an employee of the company, for examination. Dr. Hay sent the claimant home to get a letter from his doctor explaining the reason for his illness and releasing him to go to work. The appellant went back to Dr. Dobson and obtained the following letter:
“DR. H. FREDERIC DOBSON, Jr.
Physician — D. O. — Surgeon
Haysville Clinic
Haysville, Kansas
December 8, 1953
To Whom it may Concern:
This is to certify that Mr. George Otto Fitzwater, a patient in this office, has been found to be afflicted with coronary insufficiency.
Roentgenological studies indicate mild pulmonary congestion due to myocardial insufficiency. Electrocardiographic studies indicate coronary insufficiency and a possible old myocardial infarction.
The prognosis on this patient is fair, provided that his physical activity is so arranged as to eliminate any considerable effort.
Thanking you, we are Very truly yours,
H. Frederic Dobson, Jr. [signed]”
On December 8, 1953, appellant returned to Dr. Hay with the letter and Dr. Hay then examined him, took a history of his accident and referred him to Dr. Moy, another company doctor, for the purpose of having an electrocardiographic study performed. Just what information the appellant gave to Dr. Hay on the 8th day of December, 1953, is conflicting in the evidence. He did inform Dr. Hay that his heart pain had begun approximately two or three months prior to his serious attack on November 20, 1953. The evidence is not clear as to whether Dr. Hay knew the attack which sent the appellant to the hospital occurred while he was working at the plant. The appellant himself admits on cross-examination that it was not until after he was discharged in April of 1955 that he informed anyone that the attack on November 20, 1953, occurred while he was at work, and it may have been the Union that he then told. The inference from the testimony of Dr. Hay is that the appellant intentionally concealed the facts of the accident in an effort to get back in the employ of the Boeing Airplane Company at light work. The trial court found on this point that the appellees had no notice or knowledge that appellant’s accident occurred on the job.
As a result of the examination given to the appellant by Dr. Hay and Dr. Moy, it was determined that the appellant could no longer do the type of work which he had been doing at the plant. Pursuant thereto, Dr. James T. Moy prepared the following interoffice memorandum which was sent to the Personnel Department:
“BOEING AIRPLANE COMPANY WICHITA DIVISION INTEROFFICE MEMORANDUM
FROM MEDICAL 580 12-11-1953
TO PERSONNEL 580
SUBJECT: FITZWATER, G. O. PEN:28497 DEPT:577
The subject employee has a heart disease, which in this instance is extremely serious. He should not, therefore, be allowed to continue with his present duties in that his physical activity should be strictly limited.
The above condition is progressive and the prognosis is guarded.
James T. Moy, M. D.”
As a result of this memorandum the Personnel Department found appellant a job which consisted of wrapping and stamping parts. The appellant commenced this job on December 12, 1953, and continued doing this form of light work until the first part of April, 1955, when the company let him go. The wages paid to the appellant after the 12th day of December, 1953, were the regular wages for the work he was doing and were the same as other employees doing similar work were receiving. The rate of pay was the same rate which he received prior to the time of his heart attack, his average weekly wage then being $67.40.
Neither of the Boeing doctors was of the opinion that they were treating Mr. Fitzwater for the year and a half period that he remained in Boeing’s employ after December 7, 1953. There is nothing in the record to indicate that the Boeing doctors saw the appellant after December 8, 1953. On December 9, 1953, the Medical Department of Boeing placed appellant on a “G” card restricting his activities. This means that the authority in supervision is not supposed to transfer the employee from that job before consulting with the Medical Department. The appellant himself testified that his own physician, Dr. Dobson, was seeing and treating him throughout this period of time from November 20, 1953, to April, 1955, and he was personally billed by Dr. Dobson for his services. No opinion was advanced by Dr. Dobson or the appellant that Boeing was working with Dr. Dobson in the treatment of the appellant. The trial court found that the respondent and insurance carrier furnished no treatment for the injury sustained by this man arising out of and in the course of his employment.
The Examiner found among other things (1) That the claimant suffered an accident arising out of and in the course of his employment on the 20th day of November, 1953, at Boeing Airplane Company, which, as of the date of his termination of employment, approximately April, 1955, resulted in permanent partial disability of 50%; (2) That neither the claimant’s letter from Dr. Dobson nor the Boeing interoffice memorandum constituted a written claim for compensation; first, because neither document was signed by the claimant, and second, because Dr. Dobson’s letter although written by claimant’s own doctor, was concerned only with the man’s physical condition and can in no possible way be construed to be a claim for compensation or intended to be a claim for compensation on the part of the claimant; (3) That no medical treatment was furnished by the respondent within the meaning of the act at any time after December 8, 1953, at which time claimant returned to work; that allowing the claimant to return to work at light work was not medical treatment within the meaning of the statute, since there was no indication that that type of work was meant to be treatment for his heart condition, but merely the limitations of his physical capacity.
The Examiner found that since no compensation was paid and no medical treatment furnished by the respondent within one hundred twenty days prior to the date claimant’s claim for compensation was filed with the Commissioner, May 18, 1955, it was not filed in the statutory period and claimant’s claim for compensation must be denied. An award of compensation was denied and the findings and the award of the Examiner were approved by the Workmen’s Compensation Commissioner.
Upon appeal to the district court of Sedgwick county, the trial court on the 20th day of June, 1956, announced in its Journal Entry of Judgment:
“. . . the decision and award of the Workmen’s Compensation Commission made and entered on May 28, 1956, should be affirmed and made the decision and award of this court. In addition the court made further comments and findings which are contained in the record of the proceedings, which are by reference made a part hereof.”
The trial court thereupon denied an award of compensation and the claimant appealed.
The questions presented to this court for review are: First, did appellant serve appellees with a written claim within one hundred twenty days after his injury as required by the Kansas Workmen’s Compensation Act? Second, if the letter of Dr. Dobson dated December 8, 1953, and the interoffice memorandum of the Boeing Airplane Company dated December 11, 1953, heretofore set out, do not satisfy the requirements of a written claim, did appellees extend the time within which a written claim must be made by furnishing appellant with medical treatment and the payment of compensation?
Just what findings the trial court made in connection with its decision in this case must be analyzed. The remarks of the trial judge are quite extensive. The maximum credence placed upon appellant’s theory by the court below is typified by these remarks:
. “I think it is immaterial whether we call it treatment or not. I would say he was being given general advice because he had heart trouble. It is going a long way to call it treatment. It is advice. . . .”
At another point the trial judge said:
“. . . If I were making an interpretation as a matter of law I would draw the line and say treatment in the statute means treatment for the injury received on the job and not treatment for a general heart condition which he had before he received cramps on the job; that is what that means. . . .”
At still another point the court made this remark:
“We conclude they weren’t giving him treatment. That is the end of the case.”
In substance, these remarks incorporated in the journal entry by reference had the effect of affirming the decision and award made by the Workmen’s Compensation Commission in toto and on the same findings made by the Commissioner. The same situation arose in the case of Moore v. Dolese Brothers Co., 171 Kan. 575, 236 P. 2d 55, where the court at page 579 in commenting upon an attempted construction by the appellant said:
“. . . We regard this too narrow a construction of the language used and point out that the court in its findings and judgment ‘affirmed and concurred in’ the award of the compensation commissioner.” (Emphasis added.)
We shall now turn to the first question — whether the two documents in question represented written claims filed within the statutory period. It is well established that a written claim for compensation prescribed by G. S. 1949, 44-520a, need not take on any particular form so long as it is in fact a claim. (Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690; Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 Pac. 950; Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588; and Klein v. McCullough, 135 Kan. 593, 11 P. 2d 983.)
Whether an instrument in writing propounded as a written claim in a workmen’s compensation case actually constitutes a claim is governed by the intention of the parties. In other words, the court will look to the parties to determine what was in their minds in preparing and receiving the document. (Richardson v. National Refining Co., 136 Kan. 724, 18 P. 2d 131.) This principle has been followed universally by this court in subsequent decisions. In Baxter v. Chicago, R. I. & P. Rly. Co., 139 Kan. 443, 32 P. 2d 451, a majority of the court held that a signed statement did not constitute a written claim for compensation because there was no intention therein to make claim. In Eckl v. Sinclair Refining Co., supra, the court held that two letters received by the employer constituted claims for compensation because it was clearly shown that the claimant had in mind the collection of compensation in writing the letters. In Smith v. Sonken-Galamba, 149 Kan. 693, 88 P. 2d 1114, this court held that a release signed by the claimant did not constitute a written claim for compensation because the claimant did not have in mind making a claim for compensation when he signed the instrument.
In a preliminary way it is well to reiterate and observe some of the basic rules to which we adhere in workmens compensation cases upon review in this court:
(A.) The jurisdiction of the Supreme Court on appeal taken from the judgment of the district court is specifically limited to the determination of questions of law. (G. S. 1955 Supp., 44-556; and Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106.)
(B.) Whether an instrument propounded as a written claim (Klein v. McCullough, supra; and Bull v. Patti Const. Co., supra) or whether a claim for compensation has been filed in time is primarily a question of fact. (Moore v. Dolese Brothers Co., supra; Kober v. Beech Aircraft Corporation, 177 Kan. 53, 276 P. 2d 335; and Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P. 2d 172.)
(C.) As to questions of fact this court reviews the record only to determine whether it contains substantial evidence to support the trial court’s finding, and in doing so all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears, such finding is conclusive and will not be disturbed on review. (Silvers v. Wakefield, 176 Kan. 259, 260, 270 P. 2d 259; and Barr v. Builders, Inc., supra.)
(D.) Only in the event the evidence is undisputed, is the question one of law for appellate review. (Kober v. Beech Aircraft Corporation, supra.)
The limited situations related in (B) above are indicated only because they have special application to the instant case at bar and are not intended to be exclusive. This concept prevails throughout the workmen’s compensation law. Whether an accident arose out of and in the course of a workman’s employment (Silvers v. Wakefield, supra), the extent of temporary total disability (Bull v. Patti Const. Co., supra), whether the injury was the cause of death (Baxter v. Chicago, R. I. & P. Rly. Co., supra) and many other determinations are all primarily questions of fact.
A reading of the cases leads to confusion as to whether on appellate review an instrument propounded as a claim is primarily considered a question of fact or one of law. The Klein case and the Bull case cited in (B) above confirm the proposition that the determination is primarily a fact question. Many of the opinions in other cases, without making comment on the question, plunge directly into the review treating it as a question of law. Presum ably the evidence in the lower court was undisputed where the review was treated basically as a question of law. (See, Weaver v. Shanklin Walnut Co., supra; Eckl v. Sinclair Refining Co., supra; Sayers v. Colgate-Palmolive-Peet Co., 134. Kan. 872, 8 P. 2d 383; Richardson v. National Refining Co., supra; Baxter v. Chicago, R. I. & P. Rly Co., supra; and Smith v. Sonken-Galamba, supra.)
To determine whether a written instrument propounded as a claim fon compensation is in fact a claim is considered under special rules applicable to workmen’s compensation cases. The intention and meaning is not garnered from the four corners of the written document alone as is the rule where there is an unambiguous written contract or a will.
In determining whether or not a written instrument is in fact a claim the court will examine the writing itself and all the surrounding facts and circumstances, and after considering all these things, place a reasonable interpretation upon them to determine what the parties had in mind. The question is, did the employee have in mind compensation for his injury when the instrument was signed by him or on his behalf, and did he intend by it to ask his employer to pay compensation? (Richardson v. National Refining Co., supra; and Smith v. Sonken-Galamba, supra.)
In the instant case it must be emphasized that no objection was made by the parties concerning the finding that appellant suffered an accident arising out of and in the course of his employment on the 20th day of November, 1953, at the Boeing Airplane Company. A material fact at issue in the trial court was whether the Boeing doctors knew the appellant had a heart attack while he was working on the job and thereby charge the company with knowledge of the accident which arose out of and in the course of appellant’s employment. This was material in construing the legal effect of the written instruments under consideration in accordance with the above rule. In our opinion it may not be said there was no dispute in the evidence in the instant case. (Kober v. Beech Aircraft Corporation, supra.) The trial court found that neither the letter of Dr. Dobson presented to the Boeing doctors by the appellant on December 8, 1953, nor the interoffice memorandum of the Boeing Airplane Company dated December 11, 1953, constituted a written claim for compensation within the meaning of the statute. Our function on this point is limited to a review of the record to determine whether it contains substantial evidence to support the trial court’s finding.
The trial court found that the Boeing doctors did not know that the appellant suffered a heart attack on the job. This finding was. specified in the remarks of the trial judge incorporated in the Journal Entry of Judgment dated June 20, 1956. This finding was supported by substantial evidence when viewed under the applicable rules.
The appellant when he first returned to work after his hospitalization on December 7, 1953, failed to present a release from his doctor thereby permitting him to return to work under the rules of the Boeing Airplane Company. The company doctor sent him home to get a release from his doctor to explain his illness. The letter of Dr. Dobson explained the reason for appellant’s absence from work and advised the Boeing doctors of the limitations of appellant’s physical capacity. Under all the facts and circumstances heretofore disclosed, the finding is justified that this letter was understood and intended as a release signed by the appellant’s family doctor entitling him to return to work under the conditions specified, and that it was not intended or considered by either of the parties as a claim for compensation. Furthermore, on the evidence presented by the record the appellant had no knowledge whatever of the interoffice memorandum from the Medical Department to the Personnel Department in the Boeing Airplane Company, thereby precluding it from being a valid claim. (Flanagan v. Lux, 141 Kan. 88, 40 P. 2d 458.)
We have no difficulty in concluding that the record presents substantial evidence to support the findings of the trial court and it did not err in finding that no written claim had been presented within one hundred twenty days after appellant’s injury, as required by the Workmen’s Compensation Act.
We next turn to the question whether or not the appellees extended the time within which a written claim for compensation must be made by furnishing appellant with medical treatment and the payment of compensation.
On this point the appellant urges that the time for filing the claim was extended by the payment of compensation to the claimant by furnishing him with bench-type work necessitating minimal physical requirement, and continuing to pay him at the same rate of pay he had been receiving for his previous work. In addition to that he claims the statutory time within which to make a written claim was extended by the furnishing of medical treatment. This whole theory is based on the proposition that the trial court found the Boeing Airplane Company was treating the appellant by giving him light work.
We have already noted the finding of the trial court that the assignment of light work to the appellant was not treatment, and that the Boeing Airplane Company had no knowledge that an accident arose out of and in the course of appellant’s employment. These were among the material facts and circumstances projected to ascertain the intention of the parties under the first question discussed.
The proposition of law upon which appellant relies is another familiar rule in workmen’s compensation cases. That is, where an employer furnishes medical aid to an injured employee it constitutes payment of compensation within the meaning of G. S. 1955 Supp., 44-510. (Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168; and the cases therein cited.)
Appellant’s argument fails on this point since the premise upon which it is based is unsound; namely, that the company furnished medical treatment for the appellant within the meaning of the statute. The familiar rules heretofore set out from (A) to (D) are equally applicable here and need not be repeated. This case was presented to the trial court upon controverted facts; therefore, we are limited in the review of this record to determine only whether substantial evidence is disclosed to support the findings of the trial court. An examination of the record discloses ample evidence to support the findings.
Cases relied upon by the appellant, wherein he contends the prescription of light work was held to constitute treatment for injury on the job, merit discussion.
In the case at bar, we must emphasize, by reason of the findings of the trial court based upon substantial evidence, that the employer paid appellant for the actual work he was doing at the regular wage for his new job classification. In other words, even though his wages before and after injury were the same, he earned every cent he was paid. Second, the employer advised light work consistent with appellant’s physical limitations by reason of a general heart condition.
Appellant’s contentions and most of the cases upon which he relies were met and discussed in Moore v. Dolese Brothers Co., supra. There an employee was treated by a company doctor for a back inim-v received on the job. The company knew of the injury and paid for medical attention the sum of $835.15 which included employee’s last call to the doctor on September 15, 1950, when he was advised to engage in light work only. The company had given the employee light work on the doctor’s advice in March, 1950, and it continued to September 15,1950, which was within one hundred twenty days of the time written claim for compensation was filed. A divided court affirmed the findings of the trial court that claim was filed in time. This is by far the strongest case presented by the appellant and we emphasize that the last call to the company doctor for which the company responded in payment for treatment was within the one hundred twenty day requirement. The employer’s doctor prescribed treatment for his patient by prescribing light work in addition to other items. There this court was asked:
“ ‘Does the fact that the doctor prescribed light work as treatment for claimant upon and following his return to work for respondent, for the reason that such light work might make claimant’s condition better, toll the running of the statutory period within which a claimant must make a written claim for compensation?’
“Answering categorically the question propounded, we feel compelled to say that such a prescription, for the purpose stated, would or would not toll the time of making a claim for compensation depending upon the time and circumstances of the giving of the prescription considered in connection with the pertinent sections of our statutes. . . .” (p. 578.)
The reasoning of the court in the Moore case is given as follows:
“Appellant’s specific complaint is, the trial court did not find that on September 15, 1950, the respondent furnished treatment for the claimant, and points out that what the court found was that Doctor Anderson prescribed light work as a treatment for claimant ‘upon and following his return to work,’ which would mean upon March 6, 1950, and subsequently, and that the prescription ‘was in effect up to and including September 15, 1950.’ We regard this too narrow a construction of the language used and point out that the court in its findings and judgment ‘affirmed and concurred in’ the award of the compensation commissioner.
“If the findings and judgment of the trial court should be construed to mean that when the claimant was released for work in March, 1950, among the prescriptions given was that he should perform only light work, and that the claimant had followed that prescription to a time within 120 days prior to his filing a claim for compensation, even though medical services had not been furnished by the employer within such time, our authorities cited by appellee (Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102, and Bishop v. Dolese Brothers Co., 155 Kan. 288, 124 P. 2d 446) would not sustain the judgment of tlie trial court. Neither have we been able to find other authorities that would do so. In the Rupp case, where a doctor had prescribed light work, the employer agreed to give the claimant light work and paid him his regular wages, although it was known to both of them that the wages paid were in excess of what claimant earned. This court held that the excess was in fact a payment of compensation. The syllabus reads:
“ ‘Notice and demand for compensation is timely if given within ninety days [now one hundred and twenty] after employer suspends voluntary and informal payments of compensation.’
“There is no claim that such a situation existed in this case. In the Bishop «case the claimant testified that he visited the doctor and was treated by him about every two weeks from May 7, 1939, to February 22, 1940. The claim for compensation was filed on March 4, 1940. The compensation commissioner apparently believed claimant’s testimony and awarded compensation. This court affirmed.” (pp. 579, 580.)
The appellant places great reliance upon this court’s holding in Johnson v. Skelly Oil Co., supra. That decision bears little similarity to the instant case for there the employer knew of the injury and the company doctor was treating it. The company there induced the employee to accept payments through an insurance plan and sought to avoid liability under the Workmen’s Compensation Act on the ground that no compensation had been paid to the employee within one hundred twenty days prior to filing the written claim.
In no case before this court has a doctor’s prescription of light work as treatment for an employee, upon his return to work for his employer, standing alone been held to toll the running of the statutory period within which a claimant must make a written claim for compensation.
Of further importance is the fact that all our cases, except one, on the question whether a written claim was filed in time under the statute, hold that it is primarily a question of fact, and the only matter before this court for review is whether the record discloses substantial evidence to support the findings of the trial court as a matter of law. Irreconcilable is Rupp v. Jacobs, 149 Kan. 712, 88 P, 2d 1102, where this court reversed the trial court substituting its findings for those of the trial court, two of the justices dissenting. In so far as inconsistent with what is here said and held Rupp v. Jacobs, supra, is disapproved.
This cannot be overemphasized in workmen’s compensation cases. Justice Dawson in Klein v. McCullough, supra, in 1932 speaking of this rule in workmen’s compensation cases aptly said:
“. . . But whether there is such evidence is a question of law which this court’s duty will not permit it to evade, no matter how much we mav regret to have our dockets cluttered with this class of cases — a class which the reformers of two decades ago confidently hoped would be fairly and competently handled by a statutory board and that the courts would eventually be relieved of them altogether.” (p. 595.)
The legislature has made mandatory written claim for compensation. The situation existing before the claim legislation was enacted and the reason for the legislation is best described by Justice Dawson, speaking for the court, in Klein v. McCullough, supra:
“. . . This court is grateful to the legislature for the enactment of section 20 of the present statute, which emancipated the bench and bar and the compensation commission as well, from the mess we were in touching the requirements of notice and demand and how they might be waived where no prejudice was shown — not to speak of our more or less constant distrust that such waivers were largely established by interested and questionable testimony. This court is not disposed to open another such Pandora’s box of trouble by conceding that the plain letter of the statute can be circumvented by oral testimony to show a waiver of its requirement. . . .” (p. 597.)
Having reviewed all of the evidence presented by the record in this case and considered all of the facts and circumstances in the light most favorable to the prevailing party, we conclude there was substantial evidence to support the findings and judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
The question in this case involves the construction of a written instrument designated as “Sale of Oil and Gas Royalty.” More specifically, the basic question is whether production on a part of the 3630 acres covered by the instrument during its primary term perpetuated or extended the grantee’s interest as to 680 acres included therein on which there was no development or production until after the expiration of the primary term.
The trial court answered the question in the negative and plaintiff grantee has appealed.
Material portions of the instrument in question executed by defendants Youngren read:
“Sale of Oil and Gas Royalty.
“Know All Men by These Pbesents:
“That Amos V. Younggren, (sometimes written A. V. Younggren) and Gladys Younggren, Husband and wife, of Stevens County, State of Kansas, for and in consideration of the sum of Ten Thousand Eight Hundred Ninety and no/100 Dollars ($10,890.00) cash in hand paid by Western Royalty and Development Company, a corporation, hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign, and deliver unto said Grantee, an undivided one-fourth interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Stevens County, State of Kansas, to-wit:
(Descriptions omitted.)
containing 3630 acres, more or less, together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom, with the right at any time to remove any or all equipment in connection therewith.
“Said land being now under various oil and gas leases executed in favor of C. F. Mangels (and his Assigns) it is understood and agreed that this sale is made subject to the terms of said leases but covers and includes one-fourth of all the oil royalty, and gas rental or royalty due and to be paid under the terms of said leases.
“It is understood and agreed that one-fourth of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said leases is to be paid to the said Grantee and in the event that one or more of the above described leases for any reason become cancelled or forfeited then and in that event an undivided one-fourth of the lease interests and all future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said Grantee owning one-fourth of all oil, gas and other minerals in and under said lands, together with one-fourth interest in all future events.
“To Have and To Hold the above described property, together with all and singular the rights, appurtenances thereto in anywise belonging unto the said Grantee 'herein, its successors and assigns for a term of 20 years, commencing on the 5th day of July, 1930, and as long thereafter as oil, gas or either of them are being produced from said land or operations are in progress thereon by grantors or grantees or their respective 'heirs, successors or assigns; and we do hereby bind ourselves and our heirs, executors and administrators to warrant and forever defend all and singular the said property unto said Grantee herein its successors, and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, and agree that the Grantee shall 'have the right at any time to redeem for Grantors by payment, any mortgage, taxes or other liens on the above described lands, in the event of default of payment by grantors, and be subrogated to the rights of the holder thereof.
“Witness our hands this 11th day of August, 1930.
“Amos V. Younggren
Gladys Younggren”
Through various conveyances' and transfers, plaintiff Baker, in 1938, became the owner of the undivided one-fourth interest covered by the instrument.
There is no dispute as to the facts, and the case was tried upon the pleadings and stipulation of the parties. The various leases on the lands covered by the instrument at the time of the conveyance were apparently later released, there being no development or production under any of them. New leases were later executed by plaintiff and defendants. Each lease covered only a portion of the lands described in the instrument. Ultimately, various portions of the lands were separated and through unitization agreements were separated and placed in ten different gas-producing units. Only two of the units consisted entirely of lands described in the instrument. Eight of the ten units contained some lands described in the instrument, and other lands in which neither plaintiff nor defendants claim an interest. Royalty from gas production in each unit is attributable only to the lands within the unit, and is payable only to the owners of royalty or mineral interests in the unit. Each unit is autonomous, is completely separate and independent, and gas production from a unit does not extend or perpetuate the leases on any other unit.
Gas was being produced, and plaintiff and defendants were receiving royalty, from seven of the ten units on and prior to the expiration date (July 5, 1950) of the primary term of the instrument, and there is no question about plaintiff’s right to continue to receive royalty from those seven units. The leases on the remaining three units covering 680 acres, they being the ones in controversy, are owned and operated by defendant production company, and since this controversy arose the company has paid into court the disputed gas royalties to be disbursed by order of the court to the party or parties entitled thereto. In other words, insofar as this dispute is concerned, defendant production company is an innocent bystander.
Plaintiff Baker contends that production of gas on seven of the units, or any of them, during and continuing to the end of the primary term of the written instrument, operated to extend or perpetuate his interest as to the 680 acres on which there was no development or production until after the expiration of the primary term, and he claims ownership of one-fourth of the gas royalties from that acreage. Defendants deny plaintiff’s claim and contend that as to the 680 acres plaintiff’s rights were extinguished by the fact that no development or production was had on such lands during the 20-year primary term.
At the time the case was decided the trial court filed a memorandum opinion, and as it clearly sets forth the issues and the reasons for the decision, we quote it in full:
“The controversy in this case is between E. V. Baker, plaintiff, sometimes hereinafter referred to as Grantee, and A. V. Younggren and wife, sometimes hereinafter referred to as Grantor.
“The question involved in this action is based upon the construction of an instrument designated as ‘Sale of Oil and Gas Royalty.’
“This instrument grants, sells, conveys, assigns and delivers unto grantee an undivided Kth interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Stevens County, Kansas, to-wit:
(describes 3,630 acres of land.)
“To Have and to Hold . . . for a term of 20 years, commencing on the 5th day of July, 1930, and as long thereafter as oil, gas or either of them are being produced from said land or operations are in progress thereon by grantors or grantees or their respective heirs, successors or assigns . . .
“2950 acres of this land, on July 5, 1950, were included in eight operating agreements and units and upon eadh unit there was a producing gas well on said date. There is no dispute between the parties as to said 2,950 acres.
“The NEK 3-32-39, containing 160 acres, is subject to an oil and gas lease dated October 30, 1945, executed by the plaintiff Baker and the defendants Younggren as lessors. Said lease was included in a gas producing unit with other lands not involved herein. This producing unit was accomplished by an instrument designated as ‘Declaration of Unitization and Consolidation,’ dated November 20, 1952, and executed and filed by the lessee, under a provision in the respective oil and gas leases granting said lessee such power, and was not executed by either plaintiff Baker nor the defendants Younggren. The producing gas well on this unit was drilled on other lands not involved herein and was producing gas before the oil and gas lease covering the NEK 3-32-29 was executed.
“The NWK 11-32-39, containing 160 acres, is subject to an oil and gas lease, dated October 30, 1945, and was executed by the plaintiff Baker and the defendants Younggren. Another oil and gas lease, dated October 30, 1945, covered the SK-SWK 11-32-39, the NWK-SWK 11-32-39 and the NK NWK 14-32-39, containing 200 acres was also executed by the plaintiff Baker and the defendants Younggren. Said leases were included in a gas producing unit with other lands not involved herein. This producing unit was also accomplished by an instrument designated as ‘Declaration of Unitization and Consolidation,’ dated November 30, 1951. A producing gas well was drilled and finished on said unit on December 22, 1951.
“The NWK 5-32-38, containing 160 acres, is included with other lands not involved herein in a Unit Operating Agreement, dated March 13, 1950, and was executed by the plaintiff Baker and the defendants Younggren. Said agreement specified that the same contained 640 acres. Under date of October 30, 1952, an amended Unit Agreement signed by the plaintiff Baker and the defendants Younggren, including the same leases and lands, amended the original Unit Agreement dated March 13, 1950. This Amended agreement, insofar as is material herein, states:
“ T said gas unitization agreement is hereby modified and amended so that the same as amended shall show the unitized area therein to consist of 643.29 acres, more or less ....
“ ‘3. Except as modified and amended with the foregoing paragraphs, the terms and provisions of said gas unitization agreement shall be and remain in full force and effect and each of the parties hereto ratifies and affirms the same and the provisions therein contained.’
“A producing gas well was drilled in 1953 on the NWK 5-32-38.
“The question herein is based upon the construction of the words ‘To Have and to Hold the above described property . . . for a term of 20 years; . . . and as long thereafter as oil, gas or either of them are being produced from said land,’ and the interpretation placed thereon by the grantor and grantee at the time the instrument was executed. This instrument is unambiguous in its terms when construed as a whole and the intention of the parties must be gleaned from the four corners of the instrument. See Brungardt v. Smith, 178 Kan. 629, and the cases cited therein.
“Other clauses in the instrument help in determining the intention of the parties. The instrument states: ‘Said land being now under various oil and gas leases executed in favor of C. F. Mangels (and his assigns) it is understood and agreed that this sale is made subject to the terms of said leases but covers and includes one-fourth of all the oil royalty, and gas rental or royalty due and to be paid under the terms of said leases.’
“Also the grantee, in brief without quoting the exact wording of said instrument, is given the right of ingress and egress for the purpose of exploring and drilling said lands and removing therefrom the oil, gas and other minerals. If the Mangels leases are forfeited or cancelled, the grantee in the mineral conveyances on his undivided X mineral interest has the sole right to lease the same and participates in all bonuses for new leases, all rentals therefrom as well as all royalties paid by virtue of future leases. In other words, the grantee has all the incidents of ownership in said undivided % interest in said oil, gas and other minerals until July 5, 1950. During said 20 years the grantee and the grantor have the same incidents of ownership in their undivided and respective interests in said minerals.
“At the end of 20 years, or as in this case after July 5, 1950, the incidents of ownership of the grantee must be determined. If the intention of the parties was to continue the mineral estate of the grantee beyond the 20 years or primary term upon the production of gas from any well or wells located any place upon the 3,630 acres (regardless of whether the unit agreement and oil and gas leases, under which production is procured, define a certain number of acres as producing acreage) then all the incidents of ownership are extended beyond the 20 years primary term the same is extended as to all of said 3,630 acres as long as oil, gas or other minerals are produced from any part of said land. This in turn would extend to the grantee all rights to execute new oil and gas leases, unitization agreements and all other rights in connection therewith as long as there was any production from any part of said 3,630 acres.
“The grantee purchased and paid for a limited conveyance which was limited to 20 years and was to be extended only upon the fulfillment of the contingency which was the production of oil, gas or other minerals before the expiration of said 20 years.
“The instrument under construction states: ‘said land being now under various oil and gas leases executed in favor of C. F. Mangels.’ Although the instrument does not specifically state that all of said land is under various oil and gas leases to C. F. Mangels and does not state how many leases are on said land, nor how many acres each lease covers, it is definite that there is more than one lease on the 3,630 acres, and probably there were several leases thereon, and perhaps all of said land was covered by several oil and gas leases to C. F. Mangels.
“The situation on August 11, 1930, the date of said instrument, was that the drilling of a producing gas well on each of the leases would under the terms of that lease extend the terms thereof beyond the primary term of such lease on the land described in said lease and on those lands only. Therefore the minerals owned by the grantor or grantee would be cured (using oil field terminology as to the word ‘cured’) only as to the lands included in each lease upon which a producing gas well was drilled and produced.
“As a standard practice substantially the same words are used in creating the contingency extending the terms of oil and gas leases and term mineral conveyances beyond their primary terms, e. g. ‘as long thereafter as oil or gas or either of them is produced from said land.’ The same is true in this case.
“If a producing gas well only cures the minerals owned by the grantor that were included in the lease upon which a producing gas well is located, can it be said that it was the intention of the parties to the mineral conveyance that an undivided interest in the same minerals owned by the grantee would be cured on different or more lands? As to the leasehold estate the answer is No. Is the answer the same as to the mineral estate?
“Applied to the facts herein the grantor and the grantee each owned an undivided interest in all of the 3,630 acres. Each oil and gas lease on any part of said 3,630 acres covered the minerals and mineral rights of both the grantor and the grantee but only on the lands described in each particular lease. Can it therefore be said that the parties contemplated that a producing gas well would cure more minerals for the grantee than it would cure for the grantor under a conveyance that mentioned oil and gas leases to C. F. Mangels, which conveyance stated ‘It is understood and agreed that this sale is made subject to the terms of said leases but covers and includes % of all the oil royalty, and gas rental or royalty due and to be paid under the terms of said leases’?
“The grantee also acquired the right to execute future oil and gas leases on his undivided mineral rights in the event the C. F. Mangels leases are forfeited or cancelled. He had the right, which he exercised, to determine what part of the lands under which he owned minerals, would be leased, the term of such leases and the lands to be included in each lease. He also acquired the right the grantor had to drill said lands himself in the event one or all of the Mangels leases were forfeited or cancelled.
“In order to arrive at the interpretation placed upon said mineral conveyance by the plaintiff Baker, it would be necessary to construe the words ‘said land’ as used in the habendum clause as meaning any part of said land. In view of the other clauses in said instrument discussed above I do not believe that such a narrow construction was the intention of the parties.
“What part of said land was, on July 5, 1950, actually producing gas? This matter cannot be determined with any accuracy by any present methods used by the oil and gas industry. Therefore, the Courts must look for the intention of the parties as expressed in mineral conveyances, oil and gas leases, unit agreements or other contracts between the parties involved or to the findings and orders of the Kansas Corporation Commission. In this case the terms of the mineral conveyance give the answer.
“An additional point is presented as to the NWK 5-32-38, by paragraph No. 3 of the Amended Unit Operating Agreement, dated October 30, 1952, which agreement was executed by the plaintiff Baker and the defendants Younggren more than two years after the expiration of the primary term of the mineral conveyance. Said paragraph No. 3 ratifies and affirms the original Unit Operating Agreement dated March 13, 1950.
“The purpose of said Amended Unit Operating Agreement was to change the acreage covered by said original agreement to cover 643.29 acres instead of 640 acres as covered by the original agreement, and was between the plaintiff Baker, the defendants Younggren and others, as lessors, to Hugoton Production Company, a corporation, as lessee. Such purpose is clearly expressed by the terms of said amended agreement.
“The ratification and affirmation was between the lessors and the lessees and ratified the terms of the oil and gas lease covering the lands therein contained and was for the benefit of the lessee. The effect thereof was to confirm the fact that as of the date thereof the lessee had performed all the conditions and obligations created by the oil and gas leases and Unit Operating Agreements covering the land covered thereby. It was not meant as an instrument adjusting or settling differences as to property rights between the lessors.
“If the Court is correct in its holding that the mineral interest of the plaintiff Baker terminated by the terms of the original grant on July 5, 1950, then there was nothing left upon which a ratification or affirmation could attach. In other words a new estate would have to be created in said land which created new conditions or obligations before ratification or affirmation could operate. The effect would be to ratify and confirm nothing.
“Judgment for the defendant, in accordance herewith, will be entered at a date convenient to all parties concerned.”
In harmony with the court’s memorandum, judgment was entered quieting title to the mineral interest in question on the 680 acres in defendants Youngren as against plaintiff Baker, and directing the clerk of the court to pay accrued royalties which had been paid into that office by defendant production company, to defendants Youngren.
Plaintiff’s motion for a new trial being overruled, he has appealed.
Despite the' various arguments and contentions made, the entire matter narrows down to the question of what is a practical interpretation and construction of the written instrument involved. It is conceded by the parties that the identical or a similar question has never been before this court. Cases somewhat analogous from other jurisdictions are cited, but, at best, they are merely persuasive. In its memorandum decision the trial court held the instrument to be unambiguous and, following the general rule mentioned in Brungardt v. Smith, 178 Kan. 629 [Syl. 4], 290 P. 2d 1039, stated that the intention of the parties must be gleaned from the four comers of the instrument when construed as a whole. We are in accord with that statement and approach to the question.
As was observed by the trial court, Baker, the grantee, acquired the right to execute new leases covering his interest if those existing at the time of the conveyance were forfeited or cancelled. He had the right, which he exercised, to determine what part of the lands under which he owned minerals would be leased, the terms of such leases and the lands to be included in each lease. As contended for by defendants, we think the fact the lands described in the conveyance were subject to various leases and that production might have been obtained under any one or all of them during their primary terms and during the primary term of plaintiff’s interest, is important in determining the intention of the parties. The lands in question were subsequently divided into new units by other leases and agreements. Timely production under any one of those leases would have perpetuated that lease and plaintiff’s interest in the lands covered by such lease. Had the parties intended, as contended for by plaintiff in this action, it would have been a simple matter to have expressed such intention by including in the instrument a recital to the effect that production on any portion of the lands described would perpetuate and extend plaintiff’s interest on all of the lands, even though royalty from a specific producing lease was attributable only to the lands covered by such lease. They did not do so. We agree with the trial court that each oil and gas lease on any part of the entire tract covered the minerals and mineral rights of both parties, but only on the lands described in each particular lease.
A point is made of the fact that on October 30, 1952, the parties executed an agreement which modified a previously executed gas unitization agreement. This matter was adequately and properly covered in the trial court’s memorandum and, as indicated, was for the purpose of correcting the acreage description and was executed for the benefit of lessee defendant production company, and is not to be construed as a recognition of rights claimed by plaintiff in this action.
Considerably more on the subject could be said but it would be largely repetitious of what is contained in the trial court’s memorandum. Various contentions made by plaintiff have not been overlooked or ignored, but, in view of our conclusion, require no discussion. We think the trial court correctly analyzed the questions presented and arrived at a correct conclusion.
The judgment is therefore affirmed.
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