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The opinion of the court was delivered by
Hall, J.:
This is an appeal from an order and judgment of the district court of Leavenworth County denying petitioner s application for a writ of habeas corpus.
Petitioner was originally charged in Russell County, Kansas, with the crime of forgery in the second degree. He was represented by court appointed counsel and pled guilty to the charge. He was subsequently sentenced to the Kansas State Penitentiary for a period of not more than 10 years for the crime of forgery in the second degree as defined by G. S. 1949, 21-608. Petitioner was sentenced on October 6, 1952, and served a year of time in the state penitentiary. On the 6th day of October, 1953, he was granted a parole by the Board of Penal Institutions. On April 21, 1954, he became a parole delinquent by reason of leaving his place of residence and employment without permission, whereupon the Warden of the penitentiary issued an order for his arrest.
Petitioner left the State of Kansas, went to Colorado, and later to Wyoming where he was convicted and sentenced to the United States Penitentiary at Leavenworth, Kansas, for violation of a federal statute. Upon his release from the United States Penitentiary at Leavenworth, petitioner was arrested by appellee, the Sheriff of Leavenworth County, Kansas, by authority of the Kansas State Penitentiary parole violation warrant and has been and is now in the custody of the appellee.
Petitioner made application for a writ of habeas corpus in the district court of Leavenworth County which was denied on the 17th day of September, 1956. Hence this appeal.
Petitioner contends that the failure of the State of Kansas to extradite or return petitioner from the asylum states of Colorado and Wyoming constituted a waiver of jurisdiction over him as a parole violator and also that his rights under article IV, section 2 of the United States Constitution have been violated.
Petitioner s principal complaint is that the State of Kansas knew his whereabouts at all times and did nothing to enforce its warrant for parole violation until after petitioner was apprehended for the federal offense and that such failure by the State of Kansas waived and relinquished any and all rights it had to the petitioner. For the same reason he contends the State of Kansas violated article IV, section 2 of the United States Constitution because he was a “fugitive from justice” and the state did not extradite him.
In substantiation of these claims, petitioner includes in his brief a series of letters addressed to him from the record clerk of the Kansas Penitentiary and the pardon attorney dated in October and November of 1954, some six months after the revocation of his parole.
There is a line of cases which hold that a state which honors the requisition of another state for a prisoner in its custody for an offense waives its jurisdiction over him and thereby also waives its subsequent right to punish him for past delinquencies or to extradite him for that purpose. However, this is not the rule of the great weight of authority. The theory is that such surrender operates as a waiver of the jurisdiction of the state over the person of the prisoner and that he cannot thereafter be considered a fugitive from justice from the surrendering state. (35 C. J. S. Extradition § 21b; In re Whittington, 34 Cal. App. 344, 167 Pac. 404; The People v. Bartley, 383 Ill. 437, 50 N. E. 2d 517, 147 A. L. R. 935; In re Colin, 337 Mich. 491, 60 N. W. 2d 431.)
Petitioner cites and relies on one authority, In re Hess, 5 Kan. App. 763, 48 Pac. 596. This case is sometimes cited in support of the above minority rule on waiver. See In re Whittington, supra, where the court said:
. . Not only may it be said that he is not a fugitive because he did not voluntarily leave that state, but because also the state of Texas voluntarily relinquished the jurisdiction of its courts over his person and waived its right to thereafter have him brought back from the California jurisdiction to answer for the same offense. In an argumentative way the case of In re Hess (Hess v. Grimes), 5 Kan. App. 763, (48 Pac. 596), is authority for the conclusion last announced.” (p. 347.)
The Hess case involved two defendants who were surrendered to the Kansas authorities by the State of Oklahoma. They were charged for having committed an offense against both the Oklahoma Territory and the State of Kansas. The Governor of Oklahoma turned the defendants over to Kansas. At the time of appeal the defendants were in the legal custody of Kansas but contended that Oklahoma had jurisdiction over them. The court held that Oklahoma had waived its jurisdiction.
The facts of the Hess case are clearly distinguishable from the case at bar and it has no factual application to petitioner’s contention on this appeal.
As a matter of law, the Hess case has never been persuasive with this court. Although it was cited in the leading case of In re Whittington, supra, this court said in In re Martin, 142 Kan. 907, 52 P. 2d 1196:
“. . . The Kansas case cited in that opinion (the Hess case) has little, if any, application to the case before us.
“The Whittington case, although frequently cited, has rarely, if ever, been followed, (p. 910.)
“We are not disposed to follow the reasoning and holding of In re Whittington, supra. It is against the great weight of authority. . . .” (p. 912.)
The court cited People v. Mallon, 218 N. Y. S. 432, as illustrative of the weight of authority.
“The only case cited which holds differently from these cited hereinbefore is In re Whittington, 34 Cal. App. 344, 167 P. 404, which held the question of whether the accused had left the demanding state of his own volition, or under compulsion of legal process, could be inquired into. This holding is opposed to the uniform current of the decisions of the United States Supreme Court, which hold that there can be no inquiry into the motives which caused an alleged fugitive to depart from one state and take refuge in another; there is no discretion allowed, no inquiry into motives. Drew v. Thaw, 235 U. S. 432, 35 S. Ct. 137, 59 L. Ed. 302.” (p. 441.)
The Kansas cases follow the weight of authority. The rule is stated in 35 C. J. S. Extradition § 10b(2).
“An indicted or convicted prisoner who escapes may be extradited as a fugitive from justice; and the same is true as to a paroled prisoner who violates his parole or whose parole has been revoked. This rule applies notwithstanding the paroled prisoner’s entry into the asylum state, prior to the violation or revocation of his parole, was with the consent or knowledge of the authorities of the demanding state, and irrespective of whether his departure from the demanding state or his entry into the asylum state was voluntary or involuntary.”
See, also, 42 A. L. R. 585; 78 A. L. R. 420; 93 A. L. R. 931; and 147 A. L. R. 941.
For Kansas cases see In re Martin, supra; and Ohrazada v. Turner, 164 Kan. 581, Syl. 1 & 2, 190 P. 2d 413, where the court said;
“When a prisoner has not fully served a state sentence and is merely at liberty on parole he is constructively a prisoner of that state and in the legal custody of the duly authorized officials.
“If the prisoner departs from a state while on parole from its p.enal institution and that state seeks his return from another state for a violation of his parole, the cause of his leaving or the manner in which he left are immaterial if he did not leave under circumstances which deprive the demanding state of further right to custody.”
And in Thompson v. Nye, 174 Kan. 750, Syl. 2, 257 P. 2d 937:
“Although there are authorities to the contrary, the general rule is where one commits an offense in the demanding state and thereafter goes or is taken into another or asylum state, his motives in leaving or the reasons why he has left the demanding state are immaterial. (Following In re Martin, 142 Kan. 907, 52 P. 2d 1196.)”
And in Holden v. Hudspeth, 168 Kan. 194, 211 P. 2d 64; and Young v. Edmondson, 177 Kan. 582, 280 P. 2d 571.
The above authorities have been cited in answer to petitioner’s contention that the State of Kansas waived or relinquished its right to extradite him because of its alleged failure to enforce its warrant for parole violation whereby his constitutional rights were violated.
Under the facts of this case, we really need not be concerned with the problems of extradition under article IV, section 2 of the United States Constitution. The petitioner was returned to Kansas by federal authorities and incarcerated in the federal penitentiary at Leavenworth, Kansas. Upon release from that prison he was immediately arrested by Kansas, the demanding state, not through extradition but through the rule of comity between the states and the federal authorities. 35 C. J. S. Extradition §2:
“No question of extradition is involved where a prisoner in the custody of the United States government is turned over to a state for prosecution.”
And in 25 Am. Jur., Habeas Corpus, § 71:
“. . . But the question whether he was a fugitive from justice may not be raised by the accused after he has been delivered into tire jurisdiction of the demanding state and is held by valid process therein.”
And in Pettibone v. Nichols, 203 U. S. 192, 51 L. ed. 148, 27 S. Ct. 111, 51 A. L. R. 803, it was held that while a person being extradited has a right to have the question of the validity of his extradition (as to whether he was a fugitive from justice or not) determined by a court, state or Federal, and, if found invalid, to be discharged from custody, he cannot secure his discharge upon this ground after he has been' returned to the demanding state.
Under the practice of comity a prisoner on parole from a state prison who is subsequently placed on parole from a federal penitentiary is constructively a prisoner of the state, subject only to such rights as the federal authorities may assert in conforming with the rule of comity existing between the federal and state sovereignties. Where a person has violated the laws of two different sovereignties, it is up to the interested sovereignties and not the criminal, to settle which is to inflict the punishment, and by the same token, where a prisoner is on parole from two sovereignties, it is for the latter, and not the prisoner, to determine priority of jurisdiction over him in connection with paroles. The question of priority of jurisdiction is one of comity between the respective sovereignties and not one of personal right of the prisoner. (United States v. Marrin, 227 Fed. 314; United States v. Farrell, 87 F. 2d 957; In Re Silverstein, 52 C. A. (2d) 725, 126 P. 2d 962; and Rosenthal v. Hunter, 164 F. 2d 949.)
The Kansas cases on this point are in line with the federal cases. A leading case is Perry v. Gwartney, 162 Kan. 607, 178 P. 2d 185, where the court held that as between the state and Federal governments the question of which should have the custody of the defendant was one of comity between the two governments and not a personal right of the prisoner and could not be raised by him. The court quoted the following from Wall v. Hudspeth, 108 F. 2d 865:
“ ‘When the court of one sovereign takes a person into its custody on a criminal charge he remains in the jurisdiction of that sovereign until it has been exhausted, to the exclusion of the courts of the other sovereign. That rule rests upon principles of comity, and it exists between federal and state courts. Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879; Grant v. Guernsey, 10 Cir., 63 F. 2d 163, certiorari denied 289 U. S. 744, 53 S. Ct. 688, 77 L. Ed. 1491. But either the federal or a state government may voluntarily surrender its prisoner to the other without the consent of the prisoner, and in such circumstances the question of jurisdiction and custody is purely one of comity between the two sovereigns, not a personal right of the prisoner which he can assert in a proceeding of this kind. Ponzi v. Fessenden, supra; In re Andrews, D. C., 236 F. 300.’ ”
See, also, In re Martin, supra; Hostetler v. Hudspeth, 163 Kan. 647, 184 P. 2d 994; Ohrazada v. Turner, supra; Powell v. Turner, 167 Kan. 524, 207 P. 2d 492; Holden v. Hudspeth, supra; Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987; Hanson v. Nye, 176 Kan. 373, 270 P. 2d 790.
In a recent case, Young v. Edmondson, 177 Kan. 582, 280 P. 2d 571, which factually is very similar to the case at bar, this court said:
“. . . It is a well-established rule of law that the right of priority to an accused is a matter of concern to the courts involved, it being for them, not the accused, to decide which shall try or inflict punishment upon him first. The right of priority may be waived or surrendered. Thus, one accused of an offense against both Federal and State laws or against the laws of two separate States may be subjected to trial in the courts of one of these sovereignties when the one which first had custody of his person turns him over for such purpose, accused having no right to complain of the jurisdiction thereby conferred. . . .” (p. 584.)
In habeas corpus proceedings, the burden is upon petitioner to prove the grounds on which he relies for his release. The court said in Engling v. Edmondson, 175 Kan. 883, 267 P. 2d 487:
“The burden is upon petitioner to prove the grounds upon which he relies for his release. . . . The unsupported statements of a petitioner in a habeas corpus proceeding do not meet the requirements of proof. Records of courts are not set aside upon the unsupported statements of a defeated litigant. And neither is a proceeding in habeas corpus a substitute for appeal. . . .” (p. 885.)
The district court of Leavenworth County found that petitioner had failed to meet this burden. After a very careful examination of petitioner’s contentions on this appeal we must agree with the district court. The record presents no grounds for his release.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This action was commenced in the district court of Lyon County against the Kansas Turnpike Authority to recover damages claimed to have been sustained by the plaintiff to his personal property as the result of construction activities on the Kansas Turnpike. The cause is here on an appeal by the Authority from an order of the district court overruling a demurrer to the petition and from other orders overruling prior motions.
It is neither necessary nor required that we detail allegations of the petition. Highly summarized, and given the benefit of all reasonable inferences to which it is entitled in the absence of any motions to make it more definite and certain, that pleading states that on all dates in question plaintiff was the owner of a building and foundation on which it was situated; that the Authority con demned the land on which such property was located; that as a result of the condemnation and appropriation of the land plaintiff was forced to raise and remove his building in order to protect the same from destruction; and that by reason thereof he sustained damages and is entitled to recover a sum equal to the costs of the removal and relocation of such building.
Following commencement of the action the Authority filed a motion in district court which, without asking for any relief whatsoever, merely recited that it appeared specially for the purpose of stating to the court that such court was without jurisdiction, the only proper jurisdiction being the County of Shawnee. When this motion was overruled the Authority filed a motion to strike the entire petition from the files on the ground plaintiff’s cause of action was res judicata. Following this action the Authority moved to strike all allegations relating to damages claimed for the moving of the building and construction of a new foundation as vague, indefinite and uncertain and for the reason they did not state a proper measure of damages recoverable by law. This motion was also overruled. Thereupon the Authority demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action. When this demurrer was overruled it perfected the instant appeal, specifying in its notice of appeal that it was appealing from each of the foregoing rulings and orders.
At the outset it should be noted that in both his brief and on oral argument appellee contends that none of the trial court’s rulings on the three motions heretofore mentioned is an appealable order under our decisions, hence such rulings must wait final determination of the cause before they can be subjected to appellate review. This contention cannot be sustained. Under the provisions of G. S. 1955, Supp., 60-3314a, and decisions (e. g., Bortzjield v. Sutton, 180 Kan. 46, 299 P. 2d 584; Smith v. Wright, 180 Kan. 584, 305 P. 2d 810) construing its force and effect, where a defendant appeals from an order overruling a demurrer to the petition he may have a review of all prior adverse rulings of which he complains when — as here— he includes such rulings in his notice of appeal.
Having reached the conclusion all rulings complained of are subject to appellate review we are next faced with appellee’s contention that all of the motions giving rise thereto must be classified as attacks in the nature of demurrers against the sufficiency of the petition, hence the propriety of such rulings must be determined from facts appearing on the face of the petition in like manner and under the same rules as the propriety of the order overruling the demurrer to that pleading must be determined. Limited to the record presented we have concluded appellee’s position on this point has merit and must be upheld. We therefore proceed on that premise in disposing of claims made by appellant as grounds for reversal of the involved rulings in the order in which they appear in his specifications of error.
First it is urged that the trial court erred in finding it had jurisdiction of the action. Heretofore we indicated that in view of its form and the record presented we are convinced the most that can be said for appellant’s so-called special appearance is that it constituted a demurrer to the petition on jurisdictional grounds as authorized by G. S. 1949, 60-705, First. So construed the trial court did not err in its ruling. See Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, which holds:
“ ‘A defendant may demur to a petition only where some one of the defects enumerated in G. S. 1935, 60-705, appears on the face of the petition, and where such a defect does not so appear the objection to the petition may be taken by answer. (G. S. 1935, 60-707.)’ ” (Syl. f 2.)
Next it is contended appellant’s motion to strike the entire petition from the files, based on the ground appellee’s cause of action was res judicata, was erroneously overruled. In support of its position on this point appellant asserts the existence of a prior replevin action between the same parties, to which no reference is made in the petition, and insists that action is res judicata of the present lawsuit. The short and simple answer to all contentions advanced in support of the claim is that, under all our decisions, res judicata is an affirmative defense which must not only be pleaded but proved by the parties asserting it; and such a defense may be raised by demurrer only where the fact and nature of the prior adjudication appear on the face of the pleadings. See, e. g., Polzin v. National Cooperative Refinery Ass’n, 175 Kan. 531, 266 P. 2d 293; Moore v. Petroleum Building, Inc., 164 Kan. 102, 107, 187 P. 2d 371; Kirwin v. McIntosh, 151 Kan. 289, 291, 98 P. 2d 160. For other decisions supporting the same conclusion see Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, and Lorey v. Cox, 176 Kan. 621, 272 P. 2d 1114.
Next it is argued the motion to strike certain allegations of the petition relating to damages, the grounds of which have been previously stated, should have been sustained. We do not agree. In the first place our decisions hold that a petition which otherwise states a cause of action is not subject to a demurrer for the reason it seeks to recover more or different relief than that to which the plaintiff may be entitled. (Cooley v. Shepherd, 170 Kan. 232, 225 P. 2d 75; Billups v. American Surety Co., 170 Kan. 666, 672, 228 P. 2d 731.) In the second (Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469, and Smith v. Wright, 180 Kan. 584, 305 P. 2d 810) motions to strike rest so much in the sound discretion of the trial court that rulings with respect thereto will not be reversed unless it appears they have prejudiced or will prejudice the substantial rights of a party. The record in this case discloses no such showing.
Lastly appellant insists the petition fails to state a cause of action, hence it was error to overrule the demurrer based on that premise. We are not disposed to either labor or detail the arguments advanced in support of this claim. It suffices to say that when its allegations are liberally construed and given the benefit of all inferences the petition states a cause of action against the appellant under the special statutory right of action created by the legislature under the provisions of G. S. 1955 Supp., 68-2015, as interpreted by our decisions. (See Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P. 2d 849. See, also, Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172, Syl. ¶ 4, and corresponding portions of the opinion, pp. 753 to 756, incl.)
Finally it should be stated that in reaching the conclusions just announced we have disregarded, not overlooked, contentions advanced by appellant touching the merits of the cause and respecting the existence of other facts and circumstances which, not withstanding they do not appear on the face of the petition, it seeks to have considered and reviewed in connection with the rulings and orders from which it appeals. We are not disposed to here detail or labor matters of that nature. It suffices to say we are not presently concerned with such matters since they cannot be either considered or disposed of until such time as the parties see fit to join issues respecting them under pleadings warranting their review and disposition.
Finding nothing in the record or in contentions advanced by appellant requiring reversal of the involved rulings and orders they must be and are hereby affirmed.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This was an action for rescission of an option agreement to purchase real estate and a deed given pursuant thereto, and to obtain a return of the purchase price and interest paid, together with taxes paid by plaintiffs during the years 1946 to 1949, both inclusive.
Numerous pleadings were filed by the parties, and the trial court ultimately sustained defendant’s motion for judgment on the pleadings and opening statement. Plaintiffs have appealed.
The original petition was filed on September 26, 1951, and, in substance, it alleges that on or about June 18,1946, plaintiffs entered into an option contract with defendant by the terms of which defendant agreed to sell, and plaintiffs agreed to purchase, certain described property in Kansas City for the sum of $850. This contract provided for a down payment of $150 and payments of $15 per month until the entire amount was paid, together with interest and taxes, at which time defendant was to execute a special war ranty deed to the property. Plaintiffs complied fully with the terms of the contract, and on April 25, 1950, defendant executed and delivered a deed to them.
It is further alleged that plaintiffs purchased the property for the purpose of constructing a building upon the southern end thereof, which fact was well known by defendant, and in order to construct the kind and character of building which plaintiffs desired to construct it was necessary that the property should contain at least 145 feet at the southern end thereof. The petition further alleges that the property is only 138.2 feet in width at the southern end, which is insufficient to enable plaintiffs to construct the kind and character of building desired; that such fact was known, or should have been known, by defendant, and that as a result thereof the property is of no value to plaintiffs. The prayer seeks recovery of the purchase price, together with interest and taxes paid by plaintiffs, and tenders back the deed to defendant.
On October 29, 1951, defendant demurred to the petition on the ground it did not state facts sufficient to constitute a cause of action. This demurrer was sustained on April 16,1953.
On May 26, 1953, plaintiffs filed an amended petition containing substantially the same allegations as the petition, and in addition alleged that prior to and at the time they signed the option contract they informed defendant of the purpose for which they were purchasing the property; that defendant represented to them that the southern end of the property was 147 feet in width; that they relied upon such representations and did not discover its true width until on or about April 27, 1950, which was two days after they received the deed from defendant. The prayer was for rescission of the contract and deed, and that plaintiffs recover the purchase price, together with interest and taxes paid.
On July 27, 1953, defendant filed a motion to strike the amended petition. The grounds of such motion are not set out. On October 9, 1953, this motion to strike was sustained and plaintiffs were allowed twenty days in which to file a second amended petition. On December 14, 1954, some fourteen months later, plaintiffs filed a second amended petition containing substantially the same allegations as those of tire amended petition and in addition charged defendant with fraudulent misrepresentations. The prayer sought recovery of actual and punitive damages.
On October 14, 1955, defendant filed a motion to strike the sec ond amended petition from the files and for judgment “to prevent further harassment by the plaintiffs.” This motion was overruled, whereupon defendant filed a demurrer. This demurrer was sustained, and on December 5,1955, plaintiffs filed their third amended petition which contained allegations similar to those of the original petition and, in addition, alleged that defendant was at all times mentioned therein a resident of Jackson County, Missouri; that plaintiffs did not discover the discrepancy in the width of the property until on or about April 27, 1951, and that plaintiffs had received no benefit from the property and had not occupied the same. Further on, it is alleged that plaintiffs did not discover the untruth of defendant’s statements until they had fully paid for the property and had paid the taxes thereon, “which was about June, 1950.” It further alleges a tender of the deed to defendant and demand on him for the return of the purchase price, interest and taxes paid by plaintiffs.
Defendant’s motion to strike the third amended petition and. a demurrer to that pleading were overruled, whereupon defendant filed an answer, which, after denying generally, alleged that plaintiffs entered into possession of the property on or about June 18, 1946; that at all times subsequent thereto they had full knowledge of the area described, and that plaintiffs’ purported cause of action was barred by the applicable statute of limitations, and that defendant had been amenable to service of process in Wyandotte County at all times subsequent to June 18,1946.
Plaintiffs filed a reply in which they denied affirmative allegations of the answer.
Most, if not all, of the proceedings heretofore referred to were had in division No. 4 of the district court, and on September 17, 1956, the case came on for trial in division No. 1.
Following the opening statement by plaintiffs’ counsel, which was a general recital of the matters alleged in the various petitions filed, apparently defendant moved for judgment on the pleadings and opening statement, although the motion is not set out. Following discussion and argument the trial court ruled as follows:
“I am convinced that if there ever was a cause of action in this case it existed for the first two years after this transaction started — after the contract was made. When that time was up and the plaintiffs had a cause of action for fraud at that time hut neglected to bring it, I think that ended his case right there. And the statute has probably run two or three times since. So I think he has waited too long. . . . Judgment for the defendant.”
Plaintiffs have appealed and allege error in sustaining the demurrer to the original petition, in striking the amended petition, and in sustaining the motion for judgment on the pleadings and opening statement.
Due to the nature of the case and the somewhat confused state of the record presented, it is difficult to separate the various contentions made with respect to each of the rulings complained of as applied to the specific pleadings to which the various demurrers and motions were directed, but from the over-all record, and considering the trial court’s ruling and the briefs of counsel, it is readily apparent that the real question in this case is whether plaintiffs’ action was brought in time.
The thread of their argument appears to be that the original petition states a cause of action — that is, it was not barred by any statute of limitations, but if it was in any way defective the defect was cured by the allegations of their amended and third amended petitions under the rule of Smith v. LaForge, 170 Kan. 677, 228 P. 2d 509, to the effect that where a petition alleges a cause of action but does so imperfectly and with insufficient detail, and the additional allegations of an amended petition are only an enlargement and amplification of the averments of the original by setting out more definitely that which was previously imperfectly pleaded, and do not set up a new cause of action, the fact that the statute of limitations has run when the amended petition is filed is not a bar to recovery, for in such a case the amended petition relates back to the date of filing of the original one.
There is no question but that this action is one for rescission of the option contract and deed on account of the alleged fraud and misrepresentations on the part of defendant. The contract was entered into on June 18, 1946. By April 25, 1950, plaintiffs had fully performed by making the required payments, whereupon defendant executed and delivered to them the “special warranty deed,” which, it is conceded, was nothing more than a quitclaim deed. The action was not commenced until September 26, 1951, and, as stated, defendant’s demurrer to the petition was sustained. It was not until May 26, 1953, that the amended petition was filed, in which it was further alleged that plaintiffs did not discover the discrepancy in the width of the tract until on or about April 27, 1950. This amended petition was stricken. Then, after a lapse of fourteen months, plaintiffs filed their second amended petition sounding in tort for actual and punitive damages by reason of the purported fraud. A demurrer to this pleading was sustained, whereupon the third amended petition was filed.
It is claimed by defendant that plaintiffs were in possession of the property continuously from on or about June 18, 1946, the date of the option contract. Plaintiffs do not deny the fact and merely state that they “had no benefit from the land and have not occupied the same.” The fact plaintiffs paid the taxes on the property from the year 1946 on lends credence to the contention they were in possession during the period in question. Being in possession of the property, plaintiffs of course had the means and opportunity of knowing its dimensions and area.
In support of their position they also cite McWilliams v. Barnes, 172 Kan. 701, 242 P. 2d 1063, where it was held that a party defrauded in the making of a contract who discovers the fraud after having partly performed may continue with performance and also have his action for damages. We have no fault to find with that rule, but it simply is inapplicable to the question presented for the reason that here the petition, amended petition and third amended petition, were predicated, not on the theory of recovery of damages, but for rescission.
In our opinion the trial court correctly entered judgment for defendant.
In Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429, it was held that where a party desires to rescind a contract on the ground of fraud and misrepresentations he must, upon discovery of the facts, at once, or within a reasonable time, announce his purpose and adhere to it; that rescission is an equitable remedy; that where one with knowledge of facts entitling him to rescission of a contract, afterwards, without duress, ratifies it, he is not entitled to have it cancelled.
In Turner v. Jarboe, 151 Kan. 587, 100 P. 2d 675, it was said that it is a familiar rule of law that a person who has been duped into the making of a contract must act promptly and effectively in order to take advantage of his right to rescind; that once he has been apprised of sufficient facts to put him on inquiry as to whether he was a victim of misrepresentation or fraud which induced him to make the contract, he cannot let the matter drift, nor can he hesitate for long between two courses of action — one for rescission and another for damages; that the equitable remedy of rescission is open only to the diligent; that the time within which an action for rescission may be commenced is governed by the matter of a plaintiff’s diligence rather than by some provision of the statute of limitations, and that it must be commenced promptly or it will be demurrable.
In Morse v. Kogle, 162 Kan. 558, 178 P. 2d 275, it was held that one who seeks to rescind a contract on the grounds of fraud must do so with reasonable promptness after discovery of the fraud.
G. S. 1949, 60-306, Third, provides that a civil action other than for the recovery of real property, on the ground of fraud, must be brought within two years, such period to run from the discovery of the fraud.
Under either the “diligence rule” of the cited cases, or the provisions of the mentioned statute, plaintiffs’ action had long since been barred when it was filed on September 26,1951, and it was not error to sustain the demurrer to the original petition.
If the amended petition was stricken on the ground its allegations amounted merely to a repetition of those of the original petition, to which a demurrer had been sustained, the ruling was correct. (Fidelity Hail Ins. Co. v. Anderson, 172 Kan. 253, 239 P. 2d 830.) On the other hand, if it was stricken on the ground the purported cause of action alleged was barred by either the rule of “diligence” or the two-year statute of limitation, the ruling was likewise correct. This pleading, as stated, was not filed until May 26, 1953, which was over three years after it alleged that plaintiffs had first discovered the discrepancy in the width of the tract. So, in either event, assuming the amended petition did, for the first time, state a cause of action, it clearly was barred.
What has heretofore been said applies with equal force to the third amended petition and the action of the trial court in ultimately sustaining defendant’s motion for judgment on the pleadings and opening statement. The action, as brought, was barred. All contentions advanced by plaintiffs have been examined and considered but are found to be without merit. No error has been made to appear and the judgment is therefore 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 of Geary County, Kansas, sustaining a motion to quash an information.
The Kansas State Hotel and Restaurant Board caused an information to be filed against the appellee herein, Irene Pendarvis, alleging that she unlawfully and willfully operated an apartment house in Junction City, Kansas, without obtaining a state license for the year 1955 as required by law.
The appellee filed a motion to quash the information for the reason that the statute upon which the information was predicated, to wit: G. S. 1955 Supp., 36-104 is unconstitutional.
There is little dispute about the facts and in order to simplify the issues before the district court the parties stipulated and agreed as follows:
“1. That during the year 1955 and at die present time, defendant is the owner and operator of a four unit dwelling located at 747 West 1st Street, Junction City, Kansas.
“2. That defendant occupies one of these units as her home and leases the remaining three units on a month basis to tenants of her choice.
“3. That the situation outlined in (2) above existed during the year 1955.
“4. That defendant refuses to purchase a license for operating an apartment house as provided by Section 2, G. S. 1949, 36-104, as amended in 1955, and did so refuse during the year 1955.”
The district court sustained the motion to quash the information.
While the state makes several specifications of error, the question in this appeal is whether G. S. 1955 Supp., 36-104 is in violation of, or contrary to, Section 17 of Article 2 of the Kansas Constitution.
Section 17 of Article 2 of the Kansas Constitution is as follows:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state: Provided, The legislature may designate areas in counties that have become urban in character as ‘urban areas’ and enact special laws giving to such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.”
G. S. 1955 Supp., 36-104 is as follows:
“Every building or other structure, together with any building or structure used in connection therewith, kept, used, maintained, advertised, or held out to the public to be a place where furnished or unfurnished living rooms for light housekeeping accommodations may be rented as a single room or as a suite of rooms, containing four or more single units or suites, or both, regardless of the number of tenants therein, and regardless of whether such room or suite of rooms is occupied by an, owner or operator of such a building or structure . . . they shall, for the purpose of this act, be deemed an apartment house. . . .” (Emphasis ours.)
Appellant contends tbe statute is a general law and provides a reasonable and proper classification with uniform and equal operation throughout the state; therefore, it is not contrary to the Kansas Constitution.
Appellee contends to the contrary and the district court so held. In its memorandum opinion quashing the information, the court said:
“Section 36-104 of the General Statutes of Kansas of 1949 defines an apartment house as a structure having at least four units of light housekeeping units or suites and provides for the licensing of the same. The legislature of 1955, in Section 2, Chapter 235 of the Session Laws of 1955 amended Section 36-104, among other things, by inserting the following words therein, to wit:
“ ‘. . . and regardless of whether any such room or suite of rooms is occupied by an owner or operator of such building or structure.’
“The question therefore arises on this motion to quash, as to whether such 1955 amendment is constitutional and within the power of the legislature to enact.
“It will be admitted as a truism that in the enacting license legislation the legislature is bound by our constitution to make classifications that are reasonable and that apply equally to all members of the class legislated upon. The legislature is not empowered to require a license from a person for the privilege of living in his own home. There is no question that they had the power to require a license for rooming houses and apartment houses. They have chosen to classify an apartment house as one having four apartments. That means rental apartments. They cannot say that when an owner or operator occupies as his home one of the units of the structure, that in that case the figure four contained in the amendment shall be construed as the figure three.
“The words quoted above from the 1955 amendment offend the constitution by reason of an unreasonable classification, and cannot stand.”
The constitutional question present here is one on which this court has made a great number of decisions. In fact, there are more than one hundred cases annotated under the above constitutional provision.
The constitutions of practically all of the states contain similar provisions which prohibit the passage of local or special laws.
In determining whether a law is general or special, our court follows the weight of authority of looking ordinarily to substance rather than to form and in testing such legislation have stated broadly that general laws are those which relate to, or bind all, within the jurisdiction of the law making power, while special laws are limited in the objects to which they apply.
It has always been recognized that objects of legislation may be grouped into classes for some general legislative purposes. If the class created is not too artificial in view of the purpose of the law, the act is considered general. If the classification merely serves to identify the object to be affected, the act is special. For practical purposes, therefore, the question of whether a law is general or special resolves itself into the propriety of the classification used by the legislature.
Our constitutional provision requires not only that the law shall be of a general nature but that it shall also be of uniform operation. On the subject, see 12 Am. Jur., Constitutional Law, §541:
“The mere fact that a law only applies, however, to a limited number does not make it special instead of general. It may be general within the constitutional sense and yet, in its application, only affect one person or one place. Because its right and protection cannot be enjoyed by every citizen does not make it unconstitutional. If the law is general and uniform in its operation upon all persons in like circumstances, it is general in a constitutional sense. Laws are general and uniform not because they operate on every person in the state, but because they operate on every person who is brought within the relations and circumstances provided for — not because they embrace all of the governed, but because they may embrace all — if the persons governed occupy the position of those who are embraced. Classification is permissible under constitutional provisions forbidding local or special laws, provided not only the law applies uniformly to all persons in its operation who are in the same circumstances, but provided there is a rational basis for putting the persons to whom it applies in a different group from other persons. Therefore, the rule is settled that a statute relating to persons or things as a class is a general law, but a statute relating to particular persons or things of a class is special. Under this rule it is apparent that in every case the vice of a law, as a special law, is that it rests upon a false and deficient classification and does not embrace all of the class to which it is naturally related.” (p. 239.)
Also 12 Am. Jur., Constitutional Law, § 542:
“A provision requiring uniformity of legislation does not mean that all laws must embrace all persons, since a law is said to be general and uniform, not because it operates alike upon every person in the state, but because it operates alike upon every person in the state who is brought within the conditions and circumstances prescribed by the law. As the rule is sometimes stated, it is sufficient if a law operates the same in all parts of the state under the same circumstances. The word ‘uniform’ in such constitutional provisions does not mean ‘universal’, and, therefore, the uniform operation required by them does not mean universal operation. A law may be constitutional within the purview of such constitutional provisions, and yet operate in fact only upon a very limited number of persons or things or within a limited territory. Classification made by statute meets a constitutional requirement that all laws of a general nature shall have a -uniform operation, however, if based upon something which distinguishes one class from another in such a way as to suggest the reasonable necessity for legislation based upon such classification.” (p. 241.)
See, also, 16A C. J. S. Constitutional Law § 489, p. 242.
See, also, excellent articles and collection of Kansas cases in 21 JBK 375 and 13 JBK 206.
These principles of construction have been repeated over and over again in the cases decided by this court under Section 17 of Article 2 of the Kansas Constitution. The parties to this appeal have cited and quoted State, ex rel., v. Allen County Comm'rs, 156 Kan. 248, 133 P. 2d 165; Board of County Comm’rs v. Robb, 166 Kan. 122, 199 P. 2d 530; Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915; Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885; Redevelopment Authority of the City of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P. 2d 782; and Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071, all of which enunciate these principles.
In Board of County Comm'rs v. Robb, supra, the court said:
“If a law of general form operates uniformly on all members of the class to which it applies, it is not open to the objection it is a special law if the classification is not an arbitrary and capricious one, nor in such case does it contravene article 2, section 17, of the constitution of the state of Kansas.” (Syl. 4.)
In Rambo v. Larrabee, supra, the court said:
“. . . It is entirely competent for the legislature to adapt its laws general in their nature to general classifications, either of individuals, surroundings or conditions, but such classification must always be a natural one, not an arbitrary or fictitious one. . . (p. 644.)
In Board of Education v. Davis, supra, the court said:
“An act which operates on all persons and things standing in the same situation and circumstances and which may be reasonably placed in a single class is a general law ... A law may be special by being so restricted as not to include all the subjects of a class and also where it excludes subjects of a class from its operation. . . .” (pp. 289, 290.)
The question before us then resolves itself to this: Are the constitutional requirements fulfilled by G. S. 1955 Supp., 36-104? To answer the primary question of whether it is a general law with uniform application we must first answer the secondary question of whether the classification of the statute meets the above tests of construction as to reasonableness.
The state of Kansas has long exercised its authority under the police power over hotels, restaurants and apartment houses through the enactment of a licensing and regulatory act in 1913. (Chapter 204, Laws 1913 — G. S. 1949, Chapter 36.) These laws have been amended from time to time and were most recently amended in 1955.
Article 1 of chapter 36 defines hotels (36-101), rooming houses (36-102) and apartment houses (36-104). Sections 36-101 and 36-104 and a number of other sections were amended in 1955 primarily to improve enforcement of the law and to bring motels within the scope of the act. Among other things, section 36-104 was amended as follows:
“. . . and regardless of whether such room or suite of rooms is occupied by an owner or operator of such a building or structure . .
It was the contention of the appellee and the decision of the district court that this amendment makes an otherwise valid classification based upon the number of rental units arbitrary, fictitious and capricious for the reason that the statute as amended places the rental units and a unit occupied by the owner in the same class under the definition of an “apartment house.”
Neither the district courts nor the appellee challenged the police power of the state to regulate or license apartment houses, nor the basic classification of “number of units” used by the legislature.
The district court concluded that the classification could not operate on the owner who occupied one of the four units in the apartment house and since the statute operates only on apartment houses with four or more apartments, the owners occupancy of one reduces the number of rental units to three and thus the house is not subject to licensing under the statute.
The court cited no authority for its decision and the appellee in her brief cites only Kansas cases on the general rules of construction under the annotations of section 17 of article 2 in support of her contention. Both appellant and appellee concede that the cases under section 17 of article 2 turn pretty much on their individual facts.
Appellant has cited several Florida cases where the constitutionality of a Florida statute was in question. (State ex rel. Warren v. Lehman, Sheriff, 100 Fla. 970, 130 So. 716; Hiers v. Mitchell, 95 Fla. 345, 116 So. 81; and Johnson v. State ex rel. Fox, 99 Fla. 711, 127 So. 317.)
In the definition of “apartment house” the Florida statute made an exception where rooms were occupied by the owner as a home or residence. The statute was attacked on the theory that such exclusion of the owner made the law discriminatory.
The court held otherwise stating that it was the obvious intent of the legislature to relieve from the license tax a home owner who rents rooms in his residence.
While the Florida and Kansas statutes in question are different, these cases have some persuasion here.
While the exercise of the police power is not questioned in this case, a consideration of the authorities concerning it does shed some light on the question here.
It is well settled that the state or a municipality may license and regulate the operation of an inn, apartment house, rooming house, restaurant or similar establishment. This authority to regulate and license is based upon the police power of the state in the interest of public health, safety and welfare. (See 11 Am. Jur., Constitutional Law, § 289 at page 1051; 28 Am. Jur., Innkeepers, §§ 31, 32; 43 C. J. S. Innkeepers § 6 at page 1145; and 43 C. J. S. Innkeepers §4.)
The fixed rule and basic standard by which the validity of all exercises of the police power is tested is that the police power of the state extends only to such measures as are reasonable and that all police regulation must be reasonable under all circumstances. (11 Am. Jur., Constitutional Law, § 302.)
The regulation and licensing of hotels, apartment houses, rooming houses and motels based upon the “number of rooms” has long been established as a reasonable exercise of the police powers as well as reasonable class legislation by the legislature. (Emphasis ours.) See 28 Am. Jur., Innkeepers, § 31:
“As in the case of other forms of regulatory legislation, inns, hotels, restaurants, boardinghouses, and other places where similar accommodations are furnished may be classified on a reasonable basis for the purpose of public regulation. Thus, classifications for the purpose of inspection, sanitary measures, and protection from fire, based upon the number of rooms, the number of guests, and the amount they pay, the locality of the establishment, and the capacity for service accommodation in restaurants have been held not to be unreasonable or class legislation. . . .”
On the “number of rooms” as a reasonable classification by the legislature — see, also, Miller v. Strahl, 239 U. S. 426, 60 L. ed. 364, 36 S. Ct. 147; Hubbell v. Higgins, 148 Iowa 36, 126 N. W. 914, Ann. Cas. 1912B 822; and an annotation in L. R. A. 1915B at page 1100.
On similar questions involving trailer camps, motor courts and motels — see 115 A. L. R. 1398 and 22 A. L. R. 2d 774.
In the enactment of laws governing the licensing and regulation of hotels, rooming houses, apartment houses and motels the Kansas legislature has always used as its basic classification the “number of units” — in the case of hotels and motels, five or more and in the case of apartment houses, four or more. Under the authorities this classification is reasonable both as to the exercise of the police power and in compliance with the constitutional provision of general and uniform laws.
In the light of these general authorities we cannot accept the appellee’s contention that the adoption of the amendment to G. S. 1955 Supp., 36-104 has the effect of changing the classification in the statute from “reasonable to unreasonable.”
Appellee’s contention is likewise not substantiated by logic or reason. In its wisdom, the legislature determined that apartment houses of “four or more . . . units” affected the public health, safety and welfare and should be licensed and regulated. The law applies generally to all apartment houses with “four or more . . . units.” It operates uniformly on all owners who may occupy one of these units. The fact that the owner does occupy one of the units does not change the legislative reason for licensing and regulation. Of course, the figure four might well have been the figure five or six, but in using this basis for reasonable classification the legislature had to draw the line somewhere.
We cannot agree with the district court which reduced the statutory number from four to three units because the owner occupied one. The legislature did not intend such a modification of the statute. To the contrary, the 1955 amendment made it very clear that the occupancy of a unit by the owner was not an exception to the statutory number of four units.
While the statute in question is probably entitled to the usual presumption of constitutionality we feel it is not necessary to invoke the presumption or rely upon it in this case.
The order of the district court quashing the information is reversed and the case remanded for further proceedings.
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The opinion of the court was delivered by
Price, J.:
This was an action for damages for alleged breach of a written contract for the sale of a trailer court. Defendant Voshell filed a cross-petition to recover the balance due on the contract. Judgment was rendered in his favor, and plaintiffs appeal.
Defendant bank, as escrow agent, was a mere nominal defendant and did not participate in the trial below. Whenever the word defendant is used it refers to defendant Voshell.
In 1952 a trailer court was constructed south of Salina and was located about one-half mile east of the Smoky Hill Air Force Base and close to a watercourse known as Dry Creek. A laundry and dry cleaning pickup station was operated at the trailer court. On January 1, 1955, defendant purchased the trailer court and laundry and dry cleaning pickup station, and a few days later plaintiffs called on him and attempted to rent or purchase the laundry and dry cleaning pickup station. Defendant refused to rent or sell that facility separate and apart from the trailer court. Pursuant to negotiations between the parties, defendant sold the trailer court, the laundry and dry cleaning pickup station, and all facilities in connection therewith, to plaintiffs for the sum of $9,250. The written contract of sale specified a down payment of $3,000, a payment of $500 on July 15, 1955, and a payment of $1,000 every six months thereafter until the total amount, together with interest at six per cent per annum on the unpaid balance, should be paid in full. The contract of sale contained the following provision:
“The Seller warrants and represents that he is the owner of a good and marketable title to all the assets enumerated above, free from all encumbrances; that be has complied with all laws, rules and regulations of the county, state and federal government relating to the above property;”
Plaintiffs went into possession of the property on January 15, 1955, and in connection with the operation of the facilities engaged in a small loan business on the premises by making loans of $5 and $10 to personnel at the Air Base on items of clothing which the airmen left with them as security, and for which a charge of ten per cent was made on each loan. This operation was stopped by a directive from the county attorney of Saline County in April, 1955.
At the time the trailer court was constructed a septic tank was installed with an outlet to a 300-foot lateral field lying to the south of the tank. There was another outlet from this tank leading to an abandoned four-inch gas line which in turn ran to the west and under Dry Creek. At some time unknown to the parties, a hole was cut in the top of the gas line at the bottom of Dry Creek, permitting overflow from the east septic tank to run from the tank and to discharge into the creek. In addition, and at a date unknown to the parties, another septic tank had been installed. Its only outlet led directly to the bank of Dry Creek. In March, 1955, a district engineer of the Division of Sanitation of the Kansas State Board of Health visited the trailer camp, and at that time advised plaintiffs that sewage from the camp should not be discharged into Dry Creek. Pursuant to this warning from the health authorities, plaintiffs took steps to remedy the system of sewage disposal, and in so doing incurred considerable expense.
In the fore part of July, 1955, plaintiffs contacted defendant at his office in McPherson and requested a change in the payment system under the contract of sale, explaining to him that they had had extensive expenses in connection with the sewage system, and that they would have to make additional expenditures because of it. They requested that the payment system be changed to a flat $150 per month. At the time of this conversation the $500 payment under the contract was due on July 15th. Defendant agreed to plaintiffs’ proposal with respect to payments, and pursuant to this new agreement plaintiffs paid $150 and accumulated interest on or about July 15th.
On August 22, 1955, plaintiffs again visited with defendant and advised him they had learned that the sewage disposal system at the trailer court was definitely inadequate, and gave him the option of refunding the money paid by them under the contract or of correcting the defects in the disposal system so as to comply with state regulations. Defendant did not accept either of these alternatives.
In September the sewage disposal system was officially inspected by the health authorities, and plaintiffs were notified by letter of its inadequacy and that in its then condition it was maintained in violation of G. S. 1949, 65-164, relating to the discharge of sewage into a creek.
On November 1, 1955, plaintiffs made written demand on defendant for damages for breach of contract. Upon his failure to respond, this action was brought, plaintiffs’ theory being that the sale to them of the trailer court with the sewage disposal system as it existed at that time constituted a breach of the provision of the contract of sale, heretofore quoted, which stated that the seller (defendant) had complied with all laws, rules and regulations of the county, state and federal government relating to the property in question.
Defendant’s answer, in addition to denying material allegations of the petition, was predicated upon the proposition of waiver and estoppel based on the fact that notwithstanding plaintiffs’ knowledge of the claimed inadequacy of the sewage disposal system as early as March, 1955, they nevertheless, in July of that year, sought and procured from defendant a new contract without making any complaint whatsoever to him concerning the same.
Trial was by the court and at the conclusion thereof the court made findings of fact and conclusions of law, the substance of the latter being that plaintiffs were not entitled to recover anything from defendant; that defendant was entitled to judgment against plaintiffs for the sum of $1,181.57 with interest from January 15, 1956, plus $1,000 with interest from July 15, 1956, and for costs, and that the court should retain jurisdiction of the matter until plaintiffs had paid the balance due on the purchase price according to the contract of sale.
Plaintiffs’ motion for a new trial being overruled, they have appealed, and specify sixteen alleged errors. Their real complaint, however, concerns six of the court’s findings of fact, which are:
“No. 9. In March of 1955 Stanley M. Smith, a district engineer for the Kansas State Board of Health, notified the plaintiffs that he had discovered that sewage from the trailer court was being discharged into Dry Creek just west of the court, and further advised them that sewage from the court should not be discharged in the creek.
“No. 10. During the first part of July, 1955, the plaintiffs called upon the defendant, Tony Voshell, and told him that they had made substantial expenditures about the court and facilities, mentioned specifically some expenditures which they had made in connection with the sewage system, and told the defendant that they would further have to make additional expenditures on account thereof. They further told him that by reason of the expenditures which they had made and would have to make that they would like to change die contract and pay the balance thereof at the rate of $150.00 per month. At that time a $500.00 payment was due on July 15, 1955.
“No. 14. When the plaintiffs asked the defendant, Tony Voshell, to modify the contract so that they would not have to pay the $500.00 due on July 15, 1955, they were then under duty and obligation to reveal to the defendant any claimed violation of the contract. At that time plaintiffs had received notice from the State Board of Health that they should not discharge sewage into Dry Creek. The defendant, Tony Voshell, would not have consented to the modification of the contract had he known that plaintiffs were going to claim any violation of the contract on the part of Tony Voshell, and he was misled to his prejudice.
“No. 15. In March, 1955, plaintiffs received such notice from the State Board of Health concerning its disapproval of the discharge of sewage, that they were then put on notice and were presumed to know all matters of which they later complained.
“No. 16. The plaintiffs waived their rights to claim any breach of contract by reason of the alleged discharge of sewage into Dry Creek and are estopped to assert any breach of contract on account of any alleged discharge of sewage into Dry Creek.
“No. 17. No breach of contract by the defendant, Tony Voshell, was proven.”
It is argued that finding No. 9 is directly contrary to the evidence insofar as it purports to state that the district engineer had discovered sewage from the trailer court being discharged into Dry Creek in March, 1955.
We find no merit to this contention. The record contains direct evidence that in March, 1955, plaintiffs were notified and advised that sewage from the trailer court must not be discharged into the creek.
It is contended that finding No. 10 is erroneous and contrary to the evidence insofar as it finds that plaintiffs told defendant they would have to make further expenditures on account of the made quacy of the sewage disposal system, and insofar as it finds that at the time of the July visit the $500 payment was due according to the terms of the contract.
This contention is likewise without merit. The record contains direct evidence to the effect that when plaintiffs contacted defendant in the early part of July, 1955, about a change in the method of payment they told defendant they had been to considerable expense and would have additional expenses in connection with the sewage disposal facilities. Further, by the very terms of the written contract, defendants were obligated to make a $500 payment on July 15, 1955.
Next it is contended that finding No. 14 is erroneous, but, assuming it to be correct, is in the nature of a conclusion of law rather than a finding of fact, and that such portion of it as states that defendant was misled to his prejudice is directly contrary to the evidence.
Again, we are unable to agree with plaintiffs’ contention. They had received notice in March of the inadequacy of the sewage disposal system, and if in July, when they sought a revision of the payment plan, they were claiming any breach by defendant they were duty bound to advise him of such fact at that time. Defendant testified that they were silent concerning any alleged breach and that he would not have consented to the change in payments had he known they were asserting any claim against him. As a practical matter, he waived his right to the $500 payment which was due him on July 15th and received only the $150 payment and accrued interest in lieu thereof. It may not be said that he was not misled to his prejudice.
Complaint is made that finding No. 15 is contrary to the evidence and is based upon a presumption that plaintiffs were supposed to know all matters of which they later complained concerning the sewage disposal system.
What has been said with respect to finding No. 9 applies to this contention. From the record there can be no doubt but that in March plaintiffs were advised by the district engineer of the inadequacy and insufficiency of the sewage disposal system and were put on notice.
Finally, it is contended that finding No. 16 is erroneous in that the elements of waiver or estoppel have no basis in the evidence, and that findings Nos. 16 and 17 are inconsistent with each other.
This contention apparently is based upon the proposition that if finding No. 17 is correct, that is, if no breach of contract by defendant was proved, the matter of waiver or estoppel is immaterial and does not enter into the lawsuit. It does not follow, however, that because of this alleged inconsistency the two findings are erroneous and must be set aside. Apparently the trial court was of the opinion that no breach of the warranty had been proved, but, assuming there had been a breach, plaintiffs, by their course of conduct, were estopped from making claim on account thereof.
As we read this record, the question of waiver and estoppel is really the crux of this lawsuit.
Rules applicable to the facts here of record have been stated many times by this court. With respect to estoppel it has been held that in order to constitute an estoppel (1) there must have been a false representation or concealment of material facts; (2) it must have been made with knowledge, actual or constructive, of the facts; (3) the party to whom it was made must have been without knowledge or the means of knowing the real facts; (4) it must have been made with the intention that it should be acted upon, and (5) the party to whom it was made must have relied on or acted upon it to his prejudice. (Peterson v. City of Parsons, 139 Kan. 701, 708, 33 P. 2d 715; Cox v. Watkins, 149 Kan. 209, 213, 87 P. 2d 243; Wichita Federal Savings & Loan Ass’n v. Jones, 155 Kan. 821, 824, 130 P. 2d 556, and Marett v. World Fire & Marine Ins. Co., 160 Kan. 125, 160 P. 2d 664.)
Tested by the foregoing rule, we think there can be no doubt but that by their acts and conduct plaintiffs were estopped from later claiming a breach of contract because of the sewage disposal system. As early as March, 1955, they had knowledge of its inadequacy. In July they sought a new contract from defendant with respect to payments. If at that time they had any complaint they concealed the fact from defendant. He knew nothing of any dissatisfaction on their part, and, relying upon their apparent satisfaction that he had fully complied with the written contract, consented to a change in the contract as to time and amount of payments. This operated as a benefit to plaintiffs and a detriment to him. Under all of the circumstances shown by this record, and assuming, for the sake of argument, the sewage disposal system was legally insufficient and inadequate and did not comply with pertinent statutes and regulations on the subject, and that such fact constituted a breach of the provision of the contract, plaintiffs waived their right later to complain.
We have searched this record and- find nothing erroneous with the findings or the judgment rendered. The judgment is therefore affirmed.
Schroeder, J., not participating.
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The opinion of the court was delivered by
Price, J.:
Defendant was charged with violating two ordinances of the city of Topeka — driving a motor vehicle while under the influence of intoxicating liquor, and with leaving the scene of an accident involving damage to a vehicle driven by another person. Following conviction in the police court he appealed to the district court. There he was acquitted of the first charge and convicted of the second, and has appealed.
While testifying on direct examination in her husband’s behalf, the wife of defendant was questioned concerning a conversation she had had with the complaining witness. The question presumably concerned alleged prior out-of-court statements on the part of the complaining witness inconsistent with a portion of his testimony given in the city’s case in chief. The city’s objection to the question put to defendant’s wife was sustained and from the record it appears the subject was pursued no further.
As already stated, the jury returned a verdict of guilty as to count two. Defendant’s motions in arrest of judgment and for a new trial were overruled, and he was sentenced to confinement for a period of ten days and to pay the costs of the action. He appealed from all adverse rulings, including the ruling on his motion for a new trial. His only specification of error is:
“The Court erroneously excluded evidence of and on behalf of the defendant.”
In his brief he states that the only question involved is whether the trial court erroneously excluded evidence of and on his behalf.
At the outset, we are confronted with the proposition whether defendant is entitled to have the question reviewed.
G. S. 1949, 62-1414, in substance provides that verdicts may be set aside and new trials granted on the application of a defendant in criminal cases for like causes and under like circumstances as in civil cases.
G. S. 1949, 60-3004, provides that in all cases where the ground of the motion for a new trial is error in the exclusion of evidence such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony.
Here the defendant did not produce the excluded evidence by affidavit, deposition or oral testimony. He did nothing to comply with the statute. He therefore falls squarely within the rule stated in The State v. Wellman, 102 Kan. 503, 170 Pac. 1052, L. R. A. 1918D 949, Ann. Cas. 1918D 1006, where it was held:
“The provision of the civil code that, in order to preserve for review a ruling excluding evidence, the evidence must be produced at the hearing of the motion for a new trial, applies as well in criminal cases, inasmuch as the criminal code makes such a ruling, if erroneous, a ground of new trial only by the adoption of the civil procedure in relation thereto.” (Syl. 4.)
The rule has been followed in numerous cases, among them being The State v. Ball, 110 Kan. 428, 204 Pac. 701; State v. Vandruff, 125 Kan. 496, 264 Pac. 1060, and State v. Beam, 175 Kan. 814 (Syl. 4), 267 P. 2d 509. The purpose of the requirement that where the exclusion of evidence is relied upon as a ground for a new trial the evidence must be produced at the hearing is obviously that the court may be advised as to what the party complaining could have shown regarding the matter to which it related if he had been given the opportunity. (Cornwell v. Moss, 95 Kan. 229, 236, 147 Pac. 824.)
It therefore follows that, as to the question relating to the exclusion of evidence, there is nothing for this court to review. Our review of the record leads to the conclusion that the verdict and judgment rendered are supported by evidence and, no error being made to appear, the judgment must be and is therefore affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action by a wife for a divorce on the grounds of extreme cruelty and gross neglect of duty, asking for control and custody of the minor child and other equitable relief.
Defendant’s answer denied plaintiff’s charges and asked that the prayer of her petition be disallowed.
Plaintiff filed a bill of particulars setting out the acts of extreme cruelty and gross neglect of duty relied upon under the pleadings and listing a chain of events from shortly after their marriage until the time of the filing of this action. The trial court granted plain tiff a divorce on the grounds alleged in the petition, awarded her the custody and control of the minor child, ordered defendant to pay a weekly specified sum for the child’s support and maintenance, and granted plaintiff judgment for $500.00 alimony.
Defendant appeals, specifying as error that the evidence of plaintiff and of her corroborating witness was insufficient to justify the granting of a divorce and the court erred in failing to set aside to defendant real estate located in the state of Pennsylvania.
Whether plaintiff’s evidence and that of her corroborating witness was sufficient to justify the trial court’s granting her a decree of divorce requires a review of the testimony. We do not deem it necessary to narrate in detail all the evidence introduced on behalf of plaintiff. The pertinent part, however, is summarized below:
Plaintiff was an English working girl and defendant a member of the Marine Corps stationed in England, where they met and were married in December, 1947, and lived with plaintiff’s grandparents in London until defendant with his wife returned to the United States. They rented an apartment in Pennsylvania in October, 1948, and lived there until November, 1951. The child was born in September, 1951. Plaintiff worked from November, 1948, to December, 1950, and made a substantial contribution toward the maintenance of the household. During that time defendant was attending a radio and television school. In November, 1951, the parties made a down payment on a home in Bristol, Pennsylvania. They lived together in the home until July, 1953, when plaintiff and the child visited her family in England, returning March 2, 1954. The latter part of that month, the plaintiff, taking the child with her, left the home in Bristol and came to Kansas, where she filed suit for divorce in October, 1955.
The testimony discloses the course of defendant’s conduct. From the time the parties arrived in Pennsylvania in 1948 they started quarreling over money matters. Plaintiff was working and contributing a substantial sum toward household expenses while defendant was attending a trade school. During these quarrels defendant used vile and abusive language toward plaintiff. He refused to give her an allowance even while she was working. He was rude to her friends. He would not take her out either to visit friends or on other occasions. When the plaintiff became pregnant he attempted to persuade her to take pills which would cause a miscarriage. Before and after the child was born he denied its parentage to the plaintiff and to fellow employees. At the time plaintiff was taken to the hospital for the birth of the child he refused to visit her there. When because of the couple’s numerous arguments the plaintiff, seeking to aid the marriage, often tided to induce the defendant to go with her to a minister, he consistently refused to do so. When plaintiff finally suggested they could no longer live together and they should obtain a divorce, defendant threatened to either kill or disfigure her if she left him. In 1954, conditions became so unbearable that she took the child and left the home. Defendant, in an attempt to contact her, wrote plaintiff’s relatives in England, who forwarded the letter which she received in October, 1955, wherein the defendant made the threat that if she did not get in touch with him he was going to feel very, very sorry for her. Immediately preceding the trial of this case, defendant told plaintiff:
“I don’t know what I am going to do about you yet.”
Mrs. Catherine Coulter of Croydon, Pennsylvania, testified by deposition that she had known the parties since October, 1948; that they rented an apartment on the same floor as hers, living there until November, 1951. During this period they were always arguing and defendant was cursing and swearing; in fact, they quarreled every day or so during the entire period and defendant called the plaintiff a bitch quite often. She testified that she and her husband took plaintiff to the hospital for the birth of the child and when defendant arrived home from work and upon her advising him that plaintiff was in the hospital and he should go over,
“He said he was not going over, he was going to bed. And not to call him all day as it didn’t matter and he didn’t want to be bothered, and he went to bed.”
She stated she never knew defendant to take plaintiff out but once and further testified:
“Q. Did you ever hear any of these arguments between Mr. and Mrs. Hoppe as to who the father of the child was?
“A. No, not who. He always just said it wasn’t his child. ‘It is not my baby. I am not going to have it.’ ”
No useful purpose could be gained by relating other conduct testified to by plaintiff. Suffice it to say, there was evidence which tended to show a course of conduct on the part of defendent toward the plaintiff extending over a period from 1948 until the time she left home in 1954 which humiliated and degraded her, and that defendant’s deliberate and persistent mistreatment of plaintiff was sufficient to undermine her health and seriously affect her both physically and mentally. An able and experienced trial judge heard and saw the parties. This advantage enabled him to judge more fairly and accurately the credibility and probative value of their testimony than this court can. Much weight is to be given to the findings of the trial court in cases of this kind. We are of the opinion that the unjustifiable and long-practiced course of conduct by defendant utterly destroyed the legitimate ends and objects of the marriage and constituted extreme cruelty, even though no actual physical or personal violence was inflicted. (Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127.)
Defendant claims that the corroborating testimony was insufficient because the witness had not seen the parties subsequent to the time they left her apartment in November, 1951. The testimony of the witness corroborated plaintiff’s evidence very fully as to the unrelenting nagging, swearing and accusations, and denial of the parentage of the child for over a period of three years. It is not necessary that the corroboration support plaintiff’s allegations throughout the course of mistreatment or as to every detail of plaintiff’s testimony. The principal reason for the requirement of corroboration has been and is for the prevention of collusion between the parties to a divorce action. It is not essential that it alone sustain the judgment or that it support the plaintiff’s testimony as to all of the allegations. Such a strict requirement might tend to thwart justice owing to the privacy of the relations between the parties. There is nothing in the record in the instant case to indicate collusion; and the corroboration fulfilled the requirements of our code. (G. S. 1949, 60-1509.) (Craig v. Craig, 112 Kan. 472, 480, 212 Pac. 72.)
In Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95, we said that corroborating testimony may be circumstantial as well as direct. A decision based on testimony corroborative in character and convincing to the trier of the facts will not be disturbed on appeal.
The corroboration required by the statute (G. S. 1949, 60-1509) providing that a divorce shall not be granted upon the uncorroborated testimony of either husband or wife or both of them does not mean that it is necessary that the corroboration support plaintiff throughout the course of mistreatment or as to every detail of her testimony. However, the corroboration should be such as will tend to establish some fact or facts testified to by plaintiff so as to make her testimony more probable and legally acceptable. Corroborating evidence is that which when added to the original evidence makes it stronger and more credible and the remoteness of the acts which are corroborated as affecting the sufficiency of the corroboration in general is a question largely within the discretion of the trial court. See the extensive annotation in 15 A. L. R. 2d, beginning at page 170, 193-198, inclusive.
Defendant next contends that the court erred in faffing to set aside the Pennsylvania real estate to him and invites our attention to G. S. 1949, 60-1511, which in substance provides that when a divorce shall be granted the court shall make a division of the real and personal property as may appear to be just and reasonable, and that it was a reversible ertor for the trial court to fail to do so. In the instant case there is nothing in the record to show whether the payments made on the Pennsylvania residence were made under a contract of purchase or whether a deed was executed and if so, to whom. There was no request made by either party to the trial court to determine the rights of the parties to this property. The matter was not called to the attention of that court on the motion for a new trial nor is the matter contained in defendant’s notice of appeal. It is raised for the first time in defendant’s specifications of error in this court.
We have repeatedly held that where it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Holton v. Holton, 172 Kan. 681, 243 P. 2d 222; West’s Kansas Digest, Appeal and Error, § 169; Hatcher’s Kansas Digest, Appeal and Error, § 304.) In this case it is manifest that the trial court had no opportunity ti> consider, reconsider or correct the error here complained of which might have been assigned as grounds for a new trial. Moreover, neither counsel for the plaintiff nor for the defendant has seen fit to cite any authority to this court on the contention raised. However, this court has made a research within its limited time and will consider the question.
The defendant placed too strict a construction on the mentioned statute. It was the intent of the Legislature that the court should make a division of only the property within its jurisdiction. Any attempt by one state to give to its courts jurisdiction beyond its own limits of real property situated in another state is an usurpa tion of authority and all judicial proceedings in virtue thereof are void, and a statute, however comprehensive, should not be construed as conveying such jurisdiction. In a divorce proceeding the courts of one state cannot by the decree directly affect the legal title to land situated in another state unless allowed that effect by the laws of the state in which the land is situated. (Cummings v. Cummings, 138 Kan. 359, 26 P. 2d 440.) (See also Annotation, 51 A.L.R. 1081.)
One of the leading and exhaustive opinions on this subject is Fall v. Fall, 75 Neb. 104, 106 N. W. 412, 75 Neb. 120, 113 N. W. 175; Fall v. Eastin, 215 U. S. 1, 54 L. Ed. 65, 30 S. Ct. 3, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853, wherein it was stated by the United States Supreme Court that:
“While a court of equity acting upon the person of the defendant may decree a conveyance of land in another jurisdiction and enforce the execution of the decree by process against the defendant, neither the decree, nor any conveyance under it except by the party in whom title is vested, is of any efficacy beyond the jurisdiction of the court.” (Syl. 1.) See also 27 C. J. S., Divorce, § 330, p. 1287.
The general rule is again stated in 17 Am. Jur., Divorce and Separation, § 449, p. 369:
“The rule is well established that in divorce proceedings the courts of one state cannot, by their decree, directly affect the legal title to land situated in another state, unless the decree is allowed that effect by the laws of the state in which the land is situated. The courts of one state may, however, by a decree in personam, indirectly affect interests in land in another state; -such orders do not operate directly on the title to the land, but only through the act of the party of whom the court has jurisdiction, and are enforceable only by methods effective against the person, such as proceedings for contempt, etc.”
We are of the opinion that had a request been made the trial court would have had the authority to compel plaintiff to convey her interest, if any, in the real estate in question to defendant because at the time of the trial the court had jurisdiction over the parties. It could have enforced that judgment by proceedings in contempt. However, if plaintiff had failed to execute the deed in compliance with the order of the court the judgment would have been inoperative as to conveying title to the property in Pennsylvania.
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 a suit on a promissory note payable to plaintiff (appellee) and executed on December 30,1948 by W. F. Muyres and his wife, now Le Nore Hineman, defendant (appellant), in the sum of $5,407.12, due one year after date. The note contained the provision, “For consideration mentioned above the undersigned hereby sells and conyeys to said payees the following property, . . . kept . . . Los Angeles County, California . . .” No property was described or listed in the note. The note contained an endorsement, “August 27, 1951 Credit $1525.00.” The petition in this action was filed April 4, 1956. Defendant’s answer denied that the credit payment on the note was made by her or by anyone authorized to act in her behalf and alleged that therefore plaintiff’s cause of action was barred by the statute of limitations. The cause was tried by the court without a jury. From a judgment for plaintiff, defendant appeals.
The note was dated December 30, 1948, and under its terms W. F. Muyres and his then wife, defendant, promised to pay the obligation on December 30, 1949. G. S. 1949, 60-306, First provides that a civil action, upon a promise in writing, can only be brought within five years after the cause of action accrues. Under the statute, plaintiff’s action filed April 4, 1956 would have been barred, unless the payment credited on the note August 27, 1951 had been made by defendant or by someone authorized to act in her behalf. This requires a brief review of the evidence.
Plaintiff had some correspondence with defendant relative to payment of the note, and in the early part of February, 1951 defendant called plaintiff by telephone in response to a letter from him, advising plaintiff that if any payments were to be made on the note they would have to come from personal property held by W. F. Muyres; that there were two dump trucks and two Fordson tractors with scoops, a 1949 Studebaker pickup and a welder, and that she had some furniture — all of which property was located in California; that plaintiff should go to California and pick it up because her former husband [W. F. Muyres] might sell it; and that if plaintiff wanted to get part of the note paid he should go out there and get what he could and she [defendant] would finish paying off the note when she got the rest of it. Plaintiff’s wife testified that defendant said in the mentioned conversation he [plaintiff] should get what he could and apply it on the note; that there was no directive where or when the property should be sold. Plaintiff testified that defendant promised to write him a letter which would reach him in California. In February, 1951 he went to California, where defend ant’s letter awaited him and in which she advised him of Mr. Muyres’ residence and where the property could probably be located. Plaintiff found Mr. Muyres and took possession of the Studebaker pickup truck and a Fordson tractor and, in accordance with Mr. Muyres’ instructions, returned them to Kansas to be sold so that the proceeds could be applied on the note.
Plaintiff further testified: ■
“Q. Isn’t it a fact as soon as you returned from California that you took the title to this pickup truck in your name? A. Yes.
“Q. On this tractor, didn’t you obtain possession of that on. or about the same time, around the 15th of February, 1951? A. Yes, he [Mr. Muyres] just told me to take it back and try to sell it for him and get what I could get for it. Both of them did.
“Q. Who’s he? A. W. F. Muyres and LeNore [defendant] both told me.”
On August 27, 1951 plaintiff sold the pickup truck for $775.00. Later, plaintiff realized the sum of $650.00 from his disposition of the tractor. Plaintiff extended the credit on the note as of August 27, 1951, the date he sold the pickup. Subsequent thereto, plaintiff had a conversation with defendánt wherein she said:
“. . . as soon as she got the money she would finish paying off the note, the difference.”
In view of this and other facts and circumstances as disclosed by the record, we are of the opinion that the evidence was sufficient to show defendant’s authorization to plaintiff to get the personal property, sell it and apply the proceeds of the sale as a payment on the note, and that as soon as she had the money she would finish paying on the balance. Inherent in the trial court’s judgment for the plaintiff was the finding that defendant authorized plaintiff to make the credit on the note. On appeal, findings of fact made by the trial court will not be disturbed if supported by substantial, competent evidence, and in the determination of that question the appellate court does not weigh evidence but is concerned only with whether it supports or tends to support the judgment of the trial court. (In re Estate of Osborn, 179 Kan. 365, 295 P. 2d 615, and cases therein cited.) Subsequent'to plaintiff endorsing the credit on the note, defendant ratified the payment by stating that as soon as she got the money she would finish paying the difference, ánd she is now estopped from asserting that she did not authorize plaintiff to credit the note.'
In Gorrill v. Goff, 148 Kan. 765, 84 P. 2d 953, we stated that a payment, like any other act, may be ratified and may be approved by express oral ratification; when, however, a credit endorsement on a note not originally authorized to be made by the maker is nevertheless ratified by the maker, it becomes as binding on him as though he had made the original payment under circumstances amounting to an acknowledgment of the debt.
Defendant contends that when the payee under a note takes property from one of the payors for the purpose of applying such property as credit on the note, the credit must be made at the time of taking and not at the time of sale of the property.
It is disclosed by the evidence in the case that defendant, as well as her former husband, Mr. Muyres, directed the plaintiff to take the property, sell it and apply the proceeds on the note. The general rule of law is stated in 70 C. J. S. Payment § 33, p. 243:
“A delivery of personalty by a debtor to bis creditor to sell it and apply the proceeds on the debt is not in itself a payment, but payment is effectuated as soon as value is realized from the property to the extent of the amount thereof.”
In 34 Am. Jur., Limitation of Actions, § 344, p. 268, it is stated:
“Where a debtor gives his creditor an order on a third person for a sum less than the amount of the debt, with the understanding that whatever is collected thereon shall be applied by the creditor in partial satisfaction of his claim, in determining whether or not the balance of the debt has become barred by the statute of limitations, the payment will be regarded as having been made, not at the time of the giving of the order, but at the time the proceeds of it were received, at least if the creditor acted in good faith in his endeavors to collect them.”
The plaintiff took the property February 15, 1951, made an attempt to sell it and finally consummated sale of the pickup truck on August 27, 1951. The question of whether this constituted a reasonable time for the sale of the property was one for the trial court.
Defendant’s final contention is that the taking of property of one comaker and giving credit on the note does not constitute payment by the other comaker so as to toll the statute of limitations.' In view of our holding as related above, this contention becomes inapplicable under the facts in this case and will not be discussed.
From an examination of the record it appears that the credit payment of August 27, 1951 was authorized and ratified by defendant and, as a result, the action was not barred by the statute of limitations. The judgment of the trial court is sustained by substantial, competent evidence and is therefore affirmed.
It is so ordered.
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The opinion o£ the court was delivered by
Schroeder, J.:
This appeal involves an attempt of the probate judge pro tern of Johnson County, Kansas, by an order dated February 22, 1956, and by certain earlier actions, to make a Kansas resident executrix, the appellee, responsible for assets outside Kansas’ boundaries which she did not have and had no way of obtaining.
Refore this court are twenty-five conclusions of law, as to which appellants seek review by this court, made by the district court of Johnson County, Kansas, supporting its judgment which took the opposite position from that of the probate judge pro tern, and struck down tire attempt to claim extra-territorial jurisdiction.
Important questions are presented by this appeal respecting the relative rights of the states of tire union to administer upon, pay claims from, and eventually distribute the property of a decedent. The extra-territorial jurisdiction claimed by the probate judge pro tem and by the appellants in this appeal brings immediately to the forefront the question of whether such attempts offend the equal protection and due process clause of the fourteenth amendment and the full faith and credit clause of the United States Constitution. Appellants ask this court to say that such clauses of the Federal Constitution are not offended by their claim of jurisdiction, and further ask this court to reverse the district court’s conclusion that G. S. 1955 Supp., 59-303, is unconstitutional and void on six different grounds.
There is no dispute as to the facts in this case. Briefly summarized, the facts disclose that Katherine S. DeLano had resided in Jackson County, Missouri, for more than forty years when, about four years prior to her death, she moved her residence to 6442 Sagamore Road, one block west of the state line in Johnson County, Kansas. There she resided at the time of her death on June 4, 1954. The removal of her residence from Missouri to Kansas occasioned no change in her business activities or her personal financial affairs, which continued to be centered and conducted in Jackson County, Missouri. At the time of her death those of her assets located in Kansas were an automobile, personal .effects and the residence real estate. Those of her assets which were located in Missouri at that time included intangible personal property which totaled over $312,000.00, consisting of bonds and notes in the amount of $93,826.01, bank accounts of $54,082.80, stock certificates of two corporations domiciled in Missouri of $9,900.00, and stock certificates plus accrued dividends of corporations domiciled in states other than Missouri or Kansas of $155,018.45.
The bank accounts were in various banks in Kansas City, Jackson County, Missouri. The bonds and the stocks, evidenced by certificates which represented shares in thirty-seven corporations, were in a safety deposit box in the Baltimore Bank in Kansas City, Jackson County, Missouri.
On the 18th day of June, 1954, administration proceedings were commenced in the probate court of Johnson County, Kansas, by admitting decedent’s will to probate. The Kansas properties were taken into possession, inventoried and administered upon by the Kansas executrix and appellee, Helen DeLano Sutherland, who was the decedent’s daughter and sole child.
On the 25th day of June, 1954, administration proceedings were commenced in the Jackson County, Missouri, probate court where the will of the decedent, being the same will admitted on June 18, 1954, in the probate corn! of Johnson County, Kansas, was admitted to probate. The bank accounts, bonds and stocks above mentioned were taken into possession, inventoried and administered upon by Donna S. Pearson, the executrix appointed by the Missouri probate court.
On October 18, 1955, attorneys for the Kansas executrix submitted required inheritance tax forms to the probate court in Johnson County which did not conform to the previously filed inventory of June 26, 1954, in that they listed the personalty purportedly located in Jackson County, Missouri. Shortly thereafter, on October 20, 1955, a probate judge pro tem was appointed and the State Director of Revenue was advised of the variance between the original inventory and the inheritance tax forms. The probate judge pro tem returned the inheritance tax forms to the attorneys for the Kansas executrix and on November 4, 1955, the Director of Revenue mailed notice to the Kansas executrix requiring a re-inventory and re-appraisal of the assets.
At a hearing on November 25, 1955, counsel for the Kansas executrix submitted to the probate judge pro tem of Johnson County, Kansas, for filing the following; documentary evidence:
(o) An amended probate inventory showing all of the assets of the decedent wherever located and administered, and showing which of them were being administered in courts other than the courts of the state of Kansas.
(b) A duly authenticated copy of the inventory of the estate of the decedent filed and admitted of record in the probate court of Jackson County, Missouri, authenticated under the Acts of Congress relating to the full faith and credit to be given judicial proceedings in another state.
(c) An Inheritance Tax Division Form IH-12 containing a complete description and appraisement of all property of the decedent, tangible and intangible, wherever located, subject to inheritance taxes of the state of Kansas, being identical to and containing the same listings and appraisements as shown in Inheritance Tax Division Form IH-12, filed on behalf of the executrix on October 18, 1955.
(d) A duly authenticated copy of all of the orders of tire probate court of Jackson County, Missouri, allowing claims against the estate of the decedent administered in Missouri, and of the receipts and checks filed therein showing payment of such claims, which authenticated copy or copies were authenticated under the Acts of Congress relating to the full faith and credit to be given judicial proceedings in another state.
(e) The original receipt of the United States District Director of Revenue showing the payment of federal estate taxes in this estate in the amount of $78,312.85.
(f) A Kansas Inheritance Tax Form IH-12Q.
(g) A Kansas Inheritance Tax Form IH-12G.
The probate judge pro tem took no action and the foregoing documents were again submitted for filing in the probate court of Johnson County upon the verified application of the Kansas executrix dated December 29, 1955.
The amended inventory correctly stated that the personalty located in Kansas totaled only $700.00, whereas the personalty located in Jackson County, Missouri, totaled over $312,000.00 as previously set forth. It also contained conditional statements that the personal property located in Missouri at the time of the death of Katherine S. DeLano was shown for inheritance tax purposes only.
On February 22, 1956, the probate judge pro tern admitted the amended inventory to record after striking the conditional statements and appointing new appraisers. The inheritance tax forms were returned to the executrix to be held until new appraisers could appraise the assets listed in the amended inventory, and the copy of the administration proceedings in the probate court of Jackson County, Missouri, duly authenticated under the Acts of Congress relating to full faith and credit, was denied record in the probate court of Johnson County, Kansas. The order of the probate judge pro tem dated February 22, 1956, entered on his own motion, found, among other things, that the probate court of Johnson County “by the statutes of this State” (Kansas) had jurisdiction of all tangible and intangible property of the decedent, Katherine S. DeLano, wherever located; that the papers and documents submitted in October, November and December, 1955, were either improper or improperly presented to the court; that the court had no power or authority to certify copies of inventories, claim statements and estate information to the Director of Revenue for assessment of inheritance taxes as requested by appellee; that statements made on the amended probate inventory submitted by the appellee to the effect that certain assets were not in her possession or under her control, but were under administration in Missouri (the truthfulness of which statements has never been a matter of dispute) were attempts to derogate from the jurisdiction of the court and were attempts to cause a conditional inventory to be filed and that the statements should be ■stricken from the invéntory; that the Jackson County, Missouri, probate court did not have any jurisdiction over any of the assets of Katherine S. DeLano, deceased, and that its proceedings had in reference to the estate were void and of no effect.
Subsequently, the Kansas executrix appealed from the orders entered in accordance with the foregoing findings and conclusions to the district court of Johnson County on March 22, 1956, where this action was tried de novo.
The district court approved motions to intervene which were filed by the appellants herein, the Attorney General and the State Department of Revenue and Taxation.
After full hearing the district court made findings of fact, the substance of which has heretofore been recited. The district court specifically found that the personal property of the decedent which was situated and located in the state of Missouri at the time of the decedent’s death was correctly listed and described in the inventory of the decedent’s estate filed in the probate court of Jackson County, Missouri, a duly authenticated copy of which was submitted with appellee’s application to the Johnson County probate court in Kansas on December 29, 1955. It further specifically found that the Missouri executrix filed an inventory and appraisal of said personal property in the probate court of Jackson County, Missouri, where it has been duly received of record. The 'district court further found that such personal property inventoried by the Missouri executrix has not been in the possession or control of the Kansas executrix, nor within the state of Kansas, at any time since the death of the decedent.
The district court also made forty-one conclusions of law, thirty-eight of which were requested by the appellee. In substance the district court found that G. S. 1955 Supp., 59-303, in terms applied to this estate but to be unconstitutional and void for six separate and individual reasons:
1. It was beyond the power of the legislature to enact.
2. It violated the full faith and credit clause of the Federal Constitution.
3. It violated the due process clause of the fourteenth amendment, because it directed the commencement of judicial proceedings in the absence of jurisdiction.
4. It violated the due process clause of the fourteenth amendment by attempting to deprive appellee of property without due process of law.
5. It denied the appellee the equal protection of the laws.
6. It was an unwarranted use of the taxing power not enacted for any purpose reasonably related to such power.
Apart from 59-303, supra, the district court found that the situs of the intangible personal property here in question, consisting of bank accounts, bonds and stocks, was in Jackson County, Missouri; that “The Probate Court of Jackson County, Missouri, in its proceeding commenced under Section 466.010, R. S. Mo. 1949, entitled Estate of Katherine S. DeLano, No. 73807, had jurisdiction over the personal property of said decedent situate and located in the State of Missouri at the time of the decedent’s death.” The district court also found that the Missouri proceedings should be accorded full faith and credit by the courts of the state of Kansas.
Of the forty-one original conclusions of law made by the district court, appellants assigned error with respect to only thirty of them. Appellants appear to have abandoned any opposition to five of these specifications and the remaining twenty-five conclusions of law specified as error resolve into the following issues presented on this appeal:
1. Do the courts of the state of Missouri have jurisdiction to administer upon the intangible property herein involved?
2. Do the courts of the state of Kansas have jurisdiction to administer upon the intangible property herein involved?
3. Does G. S. 1955 Supp., 59-303, purport to confer extra-territorial jurisdiction upon the courts of Kansas?
4. Does G. S. 1955- Supp., 59-303, violate the due process clause of the fourteenth amendment to the United States Constitution?
5. Does G. S. 1955 Supp., 59-303, purport to require Kansas courts to regard as void and of no force and effect some of the valid judgments, orders and decrees of the courts of sister states?
6. Does G. S. 1955 Supp., 59-303, violate the full faith and credit clause of tire United States Constitution?
The statute in question, G. S. 1955 Supp., 59-303, provides as follows:
“The courts of Kansas shall have exclusive jurisdiction to determine the devolution of property by will or by descent of all persons who are residents of Kansas at the time of death as to real property located in Kansas and tangible or intangible personal property wherever located. Any determination with regard to the devolution of such property by other courts except federal courts having jurisdiction by reason of removal and appeals from Kansas courts, shall be void and of no effect, and in all such cases, the director of revenue and taxation of the state of Kansas shall refuse to issue any inheritance tax order, waiver or clearance. In any case where a resident of Kansas shall die owning real estate in Kansas, or tangible or intangible personal property wherever located, exceeding the statutory inheritance tax exemption for his heirs at law, and the heirs at law or others entitled to commence administration proceedings in Kansas shall faff to do so, or shall commence administration proceedings in any other state, the director of revenue of the state of Kansas provided no order has been made for the payment of inheritance taxes shall be authorized to commence administration proceedings in the county where such person was a resident at the time of death, and upon notices provided by law, the probate court shall appoint an executor or administrator upon such petition for administration as in other cases. Such executor or administrator shall take possession of all tangible and intangible personal property owned by the decedent, wherever located, and of all real estate owned by the decedent located in the state of Kansas, and shall make full inventory thereof for the director of revenue as provided by law.”
The all-important questions in this appeal relate to the jurisdiction of a state to administer upon a decedent’s personal property. Once the extent of that jurisdiction is ascertained, any overstepping of its bounds is necessarily void and it matters not whether the excessive claim of jurisdiction is made by the legislature, through a statute, or whether the excessive claim is made by the courts of the state, with or without a statute purporting to authorize it. In this sense, questions respecting the legality of G. S. 1955 Supp., 59-303, in its endeavor to subject a decedent’s non-Kansas property to administration, are the same as those respecting the legality of the action of a court attempting to exercise the same jurisdiction under the more general probate statutes. (G. S. 1949, 59-1201, 1202 and 1203. See, also, G. S. 1949,79-1511 and 1517.)
The first consideration in this opinion will be devoted to the question of jurisdiction to administer upon intangible personal property and the correlative question of situs of intangibles for administration purposes.
Two distinct legal propositions entirely separate should be borne in mind. First, that the state where personal property is located (whether tangible or intangible personal property) has full power to administer upon it, pay creditors out of it, and dispose of it within constitutional limitations, or, at its option to permit the courts and administrators of other states to take possession and administer it. Second, under normal circumstances the court where the intestate’s personal property is located will look to the law of the decedent’s domicile to determine heirship, i. e., to determine the persons who succeed to the property and the proportions in which they take. The second proposition is but the usual conflict of laws rule which most courts adopt in order to assure a uniform distribution of all intestate personal property. It is not a mandatory rule, but merely one which most state courts have adopted in the distribution of personal property of a non-resident. Mississippi and Illinois have or had statutes providing that their own intestate laws shall govern distribution of the personal property of a non-resident decedent. (Mississippi Code, 1942 Ann., Vol. 1 A, §467; and Sec. 1 of the Illinois Descent Act, § 1872, as amended by Laws 1929, p. 359, § 1, Smith-Hurd Statutes, ch. 39, § 1.) This they are free to do because under the proposition first mentioned they have the absolute and final jurisdiction to determine the disposition of personal property within the borders of the state. The United States Supreme Court cases hereafter discussed will show the first proposition to be a fundamental rule of jurisdiction and the second a matter of comity.
In the event of any conflicting jurisdictional claims between the states of the union, the ultimate arbiter is the United States Supreme Court. Its opinions and decisions make it abundantly clear that the state of actual situs of the intangible has the undeniable legal and constitutional right to administer upon it, to the exclusion of all other states, and particularly to the exclusion of the decedent’s domicile. (Smith, Administrator v. The Union Bank of Georgetown, 30 U. S. 518, 8 L. Ed. 212; Vaughn et al. v. Northup et al., 40 U. S. 1, 10 L. Ed. 639; Blackstone v. Miller, 188 U. S. 189, 23 S. Ct. 277, 47 L. Ed. 439; Baker v. Baker, Eccles & Company, 242 U. S. 394, 37 S. Ct. 152, 61 L. Ed. 386; Iowa v. Slimmer, 248 U. S. 115, 39 S. Ct. 33, 63 L. Ed 158; and Riley v. New York Trust Co., 315 U. S. 343, 62 S. Ct. 608, 86 L. Ed. 885.)
In Smith, Administrator v. The Union Bank of Georgetown, supra, the decedent had been a resident of Virginia. Prior to his death he had contracted a debt on bond to one Thompson in Virginia and was also indebted under a simple contract to the Union Bank, in the District of Columbia. The decedent’s personal property, representing all of his assets at the time of his death, was located in the District of Columbia, where administration proceedings were commenced. These assets were not sufficient to pay all his debts. Thompson claimed a priority to the assets by virtue of the Virginia law which provided a preference for bonded debts. The Union Bank resisted Thompson’s claim asserting the law of the District of Columbia which gave no preference to bonded debts. The pivotal issue was whether personal property can have a situs separate from the domicile of the owner for purposes of administration. If the situs was in Virginia the law of the domicile would apply. If the situs was in the District of Columbia it would be immaterial that the decedent was domiciled in Virginia. Justice Johnson, speaking for the court, said at page 525:
“. . . even the common law has given it [personal property] a situs, by reference to any circumstances which mark it locally with discrimination and precision.”
After discussing various English cases the rule was summed up at page 526 as follows:
“In point of fact it cannot be questioned, that goods thus found within the limits of a sovereign’s jurisdiction, are subject to his laws; it would be an absurdity in terms to affirm the contrary . . .”
In referring to the conflicts which would arise in the event the laws of the domicile were held to overrule the policy or laws of the situs with respect to claims, priorities and contracts against public policy, the court said at pages 527 and 528:
“The actual course of legislative action in every civilized country, upon the effects of deceased persons, seems wisely calculated to guard against the embarrassments arising out of such conflicts, and to preserve in their own hands the means oí administering justice, according to their own laws and institutions. . . .
“Whether it would or would not be politic to establish a different rule by a convention of the states, under constitutional sanction, is not a question for our consideration. But such an arrangement could only be carried into effect by a reciprocal relinquishment of the right of granting administration to the country of the domicil of the deceased exclusively, and the mutual concession of the right to the administrator, so constituted, to prosecute suits every where, in virtue of the power so locally granted him; both of which concessions would most materially interfere with the exercise of sovereign right, as at present generally asserted and exercised.”
Another case often cited is Vaughn et al. v. Northup et al., supra, where Justice Story delivered a unanimous opinion of the court in holding that an administrator could recover upon debts due from the United States Government to the decedent in any state where the administrator was empowered to act. Of the administrator’s powers, Justice Story said:
“. . . Every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it; and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased in any other state; and whatever operation is allowed to it beyond the original territory of the grant is a mere matter of comity, which every nation is at liberty to yield or to withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its own citizens. On tire other hand, the administrator is exclusively bound to account for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunals of other states have no right to interfere with or to control the application of those assets, according to the lex loci . . . The authorities to this effect are exceedingly numerous, both in England and America; . . .” (pp. 5, 6.)
In Blackstone v. Miller, supra, (overruled in Farmers Loan Co. v. Minnesota, 280 U. S. 204, 209, 50 S. Ct. 98, 74 L. Ed. 371, by reason of a change in tax policy in the supreme court) the issue was whether the state of New York could impose a succession tax upon the transfer of assets held in New York and owned by a decedent domiciled in Illinois. The assets consisted largely of deposits in a New York bank. Determination of the foregoing issue was held to depend upon whether the state of New York had power to control the transfer of the assets. Justice Holmes, speaking for the court, said:
“. . . the naked question is whether the State has a right to tax the transfer by will of such deposit.
“The answer is somewhat obscured by the superficial fact that New York, like most other States, recognizes the law of the domicil as the law determining the right of universal succession. The domicil, naturally, must control a succession of that kind. Universal succession is the artificial continuance of the person of a deceased by an executor, heir, or the like, so far as succession to rights and obligations is concerned. It is a fiction, the historical origin of which is familiar to scholars, and it is this fiction that gives whatever meaning it has to the saying mobilia sequuntur personam. But being a fiction it is not allowed to obscure the facts, when the facts become important. To a considerable, although more or less varying, extent the succession determined by the law of the domicil is recognized in other jurisdictions. But it hardly needs illustration to show that the recognition is limited by the policy of the local law. Ancillary administrators pay the local debts before turning over the residue to be distributed, or distributing it themselves, according to the rules of the domicil. The title of the principal administrator, or of a foreign assignee in bankruptcy, another type of universal succession, is admitted in but a limited way or not at all. See Crapo v. Kelly, 16 Wall. 610; Chipman v. Manufacturers’ National Bank, 156 Massachusetts, 147, 148, 149.
“But it is plain that the transfer does depend upon the law of New York, not because of any theoretical speculation concerning the whereabouts of the debt, but because of the practical fact of its power over the person of the debtor. The principal has been recognized by this court with regard to garnishments of a domestic debtor of an absent defendant. Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U. S. 710. See Wyman v. Halstead, 109 U. S. 654. What gives the debt validity? Nothing but the fact that the law of the place where the debtor is will make him pay. It does not matter that the law would not need to be invoked in the particular case. Most of us do not commit crimes, yet we nevertheless are subject to the criminal law, and it affords one of the motives for our conduct. So again, what enables any other than the very creditor in proper person to collect the debt? The law of the same place. To test it, suppose that New York should turn back the current of legislation and extend to debts the rule still applied to slander that actio personalis moritur cum persona, and should provide that all debts hereafter contracted in New York and payable there should be extinguished-by the death of either party. Leaving constitutional considerations on one side, it is plain that the fight of the foreign creditor would be gone.
“Power over the person of the debtor confers jurisdiction, we repeat. And this being so we perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chatties found within the State at the time of the death. The maxim mobilia sequuntur personam has no more truth in the one case than in the other. When logic and the policy of a State conflict with a fiction due to historical tradition, the fiction must give way.” (pp. 203, 204, 205, 206.)
In Baker v. Baker, Eccles & Company, supra, Justice Pitney, speaking for a unanimous supreme court made it perfectly clear that the state of a decedent’s domicile has no authority in rem to administer upon and determine the devolution of intangible property having its situs in another state if the other state chooses not to relinquish its own authority over the other property.
A case directly in point is Iowa v. Slimmer, supra. There the decedent was an Iowa resident who had placed his entire estate consisting of promissory notes and government bonds in the state of Minnesota for safekeeping for the purpose of avoiding Iowa inheritance taxes. Iowa sought leave to file a bill in the supreme court against the state of Minnesota and certain citizens of Minnesota, including the decedent’s son. Justice Brandéis wrote the opinion for a unanimous court and found that there was a “conclusive reason why leave to file the bill of complaint should be denied.” The reason was set forth as follows:
“Substantially the whole of decedent’s estate consisted of notes and bonds. Under an arrangement which had been in force for five years or more, these securities were, at the time of his death, in Minnesota in the custody and possession of an agent resident there. Minnesota imposes inheritance taxes; and its statutes provide (Minnesota Gen. Stats., 1913, § 2281) that no transfer of the property of a nonresident decedent shall be made until the taxes due thereon shall have been paid. Regardless of the domicil of the decedent, these notes and bonds were subject to probate proceedings in that State and likewise subject, at least, to inheritance taxes. Minnesota Gen. Stats., 1913, §§ 7205, 2271; Bristol v. Washington County, 177 U. S. 133; Wheeler v. New York, 233 U. S. 434. Furthermore, so far as concerns the property of the decedent, located at his death in Minnesota, the probate courts of that State had jurisdiction to determine the domicil. Overby v. Gordon, 177 U. S. 214. But even if decedent was not domiciled in Minnesota, its court had the power either to distribute property located there according to the terms of the will applicable thereto, or to direct that it be transmitted to the personal representative of the decedent at the place of his domicil to be disposed of by him . . .” (pp. 120, 121.)
The Baker and Slimmer cases were expressly relied upon in Riley v. New York Trust Co., supra, where it was held that the state of the decedent’s domicile did not have in rem jurisdiction to administer upon corporate stock having its situs in another state.
The appellants rely upon Kansas cases which they contend establish the law to the effect that intangibles such as debts and other choses in action ordinarily follow the person — mobilia sequunter personam — and have their situs at the domicile of the owner. The cases relied upon by the appellants include Moore, Adm’x, v. Jordan, 36 Kan. 271, 13 Pac. 337; In re Millers Estate, 90 Kan. 819, 136 Pac. 255; Toner v. Conqueror Trust Co., 131 Kan. 651, 293 Pac. 745; and In re Estate of Rogers, 164 Kan. 492, 190 P. 2d 857.
In all of these Kansas cases cited the decedent was domiciled in a state other than Kansas and this court had before it the question of whether the personal assets should be administered at the foreign domicile. The appellants contend that if the domiciliary administration theory sends assets out of Kansas for administration, there is no reason why the theory should not be equally valid when applied in reverse where a decedent is domiciled in Kansas. This argument is not impressive. While Kansas has the power to determine whether or not it shall retain assets within its boundary and administer upon them or give them up to the state of a non-resident decedent’s domicile for the purpose of administration, which it has the perfect right to do, it is apparent from the decisions of the United States Supreme Court if this court should seek to impose the mobilia doctrine in reverse that it would immediately transcend its powers and seek to give its judgments extra-territorial effect by infringing upon the sovereign rights of other states.
In fact, the last word of this court on the subject is reflected in the case of In re Estate of Shultz, 180 Kan. 444, 304 P. 2d 539, which counters the mobilia doctrine. It was there stated:
“The supreme court of the United States has recognized that the rule of mobilia sequuntur personam whereby personal property of a deceased wherever located is subject to the law of his domicile, as is contended by the executrix, has yielded more and more to the modern rule of lex situs whereby such personal property is subject to the law of the state where the property is located. As a result, the state of the domicile has no power beyond its boundaries to control a decedent’s personal property located in another state except where such state sees fit to make the excess over that necessary to pay debts and expenses subject to the domicile of the decedent . . .” (p. 447.)
Appellants argue that the Shultz case deals only with tangible personal property and not with intangibles. It is significant that this court cited three cases involving intangibles in support of the proposition stated in the Shultz case. The Rogers case upon which appellants rely heavily is consistent with the position taken by this court with respect to extra-territoriality. Justice Wedell, speaking for the court in that case, reviewed many Kansas decisions supporting the mobilia doctrine and then said as follows:
“We have diligently explored the possibility of making an exception in cases of this character on the ground of public policy. . . (p. 500.)
This language clearly recognized the power of this court to change the doctrine had it seen fit to do so. The fact that other states have exercised their power to retain assets within their respective jurisdictions does not give Kansas the right to interfere with their sovereign right.
We therefore hold in view of the foregoing authorities that the courts of Missouri have jurisdiction to administer upon the intangible property in question and that the courts of Kansas do not have jurisdiction to administer upon such intangible property, unless the state of Missouri cedes its jurisdiction over such property to the domiciliary executrix in Johnson County, which it may or may not do.' Laws of Missouri (1951) § 466.010, provide for the administration of estates of non-resident decedents, and after such administration has been conducted and the claims of local creditors allowed and paid “. . . any balance remaining shall be paid and delivered over either to the foreign domiciliary executor or administrator, if any, or to the legatees under decedent’s will, or if decedent left no will, to the heirs or other persons entitled thereto under the law of decedent’s domicile, as such probate court of this state may order.”
Do the Missouri administration proceedings require recognition under the full faith and credit clause and does G. S. 1955 Supp., 59-303, directly conflict with the full faith and credit clause?
' Art. 4, Sec. 1, of the Federal Constitution, requires each state to give full faith and credit to the “public Acts, Records, and judicial Proceedings of every other State.” Congress, by the same section, is authorized to prescribe “the Effect” of such acts, records and proceedings, and it almost immediately exercised this power. (Act of May 26, 1790, c. 11, 1 Stat. 122.) The current statute provides that public acts, records and judicial proceedings shall in every state have the same full faith and credit as they have by law or usage in the court of the state from which they are taken. (62 Stat. 947, [1948], 28 U. S. C. A., §§ 1738 and 1739.)
Since Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and Thompson v. Whitman, 85 U. S. 457, 21 L. Ed. 897, it has been accepted as settled that in rem proceedings, such as administration proceedings, are entitled to full faith and credit everywhere in the United States, subject to the right of other states to inquire into whether the court of first instant had actual jurisdiction over the res.
Reference is made to an excellent summary on the subject of the law herein presented in Pennoyer v. Neff, supra, at pages 722 and 723.
Appellants assert what they contend are two recognized exceptions to the full faith and credit doctrine. First, a second forum may refuse to recognize a foreign decree on the basis of public policy, citing Anglo-Am. Prov. Co. v. Davis Prov. Co., No. 1, 191 U. S. 373, 24 S. Ct. 92, 48 L. Ed. 225; M’Elmoyle v. Cohen, 38 U. S. 312, 10 L. Ed. 177; and Young v. Nave, 135 Kan. 23, 10 P. 2d 23; and second, that the second forum may also refuse full faith and credit upon a determination that the first forum did not have jurisdiction over the person or subject matter, citing Williams v. North Carolina, 317 U. S. 287, 63 S. Ct. 207, 87 L. Ed. 279.
Appellants rely on both exceptions. In support of the public policy exception, they argue that the domiciliary administration of decedent’s estate is supported by the taxation policy of this state, and say that any interference with the collection and enforcement of Kansas inheritance tax is an interference with the internal affairs of this state and contravenes the public policy of this state. This argument will be treated later in the opinion.
In support of the jurisdictional exception, appellants claim that the situs of intangibles is a jurisdictional fact and therefore open to question in a second state when the recognition of a decree is at issue. They say situs is a matter of legal definition and since situs is determinative of jurisdiction, Kansas upon a contrary finding of fact, viz., the situs is at the domicile of the decedent, could refuse to extend full faith and credit to the Missouri probate decree without violating Art. 4, Sec. 1, of the Constitution. They cite no specific authorities for this point but rely generally upon Baker v. Baker, Eccles & Company, supra.
What appellants propound is to have this court determine as a matter of law that the trial court’s finding as to the situs of the intangibles was erroneous. In support thereof, an over-simplified version of the holding in the Baker case is presented. It is contended that Kentucky’s failure to give full faith and credit was there upheld on the basis that the second forum had the right to determine domicile as a question of fact for itself without accepting the finding of the first forum on the question. This was true only because of other jurisdictional considerations. There it was contended by the Tennessee “domiciliary” representative that the personal estate of a decedent is a legal unit having its situs at the decedent’s last domicile, and that the title to the whole of it, wherever situated, is vested in the duly qualified domiciliary representative. This contention, it should be noted, is exactly what appellants are contending in the instant case, and it is exactly what 59-303, supra, purports to require. The argument was flatly rejected by the United States Supreme Court. Kentucky was the second forum and the action affected only the ownership of shares of stock in a Kentucky corporation having no situs outside of Kentucky so far as appeared, and a claim of indebtedness against the same corporation. The sole question there was whether the Tennessee proceedings were entitled under the Constitution of the United States and the Act of Congress to recognition in the courts of Kentucky as adjudicating adversely the asserted rights of another, a resident claimant in Kentucky, to share as distributee in the personal property situated in Kentucky, or as conclusively determining the fact of the domicile of the decedent as affecting that right, in view of the failure of the Tennessee courts to acquire jurisdiction over the person of such Kentucky claimant or over the corporation, domiciled in Kentucky.
The Tennessee court had no jurisdiction in personam over the Kentucky claimant, or over the Kentucky corporation, and it had no jurisdiction in rem over the Kentucky assets in controversy beyond its borders. The Tennessee claimant invoked the aid of the Tennessee judgments as judgments in personam. The court said at page 400:
“. . . Obviously, if fundamental principles of justice are to be observed, the ascertainment must be according to due process of law, that is, either by a proceeding in rem in a court having control of the estate, or by a proceeding in personam after service of process upon the parties to be affected by the judgment.”
The court further said at page 401:
“. . . The rule generally adopted throughout the States is that an administrator appointed in one State has no power virtute officii over property in another. No State need allow property of a decedent to be taken without its borders until debts due to its own citizens have been satisfied; and there is nothing in the Constitution of the United States aside from the full faith and credit clause to prevent a State from giving a like protection to its own citizens or residents who are interested in the surplus after payments of debts. . . . it is now too well settled to be open to further dispute that the ‘full faith and credit’ clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.” (See Pennotjer v. Neff, supra.)
A state may not evade its constitutional obligations by re-defining the concepts involved. To say that situs of an intangible and therefore jurisdiction is wherever a state may choose to define it to be, is to say that the limits of a state’s jurisdiction are wholly self-imposed.
A domiciliary state cannot acquire jurisdiction over out-of-state intangible assets by calling itself the situs, for the Supreme Court of the United States under such circumstances has found such a domiciliary decree to be violative of due process under the fourteenth amendment and not entitled to full faith and credit. (Baker v. Baker, Eccles & Company, supra; and Iowa v. Slimmer, supra.) To the same effect is Overby v. Gordon, 177 U. S. 214, 20 S. Ct. 603, 44 L. Ed. 741, where a Georgia decedent had a large bank account in Washington, D. C. The supreme court there said:
“Now, it is undeniable that tire sovereignty of the State of Georgia and the jurisdiction of its courts . . . did not extend to or embrace the assets of the decedent situated within tire territorial jurisdiction of the District of Columbia . . .” (p. 223.)
A garnishment case having direct bearing is Chicago, Rock Island & Railway v. Sturm, 174 U. S. 710, 19 S. Ct. 797, 43 L. Ed. 1144, reversing 58 Kan. 818, 51 Pac. 1100, where the Kansas court attempted to disregard the seizure of a debt by a foreign court on the ground that by its definition, mobilia sequuntur personam, the situs of the debt was in Kansas. The railroad in question had been garnisheed by an Iowa writ for a Kansas workman’s wages, and the workman immediately sued for the same wages in a Kansas court. In the eyes of the Kansas court, Iowa was without jurisdiction. The United States Supreme Court thought otherwise. Situs of the debt was wherever the debtor might be served. Iowa had by its process seized the debt and it had jurisdiction. The Kansas judgment was therefore reversed outright for failure to give full faith and credit to the Iowa proceedings.
G. S. 1955 Supp., 59-303, when it directs that judicial proceedings of courts of other states “shall be void and of no effect” has written the full faith and credit clause in the negative. Only the United States Supreme Court is “the final arbiter when the question is raised as to what is a permissible limitation on the full faith and credit clause.” (Williams v. North Carolina, supra; and Johnson v. Muelberger, 340 U. S. 581, 71 S. Ct. 474, 95 L. Ed. 552.) The invalidity of a statute which rewrites a Federal Constitution clause in the negative need not be labored.
The administration proceedings of the probate court of Jackson County, Missouri, respecting the intangible property and all steps and orders therein, properly presented to the probate court in Johnson County, Kansas, in the form of documents duly authenticated in accordance with the Acts of Congress relating to full faith and credit are entitled to full faith and credit within the meaning of Art. 4, Sec. 1, of the United States Constitution, by the courts of the state of Kansas.
It is elementary that judicial proceedings upon property in the absence of jurisdiction over that property, lacks and denies due process of law within the meaning of the fourteenth amendment. A statute which permits and directs such judicial proceedings is void for the same reason. This is exemplified in the Restatement of Law, Conflict of Laws, § 43:
“If a State attempts to exercise power by creating interests with respect to persons or things which it has no jurisdiction to create, its action is in violation of the Fourteenth Amendment to the Constitution and is void in the State itself. The Supreme Court of the United States may review all cases whether from a lower Federal court or from a State court of last resort which involve a question of the exercise of power on the part of a State when it has no jurisdiction.” (Comment a.)
The order of the probate court appealed from directing appellee to exhibit to the appraisers property not within her possession or control, but which was being administered upon in a proper proceeding in the probate court of Jackson County, Missouri, was void and beyond the jurisdiction of the court to enter, as in conflict with the due process clause and the equal protection clause of the fourteenth amendment to the United States Constitution, and as an order with which it was impossible for appellee to comply. Similarly, enforcement of 59-303, supra, would deprive appellee of property without due process of law by rendering appellee personally liable for failure to account to the probate court of Johnson County, Kansas, for assets of the estate of the decedent which cannot lawfully be brought within, and have at no time come within, the possession or control of appellee in her capacity as executrix of the estate of the decedent. The purported attempt of the Kansas probate court to administer upon the intangibles was in violation of the fourteenth amendment, and so also is the legislative "authorization” therefor in 59-303, supra. It is, therefore, unconstitutional and void for this additional reason.
G. S. 1955 Supp., 59-303, goes further and directs the Kansas Director of Revenue and Taxation to refuse to issue any inheritance tax order, waiver or clearance when another state proceeds to exercise its rightful jurisdiction over assets such as those involved in this case. It is designed to prevent any sister state from administering upon such property under threat of imposing a permanent cloud upon the title to all property in the estate. Kansas is without power to interfere with the jurisdiction of other states in this manner. The situation is analogous to that involved in an attempt to impose unconstitutional restrictions upon the right of a foreign corporation to do business in the state. (Terral v. Burke Constr. Co., 257 U. S. 529, 42 S. Ct. 188, 66 L. Ed. 352.)
Appellee concedes that Kansas has the authority to levy inheritance taxes upon the intangibles owned by a domiciliary decedent, but appellee hastens to add that Kansas may not employ that authority to reach an unconstitutional end — prohibition of resort to foreign courts of competent jurisdiction. This, we concede.
Further, 59-303, supra, is void and of no force and effect for the reason that its enforcement would deprive appellee of property without due process of law, in violation of the fourteenth amendment to the Constitution of the United States, by imposing a permanent cloud upon the title to property held by the appellee as a fiduciary and by causing the removal of appellee from her lawful and gainful duty as executrix of the estate of the decedent, unless appellee performs acts which are unlawful and criminal under the laws of the state in which they must necessarily be performed.
Appellants contend in line with their public policy argument that if Kansas has power to impose an inheritance tax on the devolution of intangibles of a resident decedent, and power to provide means for the assessment of those taxes, Kansas must likewise have the power to draw to itself exclusive probate administration upon those intangibles. Otherwise, it is said, the Kansas Director of Revenue has no way of determining whether the devolution and appraisal of those intangibles is properly effected, and consequently whether Kansas has received her due share of inheritance taxes. In support of 59-303, supra, the sole argument of the appellants is to the effect that the power to tax carries with it the power to provide for the enforcement and collection of the tax in any way it wishes. They urge this court, in view of the rules of statutory interpretation recently compiled in State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537, relating to the constitutionality of statutes, that 59-303, supra, should be construed to be constitutional as a tax collection statute. They concede that the statute is not directly worded as such but contend that in a negative way this was the intention of the legislature. This we cannot accept. The statute is written in plain and unambiguous language, and the power which the legislature seeks to have this state invoke through the statute is clear. In view of the authorities cited we regard appellants’ argument as wholly untenable. Furthermore, Kansas does not have and never has had authority to levy inheritance taxes on tangible property not situated in the state. (Treichler v. Wisconsin, 338 U. S. 251, 70 S. Ct. 1, 94 L. Ed. 37; and Frick v. Pennsylvania, 268 U. S. 473, 45 S. Ct. 603, 69 L. Ed. 1058.)
Appellants have failed to distinguish between the state’s jurisdiction to administer upon intangibles and its jurisdiction to levy inheritance taxes upon them. There is no necessary connection between these jurisdictions. The inheritance tax jurisdiction of a state has been the subject of a long series of supreme court decisions. During the forty-year period extending from 1903 to 1942 the supreme court wavered between confining inheritance tax jurisdiction to the domicile of the decedent, a rule which found its firmest enunciation in First National Bank v. Maine, 284 U. S. 312, 52 S. Ct. 174, 76 L. Ed. 313, and its present rule that the due process clause is not offended by double, triple or quadruple inheritance taxation so long as the taxing state has “some connection” with the intangibles. The current view is expressed in a series of three cases, Curry v. McCanless, 307 U. S. 357, 59 S. Ct. 900, 83 L. ed. 1339; Graves v. Elliott, 307 U. S. 383, 59 S. Ct. 913, 83 L. ed. 1356; and State Tax Comm’n v. Aldrich, 316 U. S. 174, 62 S. Ct. 1008, 86 L. ed. 1358. In the Aldrich case it is said at page 181:
“. . . In line with our recent decisions . . . we repeat that there is no constitutional rule of immunity from taxation of intangibles by more than one State. . .
And again:
. . Another State which has extended benefits or protection, or which can demonstrate ‘the practical fact of its power’ or sovereignty as respects the shares (Blackstone v. Miller, p. 205), may likewise constitutionally make its exaction . . .” (pp. 181, 182.) (Note that the Supreme Court of the United States has again resorted to citing Blackstone which was previously overruled by reason of changing tax policy.)
Thus, it is quite possible for inheritance taxes to be levied upon a share of corporate stock by (1) the domicile of the decedent, (2) the state where the transfer books are kept, (3) the state where the certificate is located, and (4) the state of incorporation.
Jurisdiction to administer upon property cannot thus be derived from jurisdiction to levy inheritance taxes on that property. Appellants have cited us to no authorities to the contrary. This court may well conclude that counsel, after diligent search, has not been able to find any. (McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074.)
Appellants argue that the domicile is the natural or optimum place at which to administer upon a decedent’s intangible property. In this connection, appellants have used various expressions throughout their brief. Let us see whether it is more “proper” or “practical,” and whether it “works best” to have all intangibles of the decedent administered at the domicile; and let us see whether appellants’ general statements about greater efficiency, less complication and better control are supported by fact. Administration of estates involves more than merely interpreting wills and decreeing the devolution of property. It also involves, among other things, the collection, inventory, appraisal and sale of assets and the determination and payment of creditors’ claims. How is a Kansas domiciliary representative to collect a bank account held in a Missouri bank? How is such a representative to collect on a promissory note which is held by another in a different state? How is a bond to be collected when the certificate is not in Kansas? How is stock to be transferred without possession of the certificate? How are any of them to be inventoried and appraised in Kansas? Shall the domiciliary representative collect such assets through the medium of midnight forays into other states? He has no other alternative if other states, such as Missouri, choose to vest in their own courts control over such assets. Of course, he might wait until the debtor or the person holding the bonds or stock certificates journeys into Kansas and then institute an action in the Kansas courts, but this is hardly a remedy that is “efficient,” “convenient” or “best.”
Another significant difficulty with the concept o£ domicile as a universal situs should be mentioned. Domicile is often an elusive thing, as pointed out so eloquently by Justice Rutledge, dissenting, in Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. ed. 1577. (Reference is made to pages 257,258 and 259.)
The insuperable difficulties attending a rule of unitary administration at the decedent’s domicile is indicated by appellants’ own authorities. (1 Beale, Conflict of Laws, §51.1 (1935); and Restatement of Law, Conflict of Laws, §§50 through 53.)
One other contention of the appellants deserves mention. They have challenged the right of the state of Missouri to administer upon the shares of corporate stock through the medium of administering upon the stock certificates. Appellee’s position is that as between the state of incorporation and the state where the certificate is located, the latter state having tire certificate within its power, is entitled to administer upon and otherwise determine the title to the shares. Appellee contends that it is the modern view that the shares are so far merged into the certificate that the certificate embodies the shares and is equivalent to tangible personal property. These positions need not be labored extensively, since appellants’ challenge of Missouri’s position to administer upon the certificates does not show any right in Kansas to do so. If it be assumed for purposes of argument that Missouri’s administration of the corporate shares of the non-Missouri corporations is not entitled to full faith and credit, it still is perfectly plain that Kansas can have no concern or objection to that administration, because Kansas has no jurisdiction in rem over, and no control over, the res. How can Kansas control, collect and distribute these shares (some of which have been sold on the New York Stock Exchange by the Missouri executrix and the remainder of which are registered in her name as executrix)? A moment’s analysis shows that where a certificate is in Missouri and the corporation is incorporated in a third state, the intangible property is wholly outside the borders of Kansas, as completely as a non-Kansas bank account. That being so, Kansas has no power over the shares.
'Modern authorities adopt the mercantile theory — that the certificate situs has a superior jurisdictional claim over the state of incorporation. It was held in 1900 in the case of Jellenik v. Huron Copper Mining Co., 177 U. S. 1, 20 S. Ct. 559, 44 L. ed. 647, that the state of incorporation had a pre-eminent claim to jurisdiction over the shares. That decision was influential in cases of decedent’s estates for some time thereafter in the state courts. (72 A. L. R. 179.) Those holdings were prior to the general adoption of the Uniform Stock Transfer Act — a statute which gives promise of consolidating the mercantile viewpoint of stock transfers everywhere. The mercantile viewpoint sanctions administration upon the certificate, regardless of the state of incorporation and regardless of the decedent’s domicile. (See Bowles v. R. G. Dun-Bradstreet Corp., 25 Del. Ch. 32, 12 A. 2d 392; and Lockwood v. U. S. Steel Corporation, 209 N. Y. 375, 103 N. E. 697.) The Supreme Court of the United States changed its theory of jurisdiction away from the holding in the Jellenik case in Disconto-Gesellschaft v. U. S. Steel Co., 267 U. S. 22, 45 S. Ct. 207, 69 L. Ed. 495. This is the last decision of the United States Supreme Court having a direct relationship to the subject. Following the Disconto case the authors of the Restatement of Law, Conflict of Laws, § 477, adopted the mercantile theory. The Restatement says:
“The administrator in possession of the certificate can administer it in the same way as any other chattel which is part of the estate . . . Should the corporation, upon presentation of the certificate and of sufficient evidence of the appointment of the administrator, refuse to transfer the shares to the administrator or his transferee, such administrator or his transferee respectively can proceed against the corporation by suit in his own name even though there is a local administrator in the forum.” (Comment c.)
Of interest is the position taken by the Missouri court. In Lohman v. Railway Company, 326 Mo. 819, 33 S. W. 2d 112, the Missouri supreme court gave full faith and credit to an administration in New York of certificates of a Missouri corporation, saying:
“The Disconto-Gesellschaft case seems conclusively to establish the rule that shares of stock in a corporation, represented by appropriate certificates of stock, constitute property in themselves, and not merely evidence of ownership, and have a situs for some purposes elsewhere than in the state where the corporation is domiciled. That case announces the latest and the controlling rule of the United States Supreme Court. . . .
“The certificates of stock held by Upmann must, therefore, be regarded as having the character of personal property in themselves and a situs for some purposes in the State of New York. . . .” (pp. 828, 829.)
In Toner v. Conqueror Trust Co., supra, this court cited Iowa v. Slimmer, supra, “As recognizing the proposition that the presence of a negotiable instrument in the state is sufficient upon which to found an administration upon the estate of a deceased nonresident . . .” (p. 664.)
The recent general adoption of the Uniform Stock Transfer Act is an important development. This statute with little variations has been enacted in all forty-eight states, Hawaii, Alaska and the District of Columbia. (6 U. L. A. 1956 P. P. The act is found in the Kansas statutes beginning at G. S. 1949, 17-4801.) In brief, it provides that title to shares of stock can be transferred only by delivery of the certificate. The actual title to the shares as against the rest of the world is governed by possession of the certificatei While an owner may be permitted to post bond if the certificate is lost or destroyed, in no other circumstances can a transfer of any kind be recognized unless the certificate is produced. On this subject a leading authority has been led to say:
“. . . This statute, though it does not specifically deal with the question of administration, in all other respects seems to' accept the mercantile theory. . . .
“It is submitted that the Uniform Stock Transfer Act should be construed as adopting the mercantile view whole-heartedly, including the treatment of the certificates as controlling the shares for purposes of administration.” (3 Beale, Conflict of Laws, § 477.2 [1935],)
It must be noted that the statute does not contain a specific provision respecting situs of stock for administration purposes, but it does refer to administrators in the second section. The act does not enlarge the power of the trustee, executor, administrator or other fiduciary to make a valid endorsement, that is, an executor or trustee must show his authority to make a transfer, by exhibition of a court order or a power in the will or trust instrument, as he did before the act was passed, but this provision has no effect on the jurisdiction of courts to declare ownership.
It follows that situs for administration purposes of all shares of corporate stock, as well as all other intangible property, under the facts and circumstances in the instant case is in the state of Missouri, since that state has the power to exercise control over the intangibles within her territorial borders.
Having found no error in the conclusions of law adopted by the district court, the judgment entered thereon should be and hereby is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action by the state department of social welfare (plaintiff, appellant) to recover from Charles Shoemaker (defendant, appellee) under the provisions of G. S. 1955 Supp., 59-2006, the statutory amount allowable for the care and maintenance of defendant’s father, an insane patient at a state hospital. From an order of the trial court sustaining defendant’s demurrer to its amended petition, plaintiff appeals.
Omitting the formal parts, the petition alleged, insofar as pertinent, that the patient, Harry L. Shoemaker, had been adjudged insane and admitted to the state hospital at Larned; that defendant was the son of the patient and a responsible relative and bound by the statute to support his father; that no guardianship of the patient’s estate had been undertaken; and that upon investigation no real or personal property was found to belong to the patient. It was further alleged that at the time the patient was committed he was the father of seven children whose names were set out therein, but that the addresses of five of them were unknown; that Mary Shoemaker, wife of the patient, had obtained a divorce from him after his commitment and her whereabouts were unknown. It was further alleged that plaintiff complied with all of the provisions of the statute relative to making written demands upon defendant for reimbursement for the care, maintenance and treatment of the patient; that like demands were made upon a daughter of the patient, Evalena Abercrombie; and that copies of all such demands were attached to the petition. Judgment was asked against defendant for the amount due under the statute for the care, maintenance and treatment of the patient.
Pertinent portions of G. S. 1955 Supp., 59-2006, read:
“The following shall be bound by law to support persons committed to or received as patients at the state hospitals, . . . Spouses, parents and chil dren. Payment for the maintenance, care and treatment of any patient shall be paid quarterly by said patient, by the guardian of his estate, or by any person bound by law to support him. The state department of social welfare may recover the sum of twelve dollars ($12) per week as compensation for the maintenance, care, and treatment of a patient in a state hospital, from such patient when no legal disability exists, from the estate of such person, or from any person bound by law to support such person. The state department of social welfare shall annually make written demand upon the spouse, parents, or children liable for the amount claimed by said department to be due for the preceding year, . . . The board of social welfare shall have the power to compromise and settle any claim due or claimed to be due from such spouse, parents or children, for the care, maintenance and treatment of any patient, and may, upon payment of a valuable consideration by said person bound by law to support him, discharge and release said person of any or all past or future liability herein, . . (Emphasis supplied.)
Plaintiff contends that the defendant may be served with written demand and sued individually for the reason that the mentioned statute imposes joint and several liability on the children for the support of the father. Defendant contends that in order for plaintiff to state a cause of action against one of the children of the patient there must be written demand made upon all of the children and where such demand has not been made the petition fails to state a cause of action. Contentions of the parties resolve into the question of whether the statute imposes a joint and several liability on the members of the class responsible for the support of the patient.
This question has not been previously presented to this court and inasmuch as the statutes of other jurisdictions generally differ from ours, there is little authority on the question before us: However, a somewhat similar statute was before the supreme court of Oregon in In re Idlemans Commitment, 146 Ore. 13, 27 P. 2d 305, where the statute imposed secondary liability as follows:
“The husband for the wife, the wife for the husband, the parent or parents for his or her children, and the children for their parents, according to their respective abilities to pay." (Emphasis supplied.)
The court expressed the opinion that the act was not worded as clearly as might be desired but concluded:
“The liability of the relatives, in our opinion is joint and several.”
The state department of social welfare is required by the mentioned statute to make annual written demand upon one whom the state seeks to hold secondarily liable for the support of an insane person. Our previous decisions have held this provision to be a condition precedent to collection. (In re Estate of Glass, 175 Kan. 246, 262 P. 2d 934; In re Estate of Colclazier, 157 Kan. 125, 139 P. 2d 152; and In re Estate of Caplinger, 157 Kan. 131, 139 P. 2d 156.)
The statute in question says that the following shall be bound by law to support persons committed as patients to a state hospital: “Spouses, parents and children.” This portion of the statute enumerates the various classes of individuals who shall have an obligation to support their relatives in a state hospital. The next section provides that payment for the maintenance, care and treatment of any patient shall be made quarterly by the patient or by any person bound by law to support the patient. It further provides the board with power to compromise claims due from the relatives enumerated and to make individual compromises with the individual children, inasmuch as the statute says, “and may, upon payment of a valuable consideration by said person bound by law to support him, discharge and release said person of any or all past or future liability.” (Emphasis supplied.)
G. S. 1955 Supp., 59-2003, provides that the probate court at the time of the inquest, shall inquire into the pecuniary position of the patient and those bound by law to support him and shall transmit to the superintendent a statement showing the assets and liabilities of the patient and of those bound by law to support him.
It is apparent from the aforementioned statutes that the legislature recognized that some of the relatives of a patient might be able to pay the costs of the support of such patient and, therefore, made provision whereby the state department of social welfare could obtain payment from certain persons liable for support of the patient, thereby placing the burden on those financially able to pay.
It seems clear that G. S. 1955 Supp., 59-2006, imposes a liability not only upon the classes enumerated but also upon any member thereof. At the beginning this statute sets out in the plural the classes of persons liable for the support of the patient. However, the specific payment section and the section authorizing recovery refer to those liable in the singular, which would indicate that the action for recovery could be brought against any one individual of the class the board seeks to hold liable.
We are of the opinion that the obligation of the relative or relatives named in the statute for the support of a patient in a state hospital is a contingent, joint and several liability created by the statute. The procedural requirements of written demand upon the “Spouse, parents, or children” must, when read into the context of the statute imposing joint and several liability, as we have concluded, be interpreted to mean that notice is required to those against whom suit is to be brought. In other words, notice is required only to those upon whom liability is to be imposed.
It follows that the judgment of the trial court is reversed and the case is remanded with directions to proceed in accordance with the views herein expressed.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the validity of a mineral lease entered into April 22, 1946, granting appellant lessee the right to quarry rock and other minerals for a primary term of five years “and as long thereafter as production is had” from land owned by appellees who claimed the lease had expired because of nonproduction following the expiration of the primary term.
On April 5, 1955, the State Highway Commission of Kansas instituted eminent domain proceedings to condemn the land described in the mineral lease. Those proceedings are in nowise involved, and pursuant to the award of the appraisers the condemner deposited with the clerk of the district court the sum of $10,938 as damages and compensation for the land taken. Neither the landowners nor the condemner appealed from the award, but the lessee, who claimed an interest in the land appropriated under the mineral lease, perfected his appeal to the district court. Thereafter, the landowners filed their motion to withdraw the total award, to which the lessee filed an answer alleging that the land taken was subject to the terms of the mineral lease and that he was entitled to share in the proceeds of the award. In their reply the landowners denied the validity of the mineral lease and alleged it had expired by reason of nonproduction. With the issues thus framed trial was had by the court. Judgment was rendered in favor of the landowners upon the finding that the mineral lease had expired by reason of nonproduction following the expiration of the primary term; the mineral lease was ordered canceled, and full payment of the award was directed to be made to the landowners. Following the overruling of his motion for a new trial, the lessee appealed.
The provisions of the mineral lease giving rise to this controversy, read:
“It is agreed that this lease shall remain in force for a term of five years from this date, and as long thereafter as production is had from said land by the said Lessee or assigns.
“In further consideration, Lessee agrees to pay Lessor, or to Lessor’s credit at the Guaranty State Bank of Topeka, Kansas, or its legal successors, the sum of Five Cents (54) p.er ton for all stone quarried and a like amount for all stone by-products, coal, clay, etc., mined on said land, and in the event that Lessee fails to produce sufficiently so that the royalties amount to $100.00 in one year, then and in that event, Lessee agrees to pay Lessors the sum of $100.00 as a rental. Said royalty payments shall be due and payable quarterly from the time that operations begin.”
Following the execution of the lease in April, 1946, the lessee moved rock quarrying equipment to the leased land and commenced production. As production was never sufficient in any one year to require the payment of $100 as royalty at 5‡ per ton, the lessee tendered and the landowners accepted minimum rental payments of $100 for each year of the primary term of the lease. After the expiration of the primary term on April 22, 1951, the lessee tendered and the landowners accepted a minimum rental payment of $100 on April 18, 1952, which both parties concede extended the lease to April 22, 1952. The lessee did not personally produce the lease following the expiration of the primary term but sublet the rock quarry and equipment in 1952 and again in 1953 to different operators and rock was produced and crushed by each, which was “stockpiled” on the premises and sold in 1953 and 1954. Royalty from such sales was included in the minimum rental payment of $100 tendered by the lessee to the landowners in 1953 and 1954, however, the landowners refused to accept all tenders of minimum rental payments for the terms ending April, 1953, 1954 and 1955. The lessee testified that the last quarrying operations were had in the late summer of 1953 — more than 18 months prior to the institution of proceedings to condemn the land in April, 1955.
The lessee principally contends the district court erred in its construction of the lease that nonproduction following expiration of the primary term effected its termination. He asserts that whether he produced the lease after April 22, 1951, was unimportant, and argues “that where as here, the terms of the lease as a whole, together with the acts of the parties, show that it was the intention to accept a sum of money in lieu of development, even after the primary term, failure to continuously develop will not work a forfeiture!”
Neither party contends the provisions of the lease are ambiguous, consequently, the rule with respect to the binding effect of express terms of a contract as applied in Anderson v. Rexfoad, 175 Kan. 676, 266 P. 2d 320, is applicable here. There it was said:
. . The established rule is that the intention of the parties and the meaning of a contract are to be deduced from the instrument where its terms are plain and unambiguous; that when the language is clear and unequivocal the meaning must be determined by its contents alone; that words cannot be read into a contract which import an intent wholly unexpressed when it was executed; and that the court may not make an agreement for the parties which they did not make for themselves (See West’s Kansas Digest, Contracts, § 143; Hatcher’s Kansas Digest [Rev. Ed.], Contracts, §40). . . .” (l. c. 679.)
When analyzed, the terms of the quoted provisions of the lease are express, clear and unequivocal, and we find nothing elsewhere in the lease conflicting with them. It follows as a logical result that the language used in such provisions must be given its plain and ordinary meaning without resort to further rules of construction. When this is done, we conclude it means exactly what it says, i. e., that in the event the lessee fails to produce sufficiently so that the royalties amount to $100 in one year, then and in that event, the lessee agrees to pay the lessor the sum of $100 as rental, and, that the lease was to remain in force for a term of five years and as long thereafter as production is had from said lands.
It is well settled in this state that the law applicable to oil and gas leases applies with equal force to mineral leases of the character here under consideration (Ratcliff v. Guoinlock, 136 Kan. 149, 12 P. 2d 798; Meeds v. Wells, 146 Kan. 609, 73 P. 2d 12; Wilson v. Holm, 164 Kan. 229, 236, 188 P. 2d 899). In Ratcliff v. Guoinlock, supra, it was held:
“Where a lease of real estate for the production of clay contained the following clause;
“ ‘It is agreed that this lease shall remain in force for a term of one year from this date and as long thereafter as clays or earths are mined and produced from said lands by lessee as hereinafter provided,’ there must be actual production of clay within the year in order to extend the term of the lease. Mere exploratory activity is not sufficient.”
In the opinion it was said:
“. . . This court has held that in leases for the purpose of producing oil or gas, where there was a clause in the lease similar to the one under consideration here, it was necessary that there should be actual production of oil and gas, not merely exploration activities in order to extend the term of the lease. (See Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47; Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Webb v. Croft, 120 Kan. 654, 244 Pac. 1033.)
“There appears to be no good reason why there should be a different rule where the lease contains the same provision but is for the production of clay.” (1. c. 152.)
The provision dealing with the payment of royalties at per ton and of a minimum l-ental payment in the event of insufficiency of production, if not expressly, then by implication, covenants for the reasonable development of the lease during the primary term (Webb v. Crop, 120 Kan. 654, 244 Pac. 1033; Hinshaw v. Smith, 131 Kan. 351, 291 Pac. 774; Christiansen v. Virginia Drilling Co., 170 Kan. 355, 226 P. 2d 263) since it was expressly provided that if the lessee fails to produce sufficiently in any one year to require a royalty payment of $100, the lessee was to pay the landowners $100 as rental. But, no provision was made for a minimum rental payment in the event of insufficiency of production following the expiration of the primary term — on the contrary, it was expressly provided that the lease continue as long thereafter as production was had. Clearly, that provision contemplated actual continuous production to extend the lease, otherwise the phrase “as long thereafter as production is had” becomes meaningless. The purpose of the “thereafter” clause was to prescribe conditions which must exist at the end of the primary term and continue thereafter, and it required that production be had from the land to extend the lease (Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, 354, 240 P. 2d 465; Baker v. Huffman, 176 Kan. 554, 557, 271 P. 2d 276). No rock was quarried after the late summer of 1953 and the lease terminated when production ceased at that time. The effect of lessee’s contention would be to disregard the plain and unequivocal terms of the lease that it continue as long as production was had from the land and would permit him to hold the land in perpetuity by an annual minimum rental payment of $100. This construction of the lease would do violence to its plain and unambiguous terms and amount to a rewriting of the lease by the court.
It would serve no useful purpose to detail the evidence with respect to the cessation of production by the lessee or his assigns, but suffice it to say there was substantial competent evidence to support the district court’s finding that there was no production of the lease after late summer of 1953, and for the years 1954 and 1955. Since the five year primary term of the lease had expired and inasmuch as it was to continue as long thereafter as production was had from the land, the judgment canceling the lease, under the conditions and circumstances presented by this record, was fully justified (Warner v. Oil & Gas Co., 114 Kan. 118, 217 Pac. 288; Bundy v. Ahrens, 115 Kan. 818, 224 Pac. 899; Tate v. Stanolind Oil & Gas Co., supra), and the district court did not err in ordering full payment of the award to the landowners.
The judgment is affirmed.
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The opinion of the court was delivered by
Hall, J.:
This is a condemnation appeal.
The Kansas Turnpike Authority instituted an eminent domain proceeding by virtue of its authority under the provisions of G. S. 1949, 26-102, et seq., as authorized by G. S. 1955 Supp., 68-2006. The proceeding involved several tracts of land including the three tracts in this appeal.
The three tracts of land involved in this appeal were owned by the appellee Ora Ethel Moore, subject to a lease to Perry Jones for the production of limestone products and road rock and the farm tenancy of Raymond G. Rriggs. The entire unit contained 160 acres from which the condemnation by the appellant Kansas Turnpike Authority amounted to a taking of 14.73 acres.
Appraisers were appointed by the district court who made their report of appraisement.
Thereafter, and within the time provided by statute, Ora Ethel Moore and Perry Jones each filed separate notices of appeal. Like wise, the Kansas Turnpike Authority filed its separate notice of appeal. No other appeals were taken by any other party.
In due course, the district court notified the Kansas Turnpike Authority and Ora Ethel Moore that the Ora Ethel Moore appeal was set for trial on January 12, 1956. No mention was made concerning the Perry Jones appeal.
The Kansas Turnpike Authority then filed a motion for an order assigning for trial its appeal in its entirety and assigning as a single action the question of the sufficiency of the award including the issues raised both by Ora Ethel Moore and Perry Jones in their appeals. In other words, the Kansas Turnpike Authority moved to consolidate as a matter of law, and not discretion, the Moore and Jones appeals into one trial.
The motion was heard and overruled by the court. The court made the following order.
"It Is, Therefore, Considered, Ordered and Adjudged by the Court that the appeal of Kansas Turnpike Authority be tried at the same time as the appeal of Ora Ethel Moore and that the appeal of Perry Jones be heard separately.”
The case was tried to a jury with Ora Ethel Moore and the Kansas Turnpike Authority as the only parties to the suit. At the conclusion of the trial the jury returned a verdict in favor of the appellee Ora Ethel Moore for the sum of $4,015.22, being $1,473.00 for the land taken and $2,532.22 for damage to the remainder. The Kansas Turnpike Authority filed a motion for new trial assigning as particular error the order of the court overruling its motion for trial of the action on its appeal in its entirety. The motion for new trial was overruled. Appeal was then taken to this court.
Appellant makes three specification of errors but in his brief and oral argument stated:
“The sole question involved is ‘Does an appeal to the District Court from an appraisement in an eminent domain proceeding bring to the District Court in its entirety the question of the sufficiency of the award to be tried in a single action as to all of the parties?’ ”
Appellee and cross appellant agree that this is the question involved in appellant’s appeal but raise this additional question on cross appeal:
“On the cross appeal of Ora Ethel Moore: Did the Court erroneously limit the cross examination of the court appointed appraisers where they testified to different values at the trial?”
Appellant urges this court to declare as a matter of substantive law that under the provisions of the eminent domain statutes (G. S. 1949, 26-101, et seq., as amended by G. S. 1955 Supp., 26-102) an appeal to the district court brings to that court a single action to be tried as such, without separating such action into as many separate actions as there are parties interested in the particular tract involved in the appeal.
In support of his position appellant cites the following authorities: Bogart v. United States, 169 F. 2d 210; Carlock v. United States, 53 F. 2d 926; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S. W. 2d 600; Dye v. Railroad Co., 77 Kan. 488, 94 Pac. 785; Federal Land Bank v. State Highway Comm., 150 Kan. 187, 92 P. 2d 72; G. S. 1949, 26-101; K. & C. P. Rly. Co. v. Phipps, 4 Kan. App. 252, 45 Pac. 926; Kohl Et Al. v. United States, 91 U. S. 367, 23 L. ed. 449; Meadows v. United States, 144 F. 2d 751; Newton Trust Co. v. Commissioner of Internal Revenue, 160 F. 2d 175; Reiter v. State Highway Commission, 177 Kan. 683, 281 P. 2d 1080; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S. W. 2d 80, 69 A. L. R. 1256; State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480.
The rule is also stated in 18 Am. Jur., Eminent Domain, § 316:
“Where the law secures a separate trial to ‘the owner or owners of each separate parcel,’ the court is not required to allow a separate trial to each owner of an estate or interest in each parcel. Thus, it is not contemplated that the lessee shall be given a trial separate and apart from the lessor.”
These authorities are very persuasive. It is clear from the Kansas cases particularly the earlier ones that while this court never adopted the substantive rule of law advocated by appellant it came very close to it.
In Federal Land Bank v. State Highway Comm., supra, the court said:
“. . . There is nothing in that statute which indicates or leads to the conclusion that as to a particular tract of ground the petitioner might appeal as to the lienholder and not the landowner, or vice versa, or that the lienholder could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the lien-holder. The statement is that if any one of the three appeal, an action shall be docketed and tried. The statute provides its own procedure up to the point where the appeal is perfected. When that has been accomplished ‘an action shall be docketed and tried the same as other actions.’ We are of opinion that under the statute there is and can be no separation as between parties. Whenever an appeal is taken, either by the petitioner or by the landowner or by a lienholder, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to this court. . . .”
The nature of the issue on such appeal is also referred to in a later case where this court said in State Highway Commission v. Weiss, supra:
“The statute (G. S. 1947 Supp. 26-102), under which that appeal was taken, provides that if the petitioner shall be dissatisfied with the appraisement he shall, within thirty days, file a written notice of appeal with the clerk of the district court, whereupon it is to be docketed and tried the same as other actions. The question to be determined in such appeal is the amount of compensation or damages, if any, to be awarded on account of the appropriation by the condemnor of the property in question. . . .”
Our Court also has stated this rule in Dye v. Railroad Co., supra.
“. . . Apparently the proceedings were conducted in compliance with the statute; the land thereby became vested in the railroad company, and the money awarded as damages was transferred to the owner or owners of the land taken. Any dissatisfied owner might have appealed from the award of the commissioners to the district court, where tire amount of damages could have been submitted to a jury. The plaintiff in error exercised this right. In such cases the owners and all parties having an interest in the land must look to the damages, as finally allowed, for compensation, as such damages, so far as the landowners are concerned, take the place of the land appropriated. . . .” (pp. 490, 491.)
Also:
“. . . It seems eminently just and proper that the rights of all parties interested in this fund should have been determined in the same proceeding, and as speedily as possible. . . .” (p. 492.)
Our Court has denied the right to show separately the value of mineral interests in Reiter v. State Highway Commission, supra:
"In condemnation proceedings, sand and gravel in the land are considered part of the realty and are not to be valued separate from the value of the land as a whole.” (Syl. 2.)
“Where the land taken contains valuable deposits of sand, gravel or other valuable deposits, the measure of compensation is the market value of the land with the deposits in it, and the value of the minerals cannot be shown separately.” (Syl. 5.)
The “single action rule” is well established in some jurisdictions. A leading case is Kohl Et Al v. United States, supra:
“The second assignment of error is, that the Circuit Court refused the demand of the defendants below, now plaintiffs in error, for a separate trial of the value of their estate in the property. They were lessees of one of the parcels sought to be taken, and they demanded a separate trial of the value of their interest; but the court overruled their demand, and required that the jury should appraise the value of the lot or parcel, and that tlie lessees should in the same trial try the value of their leasehold estate therein. In directing the course of the trial, the court required the lessor and the lessees each separately to state the nature of their estates to the jury, the lessor to offer his testimony separately, and the lessees theirs, and then the government to answer the testimony of the lessor and the lessees; and the court instructed the jury to find and return separately the value of the estates of the lessor and the lessees. It is of this that the lessees complain. They contend, that whether the proceeding is to be treated as founded on the national right of eminent domain, or on that of the State, its consent having been given by the enactment of the State legislature of Feb. 15, 1873 (70 Ohio Laws, 36, sect. 1), it was required to conform to the practice and proceedings in the courts of the State in like cases. This requirement, it is said, was made by the act of Congress of June 1, 1872. 17 Stat. 522. But, admitting that the court was bound to conform to the practice and proceedings in the State courts in like cases, we do not perceive that any error was committed. Under the laws of Ohio, it was regular to institute a joint proceeding against all the owners of lots proposed to be taken. (Giesy v. C. W & T. R. R. Co., 4 Ohio St. 308); but the eighth section of the State statute gave ‘the owner or owners of each separate parcel’ the right to a separate trial. In such a case, therefore, a separate trial is the mode of proceeding in the State courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from the trial of the issues between the government and the owners of other parcels. It hath this extent; no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. . . .” (p. 377.)
See, also, the following cases: Bogart v. United States, supra; Newton Trust Co. v. Commissioner of Internal Revenue, supra; Carlock v. United States, supra; City of St. Louis v. Rossi, supra; Meadows v. United States, supra; State ex rel., McCaskill v. Hall, supra.
The reason for the rules followed in these cases is that an eminent domain proceeding is one in rem. Some early ICansas cases followed that principle.
“Condemnation proceedings under the statutes are essentially proceedings in rem, . . .” (K. & C. P. Rly. Co. v. Phipps, 4 Kan. App. 252, Syl. 2, 45 Pac. 926.)
While the decisions of this court in the past have indicated a proximity to follow the “single action rule” it has not actually done so and its recent decisions are in the other direction following an equally respectable line of authority.
The Kansas condemnation statute may also be distinguished from some jurisdictions following the “single action rule.” G. S. 1949, 26-101, et seq., as amended by G. S. 1955 Supp., 26-102 provides as follows:
“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: . . .” (Emphasis ours.)
The use of the disjunctive in the foregoing statute indicates the legislative intent that each owner of an interest in property may have a separate trial for the value of his property.
In the latter part of the appeal statute, G. S. 1955 Supp., 26-102, we find additional language which is indicative of the legislative intent, as follows:
“. . . 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. The acceptance by the owner, lien 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.” (Emphasis ours.)
The other line of authority is well stated by Justice Holmes in Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. ed. 725, 30 S. Ct. 459:
“. . . But the Constitution does not require a disregard of the mode of ownership — of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is what has the owner lost, not what has the taker gained. . . .”
This rule of the law is followed through a line of subsequent decisions and authorities. See United States v. Certain Parcels of Land, 43 F. Supp. 687; Duckett & Co. v. United States, 266. U. S. 149, 69 L. ed. 216, 45 S. Ct. 38; and 69 A. L. R. 1263.
In 29 C. J. S. Eminent Domain § 279:
“According to some authorities, where two or more persons have distinct interests or estates in any particular parcel of land, the value of each interest should be separately assessed, . . . The making of separate awards, rather than the making of a single award and the determination by the court of the relative rights of the interested parties, is proper and sufficient where there is no dispute as to ownership or as to the different interests in the property. . . .”
In Nichols Em. Dom. V. 6 § 24.4:
“The joinder or consolidation of condemnation proceedings is ordinarily dependent upon the provisions of the statutes under which they are authorized. Generally, all persons whose property is taken or injured may be joined in one proceeding. However, where the damages arise from separate takings or injuries which are not part of one project such joinder is improper.
“Where, by statute the owner or owners of each separate parcel is assured of a separate trial, it is not necessary to afford a separate trial to the owner of each separate estate or interest in such parcel.”
And in State v. Platte Valley Public Power and Irrigation District, 147 Neb. 289, 23 N. W. 2d 300, 166 A. L. R. 1196:
“Generally the courts have approached the problem from the standpoint of determining the value of that which the owner has lost rather than that which the condemnor has gained. In Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. Ed. 725, 30 S. Ct. 459, the Supreme Court of the United States said: ‘But the Constitution does not require a disregard of the mode of ownership, — of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires than an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is what has the owner lost, not what has the taker gained. We regard it as entirely plain that the petitioners were not entitled as a matter of law to have the damages estimated as if the land was the sole property of one owner, . . .’ That the court has more recently said: ‘It is . . . tlie owner’s loss, not the taker’s gain, which is the measure of compensation for the property taken . . .’ United States ex rel. T. V. A. v. Powelson, 319 US 266, 87 L. Ed. 1390, 63 S. Ct. 1047. In the Boston case the market value of the undivided fee was much greater than the value of the separate interests.” (p. 306.)
Also at page 1210 (166 A. L. R.) the court said:
“The rule requiring just compensation to each owner for that which is taken must be applied in all instances under our Constitution. ‘. . . any rule that may be laid down must itself be measured by the rule given in the Constitution, and any rule that so limits the damages in such case as that the result will be in fact less than just compensation for the injury suffered falls short of the constitutional measure.’ City of St. Louis v. Brown, 155 Mo. 545, 56 SW 298, 302. It seems to us also that those courts which have undertaken to limit the total award to the value of the unencumbered whole have overlooked the factual situation that exists in many of these cases where there is a personal property right taken or damaged, in addition to the real property taken or damaged. Obviously, the value of the real property should not be the limit of the recovery in such cases.”
This court recognizes the separate interest of the owner of a leasehold estate and the right to a separate award of compensation. (Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009; State Highway Comm. v. Weiss, supra; State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850; and Miles v. City of Wichita, 175 Kan. 723, 267 P. 2d 943.)
We cannot accept appellant’s contention. In this jurisdiction the rule followed in consolidation of cases for trial is not one of substance but one of procedure. G. S. 1949, 60-765, provides:
“Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no cause be shown the said several actions shall be consolidated. The order for consolidation may be made by the court or by a judge thereof in vacation.”
One of the requirements of the consolidation statute is whether or not the actions could have been joined in the first instance. G. S. 1949, 60-601, provides:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of actions so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
Motions for consolidation under these statutes are in the sound discretion of the trial court. (Railway Co. v. Hart, 7 Kan. App. 550, 51 Pac. 933; Rice & Floyd v. Hodge Bros., 26 Kan. 164; and Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80.)
In the absence of any showing of abuse of discretion in refusing to consolidate these appeals for trial, the judgment of the district court will be affirmed. No abuse of discretion is shown here.
Appellee and cross appellant specify as error the ruling of the trial court limiting the cross-examination of the court appointed appraisers.
On the trial of this action appellant Kansas Turnpike Authority called the three court appointed appraisers as witnesses. These appraisers had previously filed their official appraisement and report.
The report appeared as follows:
“Land taken .................................. $1,841.25
All other Damages............................. 1,104.94
Total ...................................... $2,946.19”
At the trial the appraisers’ testimony was as follows:
“Fair and reasonable market value of the land acquired ..................................... $1,104.75
Difference between before and after taking values.. . 1,841.44
Total ...................................... $2,946.19”
Appellee and cross-appellant attempted to impeach the testimony of the witnesses on the basis of contradictory or inconsistent statements. The court sustained objection.
Roth parties cite the same case law in Searcy v. State Highway Comm., 145 Kan. 709, 67 P. 2d 534, where the court said:
“After the trial had been under way one of the commissioners who made the appraisement testified in behalf of the highway commission as to the fair market value of the land taken and the damages to the remainder. During his cross-examination he was asked and permitted to testify about the amount of the award. The highway commission objected to this and the objection was overruled. The commission urges here that this was error. The evidence should not have been admitted. The amount of the award made by the commissioners in a condemnation case is not admissible in evidence and it is not proper for a jury to be told the amount of it. In C. K. & N. Rly. Co. v. Broquet, 47 Kan. 571, 28 Pac. 717, the action was by a railway company to condemn land for a right of way. At the trial on appeal the trial court told tire jury what the amount of the award made by the commissioners was. This court held this was error, and said:
‘The award made by the commissioners was not admissible in evidence, and the court was not warranted in presenting the amount of the allowance as fact to the jury. When the appeal is taken, the case is tried de novo upon new evidence, and the award of the commissioners is no more competent than would be the former verdict of the jury upon an appeal from a justice of the peace to the district court. It is only the opinion of the commissioners as to the damages sustained, and the statement of the amount awarded by them is hearsay evidence, which is not admissible, whether stated by a witness or by the court in its charte.’ (p. 572.)
“See, also, State v. Brown (Mo.), 95 S. W. 2d 661, and A., B. & A. Railroad Co. v. Smith, 132 Ga. 725, 64 S. E. 1073.
“The landowner points out that these questions were asked the witness on cross-examination after he had testified on direct examination as to his opinion on the market value of the land and were proper questions on cross-examination to test the credibility of the witness. In this connection it is pointed out that the trial court instructed the jury that this evidence should not be considered by it in determining the market value of the property. We hold that such evidence was not of such a nature that it was admissible for the purpose of testing the credibility of the witness. Had the witness at some other time said the land was worth some altogether different amount than he testified to, the questioning about this statement might have been permitted for the sake of attacking his credibility, but here he testified as to the same amount. . . .”
The court applied this rule in Case v. State Highway Comm., 156 Kan. 163, 131 P. 2d 696, where the witness testified the land was worth $70.00 an acre, but admitted on cross-examination that he had previously appraised it at $85.00 an acre. The court allowed the cross-examination and instructed the jury that this inconsistent statement would go to his credibility as a witness.
The question in this case is whether or not the testimony of the appraisers was in fact a different amount than the report of appraisement.
It will be observed from the above figures that the total amount did not differ. The record shows that in answer to the question as to whether a different value was set on the land, one of the witnesses testified: “I didn’t understand it that way. I will say, no,” and then in substance, “Frankly, I don’t think I did; it doesn’t appear that way in the record.”
In Gant v. Gas Service Co., 156 Kan. 685, 687, 135 P. 2d 533, the court said:
“The 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.”
Under these circumstances no prejudicial error being shown, the court did not abuse its discretion and its ruling was well within the rule of the Searcy case.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an order of the trial court sustaining appellee’s motion to quash the service of summons.
Summons was issued out of the district court of Labette county, sitting at Parsons, in a damage action for personal injuries. The pertinent part of the return of the sheriff of that county is as follows:
“Received this Summons on the 25 day of Jan 1956 at 1 o’clock P. M. and served same on 27th day of Jan 1956 by delivering a true copy thereof, with the endorsements .thereon duly certified, to within named defendant . . . as follows in said county: Served in person on O. L. Crain & Missouri-Kansas-Texas Railroad Company, a Corporation. . . .”
This summons return was originally dated on the 26th of January, 1956, but because O. L. Crain was out of town, as the sheriff’s affidavit showed, that date was erased and the following date, January 27th, was inserted when the sheriff was able to find O. L. Crain in his office, which had the word “Superintendent” printed on the door.
On January 27, 1956, the sheriff’s return was filed and, it was therein stated that he received the summons on January 25, 1956, and served it on the named defendant by delivering it to O. L. Crain personally since he was the chief officer, superintendent, and person in charge of the corporation’s offices in Parsons, Labette county; he certified he had been unable to find any other officer of the corporation in Labette county; he further certified that no certificate of appointment had been filed in the office of the clerk of the district court designating any person residing in Labette county on whom process and notice issued by any court of record could be served and that the company had never designated any person residing in Labette county on whom service of summons could be had.
Appellee filed its special appearance and moved to quash the service, which was heard by the trial court.
Testimony was introduced by a number of affidavits. The first was that of O. L. Crain to the effect that he was not the chief officer of appellee or the person having charge of the officers, or offices, of appellee in Parsons and thére was no such chief officer in Parsons. Next was the affidavit of Lloyd W. Jones which showed he was resident agent of appellee in charge of its registered office at Room 211 of appellee’s station building at Parsons and that the proper instruments so indicating had been filed and recorded in the office of the secretary of state and the register of deeds office of Labette county under G. S. 1949, 17-4406; 60-2518. Other documentary evidence was introduced to verify the matters above set out.
It is not controverted that the name of the resident agent, for the purpose of service, was never filed in the office of the clerk of the district court of Labette county, as required by G. S. 1949, 60-2519.
Another affidavit was that of Helen L. Watkins, who listened on an extension telephone to a conversation between appellant’s attorney and Lloyd W. Jones, attorney and purported resident agent for appellee, wherein appellant’s attorney asked Jones who appellee’s resident agent was, since there was no record in regard thereto filed in the office of the clerk of the district court. Jones’ answer, somewhat vague, was that he assumed O. L. Crain, the superintendent, would be appellee’s highest officer in Labette county.
In reply to Helen L. Watkins’ affidavit, Lloyd W. Jones made an affidavit in which he admitted the telephone conversation but controverted the portion where it was said he told appellant’s attorney that O. L. Crain was appellee’s highest officer. He stated instead that appellant’s attorney had assumed this fact and Jones did not deem it necessary to correct the erroneous presumption or conclusion.
O. L. Crain was called by appellant for cross-examination. His testimony showed that he was superintendent in the operating department of appellee, which was for the movement of trains; Crain was in charge of the depot, two claim departments, the legal department, the land and tax department, and the traffic department; he was directly under the vice-president and chief operating office in Dallas, Texas; his name appeared as superintendent on the stationery; he had no superior in Labette county.
Appellee then examined Crain and solicited answers to the effect that Crain did not have control over the mechanical, traffic, track, accounting, general claim or freight claim, land-tax, and legal departments; he was not appellee’s chief officer, cashier, treasurer, secretary, clerk, repair superintendent, freight agent, ticket seller, or stationkeeper — only part of which were under control of the Parsons offices.
On further examination Crain testified that his activities extended over Oklahoma, Kansas, and Missouri and everything north of the Red River.
Crain’s business card, introduced in evidence, read as follows:
“(M-K-T)
“(emblem)
“O. L. Crain
“Superintendent Parsons, Kansas
“Missouri-Kansas-Texas Lines”
In view of this record, the trial court sustained appellee’s motion to quash the service of summons and appellant appeals therefrom.
Appellee supplements the record by showing that the sheriff’s summons return contained in the fees schedule the following:
“Service and returns, first person...................... $.50
“Additional persons Second Return.................... $.75
“Mileage .......................................... $ . .
“Total Fees ..................................... $1.25”
Appellee claims this furnishes impetus to a contention that the return was not served on a day certain.
Since the trial court did not pinpoint any reason for its ruling in sustaining the motion to quash the service of summons on the special appearance of appellee, we must consider all issues raised by the parties.
The first question is whether the summons showed a return made by the sheriff on a day certain. We have examined the authorities cited and find them of little help. This record shows there were two documents executed by the officer respecting the service of summons and they were apparently filed at the same time in the office of the clerk of the district court by which office they were marked filed on January 27, 1956. The test seems to be whether the return provides sufficient evidence to give the court jurisdiction.
Generally speaking, the purpose of an officer’s return is to show that the command of a summons has been complied with. The return is merely evidence that the defendant has been notified to appear in court. The writing, or part of a writing, to which the officer signs his name when he returns the writ constitutes the return. (72 C. J. S., Process, § 90, p. 1128.) Appellee was notified that it had been sued and to appear in court so far as the writings which were signed by the sheriff are concerned and the court had jurisdiction of this phase of the case, but our inquiry does not end here.
The return day of the summons was on or before February 3, 1956, so that the sheriff still had approximately six days to make his return after January 27, 1956. The summons further provided that the answer date was February 23, 1956, so it is plain to be seen that defendant could not have been prejudiced in having its answer time cut down. It has been held by this court that a defendant could not be heard to complain where a summons had been served much nearer to the return day than the one here involved. (Clough v. McDonald, 18 Kan. 114; Lanoue v. McKinnon, 19 Kan. 408, 411; Swerdsfeger v. State, 21 Kan. 475.) The appellee, if otherwise properly served with summons, could not be impressive with a complaint on this score.
The next issue to which our attention is directed is whether Crain was a proper agent of the company to be served with summons. Generally, the agent served must represent the railroad with respect to the business which it does within the state where the action is commenced and such agent’s character and rank must be of the caliber to afford reasonable assurance that he will inform his company that process has been served on him. (74 C. J. S., Railroads, § 26 [c.] [3], p. 393.) A return of a similar character to that which we have here was entirely lacking in the authorities cited by appellee in support of its theory of the insufficiency of the service because the person served lacked capacity to receive such service. Representative of those cases are U. P. Rly. Co. v. Pillsbury, 29 Kan. 652, and Dickerson v. B. & M. R. Rld. Co., 43 Kan. 702, 703, 23 Pac. 936, in which service was made upon certain named individuals only as agent of the railroad company. This is no sufficient evidence of service on the railroad company. With this apparent difference between those cases and ours, we think it unnecessary to discuss them further.
Appellee dwells at length on cases, and an argument supported thereby, that an amendment to the return herein was not proper. We have no quarrel with those authorities but do not think they are applicable here. There were no such amendments attempted here as were set out in those authorities and they therefore presented entirely different situations.
Under the statutes already mentioned provision is made for service of process upon a railroad company and where no process agent has been designated, service has been held to be good on a named person when he is in charge of a depot or is a ticket agent of the company (M. K. & T. Railway Co. v. Crowe, 9 Kan. 496) and again when he is a section foreman where the court considered him to be a superintendent of repairs in a county where the railroad traversed diagonally across a small corner of the county. (St. L. & S. F. Rly. Co. v. DeFord, Sheriff, 38 Kan. 299, 300, 16 Pac. 442.)
In Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136, where a notice was required to be served on the railroad company, at page 573 we find an interesting discussion concerning the necessity of service upon a designated process agent and it is stated that service upon a local superintendent or other agents is unavailing unless it is made to appear that no such process agent has been designated. The alternative of leaving the process with the agent in charge of a station or depot is then discussed. The court there held that where a record is silent as to designation of a process agent, a notice served in due time on an agent of a railway company in charge of a railway station is compliance with the alternative provision of the statute (G. S. 1949, 60-2520) and such service is good.
We think there can be only one conclusion in this case and it is that the record shows a total failure on the part of the railroad company to file its designation of a process agent in the office of the clerk of the district court as required by statute. Thus it cannot now contend that notice of its designation of a process agent was given to the appellant, or anyone else, in the manner prescribed by law. The record shows Crain, as superintendent, was a proper agent to afford reasonable assurance that he would inform the railroad company that the process had been served upon him.
Other points were raised in the record but we can see no good purpose to be served by burdening this opinion therewith. Likewise, other cases were cited by both parties but a review of them here would be superfluous because they are either different or are quite distinguishable from the situation now before us.
Appellee stresses the fact that special attention should be given to the ruling of the trial court, and we recognize that we have said this many times in the past, but a ruling of a trial court cannot be considered as conclusive because it is this court’s prerogative to determine the law of a case wherein an appeal is perfected.
The order entered by the trial court sustaining the motion to quash the service of summons was not proper and it should be reversed.
It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
This is a replevin action to recover possession of a diamond or its value. After the jury returned a general verdict for the plaintiff the court granted a new trial. Plaintiff appeals from that order and defendant cross-appeals from an order overruling his motion for a directed verdict at the conclusion of all the evidence.
The pleadings are not long and in such form they disclose the general facts relied on by the parties to support their respective claims. For that reason they will be quoted at length.
Omitting formal averments, allegations identifying the parties and the prayer, the amended petition reads:
“That on the 20th day of May, 1953, plaintiff was the owner of a diamond stone of at least two karat weight, the same being a flawless stone of fine color with a perfect cut, having at that time, a retail value of approximaely $4,000.00.
“On that date plaintiff delivered said stone to the defendant, the mounting in which it then was and a new platinum mounting. The new platinum mounting was of sufficient size for the setting of said stone in the same and employed the defendant to set the stone in the new platinum mounting. That on approximately the 23rd day of May, 1953, the defendant delivered to this plaintiff a diamond stone set in the new mounting, but that said diamond as set and delivered to this plaintiff by the defendant was not the diamond stone delivered to the defendant by plaintiff, but was a diamond of a weight not to exceed 1.6 karats and which was of off color. That the diamond stone delivered to this plaintiff by the defendant was only of a reasonable value of $1800.00.
“That the defendant has never, at any time, since said date delivered to this plaintiff the diamond stone delivered to him on May 20, 1953, for re-setting. That plaintiff is entitled to possession of said diamond and did, on November 3, 1954, by and through her attorney, make an oral demand for the return of said stone.
“Plaintiff alleges that said stone is now in the possession of the defendant. Plaintiff has never been advised by tire defendant that 'he has ever parted with the possession of said two karat diamond stone but has failed, neglected and refused to deliver to plaintiff the diamond stone delivered to him by plaintiff on May 20, 1953. That plaintiff is entitled to the return of said diamond stone to her.”
The answer contains a general denial, a prayer that plaintiff be denied all relief sought in her amended petition, and an additional paragraph alleging:
. . that on or about the 20th day of May, 1953, plaintiff delivered to defendant a diamond stone to be set in a mounting; that defendant mounted said identical stone in said plaintiff’s identical mounting, made her a reasonable charge therefor and on or about May 23rd, 1953, re-delivered back to plaintiff said identical stone and mounting that she previously brought to him.”
With issues joined as related the cause came on for trial by a jury. Thereupon, after opening statements by counsel, plaintiff adduced her evidence to which defendant demurred on the ground it failed to prove a cause of action. When this demurrer was overruled defendant adduced his evidence and rested. Plaintiff followed with her rebuttal evidence and rested. At this point, with evidence of the parties supporting claims made in their respective pleadings, defendant moved to reopen his case for the purpose of producing one more witness he claimed to have discovered the night before. This motion was denied. Defendant then moved the court for a directed verdict on all the evidence. After denial of this motion the court instructed the jury in writing, refusing to give one instruction requested by defendant. Thereupon the cause was submitted to the jury which, in due time, returned into open court its general verdict in favor of plaintiff and against defendant, along with its answers to two special questions submitted by the court. These answers were to the effect that defendant had not returned the same stone she had left with him and that the value of such stone at the time it was delivered to defendant was $3,500. Defendant then moved to set aside the answers to special questions and for judgment non obstante veredicto.
Following the foregoing proceedings defendant filed a motion for a new trial on grounds (1) of abuse of discretion and surprise which ordinary prudence could not have guarded against resulting in his not being afforded an opportunity to present his evidence and be heard fully on the merits of the cause; (2) erroneous rulings and instructions of the court; (3) the verdict was given under the influence of passion and prejudice; (4) the verdict was contrary to the evidence; (5) newly discovered evidence which could not, with reasonable diligence, have been discovered and produced at the trial; and (6) the verdict was procured by the corruption of the plaintiff. Defendant asserts, and plaintiff does not deny, that upon the hearing of the motion for a new trial he presented and argued all grounds of his motion for a new trial. At the close of all arguments on the motion the court granted a new trial generally and set aside the verdict. Following that announcement counsel for plaintiff inquired of the court if it would clarify its reason for that action. The transcript, which we have procured and examined to the end there may be no mistake about it, discloses that in response to such inquiry the court said “Well, for the reasons presented today.” (Emphasis supplied.) Thereafter, as has been previously indicated, plaintiff gave notice that she was appealing, from the order granting a new trial and defendant that he was appealing from the order overruling his motion for a directed verdict at the conclusion of all the evidence.
The fundamental premise on which appellant bases her claim the trial court erred in sustaining the motion for a new trial is that the specific ground on which the new trial was granted was newly discovered evidence. If this were true there might be merit to subsequent contentions that the evidence offered by appellee on the hearing of the motion was not sufficient to warrant a ruling made on that basis. In any event we have no quarrel with the rule (See, e. g., Bernsden v. Johnson, 174 Kan. 230, 255 P. 2d 1033; Bishop v. Huffman, 175 Kan. 270, 272, 262 P. 2d 948) that where a trial court grants a new trial upon a specific legal ground this court will examine the ground upon which the new trial was granted and determine whether it was legally sufficient, if it is in as good a position as was the trial court to examine it. The trouble from appellant’s standpoint is that after a careful examination of the record we are unable to agree with her as to the basis for the trial court’s ruling. Heretofore we have noted that appellant has made no denial of appellee’s assertions that the motion for a new trial was presented and argued on all of its grounds, directed attention to the fact that when making its initial ruling the trial court sustained the motion generally, and pointed out the indisputable record is that when it was asked to state its reason for the ruling it answered “Well, for the reasons presented today.” In the face of such a situation we believe appellant’s contention the trial court committed reversible error in sustaining the motion falls squarely within the following rules of universal application in this jurisdiction (1) that when a trial court sets aside a verdict and grants a new trial generally without specifying any reasons therefor the supreme court has no means of passing upon the sufficiency of the grounds on which its decision is based and hence cannot hold that its action with respect thereto amounts to an abuse of judicial discretion or constitutes reversible error (Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440; Babb v. City of Wichita, 172 Kan. 416, 241 P. 2d 755; Krehbiel v. Milford, 173 Kan. 642, 250 P. 2d 769); (2) that an order of a trial court allowing a motion for a new trial will not be reversed unless this court is satisfied its action was wholly unwarranted and clearly amounts to abuse of discretion (Simon v. Simon, 69 Kan. 746, 77 Pac. 571; Schroeder v. Texas Co., 169 Kan. 607, 609, 219 P. 2d 1063); (3) that the granting of the motion for a new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error on appellate review unless it can be said the party complaining thereof has clearly established error with respect to some pure, simple and unmixed question of law (Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518; McCauley v. A. T. & S. F. Rld. Co., 70 Kan. 895, 79 Pac. 671; Railway Co. v. Fields, 73 Kan. 375, 85 Pac. 412; Cronk v. Frazier, 86 Kan. 879, 122 Pac. 893; Rowell v. Gas Co., 81 Kan. 392, 396, 105 Pac. 691; Bateman v. Roller, supra; Schroeder v. Texas Co., 609, supra.); and cannot be upheld.
In connection with appellee’s cross-appeal it is urged the trial court erred in overruling his motion for a directed verdict at the conclusion of all the evidence; in denying his motion to reopen the case for further evidence at the conclusion of all testimony; in refusing to give his requested instruction; and in overruling his motion for judgment non obstante. The difficulty from his standpoint is that these are all trial errors and, since no final judgment has been rendered, are not appealable.
Long ago in Commander-Larabee Milling Co. v. McBride, 152 Kan. 709, 107 P. 2d 668, we said:
“The ordinary effect of an order of a court granting a new trial is to set aside the verdict, special findings, if any, and all trial rulings, and leave the action for trial on the issues framed by the pleadings as though there had not been a trial. (46 C. J. 436; McCrum v. Corby, 15 Kan. 112; Cahn v. Tootle, 58 Kan. 260, 48 Pac. 919; Johnston v. Lanter, 92 Kan. 257, 139 Pac. 1031; Peoples Nat’l Bank v. Casey, 127 Kan. 581, 274 Pac. 286; Foust v. Mills, 128 Kan. 471, 278 Pac. 745; Lapo v. Naillieux, 139 Kan. 23, 29 P. 2d 1093.)” (p. 711.)
For later decisions of like import see Palmer v. Julian, 161 Kan. 619, 170 P. 2d 813; Moon v. Lord, 172 Kan. 139, 140, 141, 238 P. 2d 506; Nicholas v. Latham, 179 Kan. 348, 353, 295 P. 2d 631.
Finally appellee contends the trial court erred in overruling his demurrer to appellant’s evidence. The short and simple answer to this contention is that this ruling is not subject to appellate review because the record discloses there is no cross-appeal from that ruling. (See Giltner v. Stephens, 163 Kan. 37, 180 P. 2d 288; McComb v. Statnolind Oil and Gas Co., 164 Kan. 1, 186 P. 2d 574.)
We find nothing in this record to warrant a conclusion the trial court committed reversible error with respect to any of the matters relied on by the parties. Therefore the judgment must be affirmed in its entirety.
It is so ordered.
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The opinion of the court was delivered by
Weetz, J.:
This was an action to recover damages resulting from the alleged malpractice of a physician in the diagnosis and treatment of his patient. Appellant, Kenneth V. Dill, the patient, will hereinafter be referred to as plaintiff, and appellee, Anthony W. Miles, the physician and surgeon, as defendant.
The petition contains four causes of action, carefully detailed, and consists of thirty-three paragraphs. The first cause alleges a negligent decision to employ improper diagnostic procedures and a departure from recognized medical principles; the second alleges defendant was careless, unskillful and negligent in the performance of those procedures; the third alleges plaintiff was not told about his condition and the facts were concealed by defendant, who then abandoned treatment of plaintiff; the fourth seeks to recover punitive damages based upon the acts of negligence contained in the first three causes of action, alleging that such acts were willful and wanton and constituted an utter disregard for the plaintiff’s health, condition and welfare.
From an order of the trial court sustaining defendant’s demurrer to the fourth cause of action, plaintiff appeals.
Defendant concedes that the allegations contained in the first three causes of action state facts sufficient to constitute a cause of action for malpractice or negligence, but that such acts were neither gross, willful, wanton nor in utter disregard of plaintiff’s health, condition and welfare, and, therefore, no action can be maintained for punitive damages.
We do not recognize a demurrer to a part of a cause of action, but inasmuch as the trial court sustained defendant’s pleading entitled “Demurrer to Plaintiff’s Fourth Cause of Action,” we will, under the rule of Krey v. Schmidt, 170 Kan. 86, 223 P. 2d 1015, treat it as a motion to strike. The sole question is whether the facts as alleged in the petition are sufficient to constitute wanton negligence upon which plaintiff can predicate a cause of action for punitive damages.
Omitting the formal parts in the petition, the facts, insofar as pertinent to the question involved, are as follows:'
Plaintiff, after consultation with defendant regarding diagnosis and treatment of a condition known as thrombophlebitis in the lower calf of his left leg, was advised to and did enter a hospital, where defendant attempted to perform an aortogram on plaintiff’s body. Upon regaining consciousness from the general anesthetic, plaintiff was informed by defendant that the aortogram had not been performed, that the aorta had not been located or penetrated, and that nothing had been accomplished in the operating room to aid defendant in examining, diagnosing or determining the nature and extent of plaintiff’s ailment. Plaintiff further states that immediately upon regaining consciousness he began experiencing extreme, excruciating and nauseous pain, and paralytic sensations in the lower extremities of his body from the first lumbar to his toes, accompanied by a paralysis of his bladder and inability to void. Although he asked defendant for diagnosis, relief and treatment of these conditions, defendent did nothing whatsoever. Plaintiff’s condition grew progressively worse in the next seventy-two hours, but defendant still did nothing to diagnose, relieve or treat such illness, did not advise plaintiff of the seriousness of his condition, did not advise calling in another physician and surgeon, and finally withdrew from the case. Plaintiff further alleges that as a result of such neglect he sustained the following injuries: Contusions, abrasions and lacerations of his back in the general vicinity of his first lumbar vertebra; paralysis of both legs; paralysis and loss of control of his bowels; paralysis and loss of control of his bladder; adhesive arachnoiditis with paraplegia; sexual impotency; extreme arthritis; injuries to his spinal cord in the first lumbar area; permanent damage to his physical and nervous system; great body weakness.
Plaintiff states that he was unable to walk for a period of one year and can only walk now with the assistance of canes or crutches, and that the pain he suffers cannot be relieved with drugs; that his injuries are permanent and progressive; and that since the date of the attempted aortogram he has been unable to perform any gainful employment and will be unable to do so in the future.
No useful purpose would be gained by setting out in detail all of the facts alleged in the petition upon which plaintiff relies as constituting willful and wanton negligence. Summarized, it may be stated that a part of the acts of negligence of defendant was in advising the use of an aortogram for diagnosis when he knew or should have known it was not the safest and most recognized method; in holding himself out to plaintiff to be a specialist in Trans-Lumbar Aortography and, as such, attempting an aortogram without first performing an allergy test and completing a pre-operative x-ray; in making numerous insertions of an 18-gauge needle (six inches long), without aspirating same, with accompanying, and repeated injections of a chemical dye solution into plaintiff’s spinal cavity, spinal column, bloodstream and body, this being done in such a manner that the aorta was never located and the blood vessels around plaintiff’s spinal cord were ruptured. It was further alleged that in the seventy-two hours following the attempted aortogram plaintiff’s condition became quite critical; that he lost control of his bowels, bladder and lower extremities to the extent that he could not move his body or control any organs or limbs from the first lumbar vertebra to his toes; that plaintiff inquired of defendant the nature of his malady and requested diagnosis, treatment and relief from defendant; that defendant knew or should have known that plaintiff’s condition was serious and critical in nature, but, notwithstanding the apparent critical condition, defendant did nothing to relieve, treat or diagnose plaintiff’s condition, and that de fendant negligently concealed from plaintiff the fact of the apparent injuries and infections of his lower extremities; that defendant willfully, wantonly and negligently represented to plaintiff that his condition was not a result of the attempted aortogram and was not serious in nature; that, in fact, plaintiff’s condition was serious in nature and represented a continuing and progressive threat to his state of health and general welfare, and it was the duty of defendant to exercise the skill and care usually exercised by experts and specialists in the field of Trans-Lumbar Aortography and Internal Medicine, to inform the plaintiff of defendant’s lack of skill, knowledge and ability, and to advise, recommend and suggest the services of other physicians and surgeons, which he failed to do; that the facts with relation to plaintiff’s grave condition were concealed by defendant, and that he represented to the plaintiff that his condition was not serious in nature, and did thereupon abandon the treatment of plaintiff without any cause whatsoever.
The general rule to be used in determining whether the facts of a given case constitute gross and wanton negligence has long been settled in this jurisdiction, our last declaration appearing in Long v. Foley, 180 Kan. 83, 89, 299 P. 2d 63, wherein, in quoting from Bailey v. Resner, 168 Kan. 439, 442, 214 P. 2d 323, it was stated:
“. . . a wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necessarily so; it is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.”
In Frazier v. Cities Service Oil Co., 159 Kan. 655, 666, 157 P. 2d 822, we stated:
“. . . it may be concluded that as to injuries inflicted, wanton conduct or wantonness comes between negligence on the one hand and willful or malicious misconduct on the other; that it is more than negligence and less than willfulness, and to constitute wantonness the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure another, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.”
For other recent decisions where the rules above quoted are adhered to and pertinent portions thereof stated in one form or another, see In re Estate of Kerschen, 176 Kan. 226, 269 P. 2d 1033; MacDougall v. Walthall, 174 Kan. 663, 257 P. 2d 1107; Hanson v. Swain, 172 Kan. 105, 238 P. 2d 517; In re Estate of Bisoni, 171 Kan. 631, 237 P. 2d 404; Fyne v. Emmett, 171 Kan. 383, 233 P. 2d 496; In re Estate of Wright, 170 Kan. 600, 228 P. 2d 911.
When the allegations of plaintiff’s petition are tested by the foregoing rules of law, we are compelled to hold that the facts as alleged are sufficient to show that defendant’s conscious conduct indicated a reckless disregard and complete indifference and unconcern for the probable consequences of his alleged wrongful acts and were sufficient to charge him with wanton negligence upon which plaintiff could predicate his fourth cause of action for punitive damages.
The judgment of the trial court is reversed and the case is remanded with instructions to reinstate the fourth cause of action.
It is so ordered.
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The opinion of the court was delivered by
Mason, J.:
Coifeyville is a city of the first class, having less than 18,000 population, which has adopted the commission form of government. At the primary election held August 3, 1920, for the nomination of city officers, George R. Snelling received the highest vote for mayor, and he and the person having the next highest vote became the nominees to be voted for at the election to be held November 2. On October 12, Snelling undertook to cause his name to be withdrawn by filing with the city clerk 'a request to that effect. Petitions were then presented to the clerk, one of them being signed by more than a third of the persons who had voted for Snelling at the primary, asking that the name of Ralph P. Brown be substituted for that of Snelling on the ballot about to be printed. The clerk, being unable to find any warrant in the statute for such action, declined to omit the name of Snelling or to insert that of Brown, and in order to determine the matter Brown brought this action against the clerk asking an order requiring it.
The primary election in cities having the commission form of government is conducted upon a different basis from any other. Party politics has no part in it. It is an elimination contest in which the two candidates having the highest vote for each office become the nominees between whom the voters make choice at the election. The provisions concerning such an election in cities of the first class are made in the act relating to commission form of government in such cities (Gen. Stat. 1915, § 1468) and contain no reference to the withdrawal of a candidate or the filling of a vacancy. The section just cited has a provision, however, that the general primary law (Gen. Stat. 1915, ch. 33, art. 4) shall govern the conduct of the city primary so far as applicable, and the general primary law refers to the statutes concerning elections, making them applicable to primaries where no inconsistency would result. (Gen. Stat. 1915, § 4183.)
The Australian ballot law provides for the withdrawal of a person who has been nominated for an office (Gen. Stat. 1915, § 4202) and for the filling of a vacancy caused in that or any other way “by the political party or the persons making the original nominations.” (Gen. Stat. 1915, § 4203.) The provision regarding the political party obviously could not apply to an election conducted on a nonpartisan basis. That regarding the persons who made the original nomination plainly refers to the independent nominations made by certificates signed by a certain percentage of the electors. (Gen. Stat.
1915, § 4199.) It would be manifestly impracticable to apply that provision in the case of a person nominated by votes cast at a secret ballot, owing to the impossibility of identifying the individuals who had voted for him, in the absence of some statutory method. The recall amendment to the constitution (Gen. Stat. 1915, § 193) recognizes this difficulty and meets it by accepting the certificate of the signer of a petition for recall that he voted fon the officer sought to be recalled as establishing that fact. The primary-election law as originally adopted (Laws 1908, ch. 54), required a blank ticket (containing only the titles of the officers to be voted for) to be provided in addition to the tickets of the several political parties (§10), and directed the canvassing boards to “name the person receiving the highest nhmber of votes cast upon the blank ticket-for each office as the nonpartisan nominee for such office” (§ 13, subdiv. 6). It may be doubted whether these provisions were ever of any practical effect, because the section first cited required the voter to call for and use a party ticket. At all events they are no longer of any force, for all reference to the blank ballot was omitted in the revision of section 10 in 1915 (Gen. Stat. 1915, § 4183), and although section 13 has not been expressly amended (Gen. Stat. 19Í5, § 4186, subdiv. 6), the portion thereof referred to is necessarily inoperative because of that omission. Whether or not under the original law a person named by a canvassing board as a nonpartisan nominee might have withdrawn, and if so whether his place could have been filled, need not be considered, as the question cannot arise under the statutes now existing.
We do not think that from the language used an intention can be attributed to the legislature to make the provisions of the Australian ballot law for withdrawal and for the filling of vacancies applicable to elections held in cities of the first class under the commission form of government act. It will be noted that that act makes the general law applicable only with regard to “the conduct of said primary,” there being no reference to steps subsequent thereto, and no such general adoption of the provisions of other statutes as is inserted in the primary law. Nor does this act contain such a provision as is found in that relating to the commission form of government in cities of the second class, making the general election and primary laws applicable to elections held thereunder. (Gen. Stat. 1915, § 1833.) ■ It cannot be assumed that it was through oversight that no provision for the withdrawal of nominees or the filling of vacancies was made in the original legislation by which the nonpartisan form of election was adopted for cities of the first class operating under the commission form of government. That method of selecting officers for such cities was instituted in 1909 (Laws 1909, ch. 74, § 2, Gen. Stat. 1915, § 1468), and as the law stood from then until 1915 in all cases only eight days elapsed between the primary and the election (the elected officers assuming their duties practically at once) and it may-well have been thought that that period was so short that withdrawals ought not to be allowed, because the plan of selection imposed by the statute would thereby be changed, and that deaths of candidates during the interval would be too infrequent to make legislation on the subject desirable. In 1915 municipal primaries and elections in cities of the first class having less than 18,000 inhabitants were required to be held on the days of the state primary and election, in August and November, the persons elected to take office in January. (Gen. Stat.- 1915, § 1471.) This so greatly extended the time between the elimination contest and the final choice that the insertion in the new law of some provision regarding vacancies might have been regarded as desirable if attention had been directed to the subject, but the purpose of the change being doubtless merely to save the expense of a spring election it was not surprising that this phase of the matter should have been overlooked.
For these reasons the writ has been denied.
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The opinion of the court was delivered by
Johnston, C. J.:
L. A. Sehlesener brought this action to recover damages resulting from the false representations and fraud of his agents, W. H. Mott and J. R. Kohler, in the sale, purchase and exchange of parcels of real estate. Plaintiff recovered damages in the amount of $3,504.22, and from the judgment defendants appeal.
It appears that plaintiff owned a tract of land in Texas upon which a value of $8,000 was placed. It was subject to an encumbrance of $3,812, which included four vendor’s lien notes of $373.75 each, previously executed by plaintiff. He employed defendants as his agents to procure a sale or an exchange of his Texas land for other property. Sometime afterwards the defendants informed plaintiff they had obtained an offer of a tract of 174 acres of land in Butler county, Kansas, in exchange for his Texas land. They represented that the Kansas land was priced at $11,310, which was $65 an acre, and it was subject to a mortgage of $2,500. The fact was that the owner, Wilson, had given an option on the land at the price of $5,500 to one Colcrazer, and the latter had offered to turn it over to the defendants for an allowance of one dollar an acre, amounting to $174. The defendants concealed from plaintiff the facts relating to the ownership of the land and led him to believe that the owner of the land would take the Texas land of the plaintiff at $8,000, subject to the encumbrance of $3,810.80, which he would assume, and convey the Kansas land to plaintiff at a price of $11,310, which plaintiff was to take subject to the encumbrance of $2,500, and pay the difference between the net values so arrived at, amounting to $4,622.80, in cash. While on a trip to inspect the Kansas land, the defendants adroitly brought him in contact with a man who said he lived near the Kansas land and knew its value, who told the plaintiff that it was worth from $100 to $125 an acre. After.some hesitation the plaintiff was finally induced to make the exchange, and he paid $4,622.80 and received a deed for the Kansas land, subject to the encumbrance. It appears that the owner of the Kansas land had not negotiated for nor taken the Texas land in exchange for that conveyed by him, and when the plaintiff executed a deed for the Texas land he found that no grantee was named in the instrument. He called attention to the omission, saying it was important to him to have a grantee that was responsible, one who would pay the vendor’s lien notes upon which plaintiff was liable. The defendants represented that they had reasons of their own for leaving the grantee unnamed, but that they would guarantee that the grantee would pay the notes and relieve the plaintiff from liability on them. The defendants held the Texas land in their own right for future disposition. Sometime after the exchange the plaintiff was sued upon the vendor’s lien notes, which defendants had guaranteed would be paid, and this put plaintiff on inquiry, and he then learned the real facts of the transaction and of the fraud that had been perpetrated' upon him. While the indebtedness arising on these notes amounted to $1,416, it appears that the plaintiff obtained a settlement of the indebtedness for the sum of $1,235. The defendants associated with them in the negotiations one Charles Bradshaw, all of whom were acquainted with the important facts, and when the deal was completed and the exchange made, the profits arising from the • difference in the actual cost of the Kansas land, and the fraudulently swollen price which defendants had induced plaintiff to pay for it, were divided between defendants and Bradshaw, and the defendants also collected from plaintiff the agreed commission of $200 for making the exchange.
It is contended by the defendants that the evidence did not warrant the findings and judgment that were rendered. The misrepresentations made to plaintiff and the fraud perpetrated upon him were flagrant, and the evidence of them was abundant. Under their employment they owed to plaintiff the utmost good faith and loyalty. This principle required them to frankly inform the plaintiff of the actual price of the Kansas land, but instead of doing so they doubled the price and represented that the inflated price was the lowest figure at which it could be obtained. The most that they were entitled to was the agreed compensation, but they violated their duty and obligation to him and appropriated to themselves the difference between the actual price and the fraudulently fixed price which they induced the plaintiff to pay for the.Kansas land, and thereby they lost their right to the agreed, commission and rendered themselves liable to the plaintiff for the damage suffered by him through their bad faith and breach of duty. (Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Kershaw v. Schafer, 88 Kan. 691, 129 Pac. 1137; Rinebarger v. Weesner, 91 Kan. 303, 137 Pac. 969; Ratliffe v. Cease, 100 Kan. 445, 164 Pac. 1091; Avery v. Baird, 106 Kan. 507, 188 Pac. 254; 31 Cyc. 1430; 2 C. J. 697; 21 R. C. L. 825.)
Although questioned, the evidence appears to be sufficient to show that the Kansas land could have been purchased from Wilson, the owner, for $5,500, and there was the added amount of $174 which Colcrazer asked for his option. No allowance appears to have been made by the jury for the $174 which was actually paid by the defendants to Colcrazer, and as he appears to have had no connection with the misrepresentations or fraud of the defendants, and the amount paid was not an unreasonable charge, we think that allowance should have been made by the jury.
There is a complaint that the findings are not supported by the testimony. An error was made by the jury in the finding that the plaintiff was entitled to $1,416 for the vendor’s lien notes on the Texas land, which the plaintiff was compelled to pay. Since the plaintiff settled this claim by the payment of $1,235, he could only recover on that item the actual loss sustained. This error, however, was corrected by the trial court by eliminating the excess. The court had the authority to make the reduction, and of this ruling there is no good ground for complaint.
Complaint is also made of the instructions to the jury, in that the evidence did not present the issues as outlined by the court, nor the instructions properly state the law applicable to the facts. A careful examination of the instructions satisfies us that the issues were fairly presented and that the law of the case given to the jury was substantially correct.
It appears that after the evidence was submitted, one of the jurors was seized with an illness which rendered him unable to attend court. On that account the jury were duly cautioned and permitted to separate, and the case was continued for a number of days, and until the juror was able to resume his duties. Afterwards the case was argued and submitted to the jury. The postponement of the case and the resumption of the trial upon the recovery of the juror were well within the discretion of the trial court.
Other exceptions are taken to the rulings of the trial court, but in them we find no error nor anything requiring special comment.
Because of the disallowance of the item of $174 actually paid to Colcrazer for the option which he held, that amount should have been added to the $5,500, making the total cost of the Kansas land $5,674.
The case will therefore be remanded with the direction that the judgment be .modified by reducing the verdict to the extent of $174, and with this reduction the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
George L. Hosford refused to answer a question asked of him as a witness in the district court of Sedgwick county, and was adjudged guilty of contempt and ordered committed to the county jail. He asks relief of this court by habeas corpus, on the ground that the order was made without jurisdiction. The matter is submitted upon the papers.
The district court ordered the petitioner to be committed until he should signify his willingness to answer the question, or until the expiration of six months, but stayed the execution of the order until the next day to allow time for the matter to be presented here. Within that period this court took jurisdiction, and by reason of these facts the sheriff was enabled to make a return, which he did, to the effect that he was not restraining the petitioner. While that is technically true, the merits of the legal questions upon which the validity of the order of commitment depends have been fully argued, and it would be futile to withhold action until a physical restraint should be imposed.
The petitioner is the general superintendent of the Christian Service League — a “children’s aid society” as defined in the statute (Gen. Stat. 1915, § 6373) — to which has been intrusted by the juvenile court of Sedgwick county the custody of Ethel Hook, minor daughter of George Hook and Myrtle Hook, who had been divorced by a decree of the district court of that county in April, 1918, the custody of the child having been awarded to the father.. In February, 1919, the juvenile court made a finding that the child was dependent and neglected, and gave her to the care of the league. In November, 1919, the child’s mother applied to the district court asking that the order made in the divorce case be modified, and that she be granted the custody of the child. Neither the league nor any one representing it was a party to the proceeding, but its superintendent, the petitioner, was present and testified that the child had been placed by the juvenile court with the league for adoption. The judge asked him where the child was, and he declined to answer, on the ground of privilege and want of jurisdiction in the court, such refusal being the basis of the order adjudging him to be in contempt. The court awarded the custody of the child to the mother, but made no order in that respect upon the petitioner or the league.
The petitioner represents that the usefulness of such societies as that which he represents will be seriously impaired if parents of children committed to their care are permitted as a matter of right to be advised of their whereabouts. He contends that the continuing jurisdiction of the district court to control the custody of a minor child of the parties to a divorce suit ceases when the action of the juvenile court is properly invoked with respect to it; that the power exercised in such a case by the juvenile court is one specially delegated to it by the state in its capacity as supreme guardian of all minors, and supersedes even that of another court which had already acquired jurisdiction to determine the most suitable custodian of a child, whether depending upon the conflicting claims of its parents or upon its own welfare. So far as the matter is affected merely by the claims of father or mother little difficulty is presented.
“The most striking demonstration of the supremacy of the guardianship of the state over that of the parent is furnished by the statutes under which children cruelly treated, abandoned or being brought up in ways of vice are taken from the parents by administrative proceedings instituted by the state, and committed to public or charitable institutions.” (20 R. C. L. 600.)
In 1901, prior to the enactment of the juvenile court law, the legislature authorized dependent or neglected children to be placed under the care of children’s aid societies, and made provision against subsequent interference by the parents, in these words:
“No parent or guardian or other person who by instrument of writing surrenders or has heretofore surrendered the custody of a child to any children’s aid society, or institution shall thereafter, contrary to the terms of such instruments, be entitled to the custody of or any control or authority over or any right to interfere with any such child, and these same conditions shall prevail where a child is or has been delivered to such children’s aid society or institution by action of any proper court.” (Gen Stat. 1915, § 6378.)
Although the provision of the statute giving the district court power to modify an order made in a divorce case regarding the custody of the children (Gen. Stat. 1915, § 7580) is a part of the revised code of civil procedure adopted in 1909, it is a reenactment of a section of the original code (Gen. Stat. 1868, ch. 80, § 645) and is to be regarded as a continuation thereof (Gen. Stat. 1915, § 10973, subdiv. 1), yielding so far as there may be any conflict to the later expression of the legislative will.
The continuing jurisdiction of a court which has granted a divorce to supervise the custody of minor children of the parties cannot be interfered with by another court which except for such retained jurisdiction would have authority under a writ of habeas corpus to make the same inquiry and grant the same relief. (In re Petitt, 84 Kan. 637, 114 Pac. 1071.) The juvenile court, however, stands upon a very different footing. It is specifically given jurisdiction “of all cases concerning dependent, neglected and delinquent children.” (Gen. Stat. 1915, § 3065.) The conditions under which it may take control of a child and the manner in which it may exercise it are quite different from those existing in the case of any other tribunal. It is of course inferior to the district court, to which an appeal in some instances may be taken from its rulings (Gen. Stat. 1915, § 3076), and which may exercise supervision and control over it to prevent and correct errors and abuses. (Gen Stat. 1915, § 2957.) But this appellate and supervising power must be exercised directly and according to some prescribed method. The district court has no authority, merely by reason of its broader powers, to disregard the action of the juvenile court. If, for instance, a boy whose custody had been awarded by the district court to his father should by reason of some serious delinquency be regularly committed by the juvenile court to the state reformatory, assuming that to be authorized by the statute (Gen. Stat. 1915, §3073), or — as often happens — to the state industrial school, it would seem quite out of keeping with the general plan of administering such matters if the duration of his stay there could be controlled by the district court in virtue of its reserved jurisdiction, and that situation would not be essentially different from the one here presented, so far as relates to the jurisdiction of the district court, for even such a commitment would not be for the purpose of punishment, but for the welfare of the child. (In re Turner, 94 Kan. 115, 145 Pac. 871.)
It is not necessary to the protection of a minor that its control when regularly assumed by a court having only specially conferred powers, or by an administrative body, shall be subordinate to that of a court of general or superior jurisdiction. Much unfavorable criticism of the legal system of the state of Georgia was occasioned a few years ago by the refusal of its supreme court, on the ground of want of power, to order the release from custody of a ten-year-old boy — Ollie Taylor. {Taylor v. Means, 139 Ga. 578.) The decision was widely interpreted as a holding that the boy had been sentenced to penal servitude until he should attain his majority, for the offense of having stolen a bottle of soda water, and that the law afforded no means of relieving him from that penalty. The facts appear to be that although the language of the criminal law was to some extent employed, for practical purposes he was merely committed for his own good to a county industrial farm, and the want of jurisdiction in the superior or supreme court to interfere arose from the fact that the legislature had empowered another tribunal — the authorities having charge of the farm — to decide when his own interests and the public welfare would be best subserved by his discharge. Moreover, the application for his release which was denied by the supreme court was made by his father, apparently for the selfish purpose of obtaining a material benefit from his services. (50 Congressional Record 960; 4 Journal of Criminal Law and Criminology 171.) We are of the opinion that in the present case when the juvenile court intrusted the care of the child to the children’s aid society, the cutting off of the right of the parents to its control involved also the ex-tinguishment of the authority of the district court, derived from the retention of the jurisdiction acquired through the divorce action, to regulate the matter — an authority which originated in a consideration of the conflicting claims of the parents, although in its exercise the welfare of the child was of primary importance. As the court for this reason had no power to make an order affecting the custody of the child, there was no basis for an inquiry as to its whereabouts.
This view seems in accordance with that taken by the courts so far as the question has been discussed by them. In Miller v. Higgins, 14 Cal. App. 156, it was held that a court which had granted a divorce could not be divested of jurisdiction over a minor child of the parties by its secret removal to another county where by fraudulent concealment of the facts an order of adoption had been procured. But in the opinion in that case the court of appeals expressly recognized the force of an earlier decision of the supreme court (Younger v. Younger, 106 Cal. 377), to the effect that “Where the adoption was regularly had, the status of the child was changed, and it no longer remained the child of the parties to the marriage, but became the child of another, and its relation to its natural parents ceased, and the jurisdiction of the divorce court was terminated.” (p. 163.) The mere passage of a juvenile-court act has been held not to affect the jurisdiction of the court trying a divorce suit over the minor children. (McDaniel v. Youngblood, [Ala.] 77 So. 674.) But it has been held that the pendency of a divorce case in which the court as between the parties could determine the custody of their minor child does not prevent the juvenile court from taking charge of it on the ground of its being neglected. (Brana v. Brana, 139 La. 306.) The scope of that decision is fairly indicated by these paragraphs of the syllabus:
“The decision of the juvenile court, vested with jurisdiction to determine when a child answers the description of a neglected child given by the Constitution is not to be challenged except in a direct action brought for that purpose, or in some appellate tribunal; and hence is not subject to inquiry in the civil district court, but must there be assumed to be well founded. (Syl. ¶ 3.)
“The jurisdiction of the juvenile court as to the custody of neglected children is quasi criminal, operating as between the state and the parents or as between the child and the state, and if the civil district court, having civil jurisdiction of a suit for separation from' bed and' board, had awarded the child to the mother, there was nothing to prevent the juvenile court from finding that the child was neglected and from taking it from the parent who was neglecting it, or from both parents, as in that matter its jurisdiction was not concurrent with the civil district court.” (Syl. ¶ 5.)
The opinion refers to an earlier case, where the father of a child sought without success to defeat the jurisdiction of the juvenile court over it on the ground that it was not neglected and that it was subject to the control of the district court in an action for separation from bed and board, the supreme court saying;
“The juvenile court and the court in which a suit in separation from bed and board is pending between the parents of a child may have simultaneous, though not concurrent, or conflicting, jurisdiction of the custody of the child; that of the juvenile court to be exercised as between the state, or, so to speak, the child, and the parents of the child; and that of the other court to be exercised as between the two parents. In the instant case, on the assumption of the child Iska McCloskey not being a neglected child within the meaning of that term as defined by the constitution (article 118, §3), the juvenile court is utterly without jurisdiction of her custody, and the civil district court has exclusive jurisdiction. On the contrary assumption, the juvenile court has jurisdiction.
“With the facts of the case this court has nothing to do, but must assume that the learned judge of the juvenile court exercised jurisdiction because he found upon the facts that the said child of relator was a neglected child within the meaning of that term as expressly, carefully, and explicitly defined by said article of the Constitution.” (State v. McCloskey, 136 La. 739, 741.)
During the proceedings in the district court in the present case a suggestion was made challenging the constitutionality of the juvenile-court act. No specific basis for a doubt in that regard was indicated, and the validity of the statute is not attacked in the brief of the respondent. It has been sustained against all the attacks heretofore made upon it in this court (In re Turner, 94 Kan. 115, 145 Pac. 871), and the cónstitu tionality of similar statutes has been elsewhere upheld in other, respects. (Notes, 18 L. R. A., n. s., 886, and 45 L. R. A., n. s., 908, 913.)
The question already determined is that upon which the case has been principally argued, and as the conclusion reached requires the discharge of the petitioner there is no occasion for undertaking to determine in what circumstances an adoptive parent, or one standing in substantially that relation, should be excused from giving information at the demand of a natural parent as to the whereabouts of an adopted child.. It is obvious that under some conditions the welfare of the child may be promoted by the absolute severance of all connection with its parents, harsh as such a measure may seem. Persons in every way adapted to the responsibility, when considering -whether or not they should adopt it, might not unreasonably be influenced in their decision by the question whether they could rely with entire confidence upon protection from any attempt of the natural parents to reestablish relations with it, and this might be insured only by keeping them in ignorance of where it was to be found. In a case in which the court denied the right of parents to be informed of the whereabouts of their two children who by agreement had . been turned over to an institution known as the Temporary Home for the Destitute, the court said':
“In some of our public institutions it has been deemed expedient to keep parents in ignorance of the place where homes have been found for their children, on account of the disposition often manifested to visit them and excite uneasiness and discontent in their minds. Such influences may be feared in this case, and there may be just ground- for the suggestion made by the respondent’s counsel, that if the former character of the father were made known among the present schoolmates and associates of the children, it might cause annoyance and injury to them at their present tender age. The children ought not to be thus exposed, unless the judge who hears the cause shall have some ground to believe that their welfare requires it.” (Dumain and wife v. Gwynne, 92 Mass. 270, 275.)
The petitioner is discharged.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Fred Pack to recover damages for the loss of a-finger alleged to have been caused by the negligence of Martin L. Grimes and William M. Jones, doing business under the firm name of Hutchinson Monument Works. The court sustained a demurrer to plaintiff’s evidence, and gave judgment for defendants. Plaintiff appeals.
It appears that defendants were carrying on the business of converting rough stones into tombstones and monuments. At the end of the factory building in which the shaping, dressing and lettering were done, a derrick had been erected to be used in loading the tombstones and monuments when finished upon transfer wagons and trucks. It was operated by means of levers, pulleys, ropes, cogwheels and cranks. On the day of the accident the defendants called the Union Transfer Company, for whom plaintiff was working, and asked them to move certain tombstones and monuments to the cemetery. That company sent the plaintiff and another of its employees to perform the task, and while plaintiff was assisting in the work and was turning a cogwheel in order to lower the tackle and fasten it upon a part of a monument so that it might be lifted upon the wagon, an employee of the defendants carelessly seized and jerked the rope, causing the cogwheel to revolve rapidly and in such a way as to draw plaintiff’s finger between the cogwheels and cut it off. Sometime before the accident there had been a guard over the cogwheels but it had been removed at that time. Shortly afterwards a guard was provided.
In this action the plaintiff is asking for the benefit and protection afforded by the factory act, and he contends that his evidence made a prima facie case for a recovery. In support of the ruling sustaining the demurrer to plaintiff’s evidence, defendants contend that it was not shown that the defendants’ plant is a factory. In it rough stones are shaped, dressed, lettered and converted into tombstones and monuments. In the factory act it is enacted that a manufacturing establishment includes certain mills, shops and works that are specifically named, and added that it also includes—
“. . . any other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.” (Gen. Stat. 1915, § 5892.)
In Jeffries v. Elevator Co., 102 Kan. 811, it was said: “All establishments for the modification of natural products to adapt them to human needs are embraced in the act.” (p. 813.) Under the authority of the cases dealing with this subject there is no doubt that the monument works of defendants is a manufacturing establishment within the meaning of the factory act. (Caspar v. Lewin, 82 Kan. 604, 109 Pad. 657; Raines v. Stone, 87 Kan. 116, 123 Pac. 871; Bubb, Adm’x, v. Railway Co., 89 Kan. 303, 131 Pac. 575; Buchanan v. Blair, 90 Kan. 420, 133 Pac. 709; see, also, Laws 1917, ch. 226, § 2.)
The derrick or lifting machine, although in the yard outside of the building, was a part of the factory. It was used in connection with other processes in carrying on defendants’ business, and was an essential part of the establishment.
There is a contention that as plaintiff was not an employee of defendants he was not entitled to the protection of the act. This protection is given not only to employees but it is also extended to other persons working in the establishment. (Gen. Stat. 1915, § 5890.) The scope of the protection was considered in.Caspar v. Lewin, supra, wherein it was said:
“The statute is a factory act and an employer’s liability act combined. It bears internal evidence that the employer’s liability acts of other states had been studied. They are usually drawn in favor of ‘an employee,’ and •consequently are held to exclude employees of subcontractors. To meet this defect the protection of the act was extended ■ not' only to persons ■employed, but also to persons laboring, in a manufacturing establishment. The staple employer’s liability act, however, expressly limits its application to ‘an employee, who at the time of the injury is in the exercise of •due care.’ (Laws Colo. 1893, ch. 77; Acts Ind. 1893, ch. 130; Acts Mass. 1887, ch. 270; Laws N. Y. 1902, ch. 600.) The omission of any such restriction from the Kansas law appears to have been deliberate and intentional.” (p. 629.)
The plaintiff was laboring in the establishment when he was injured and fairly comes within the provisions of the act.
Another contention is that the plaintiff was a volunteer when he was assisting in loading monuments — that it was the work of others and no part of his duty. The testimony in this regard is not strong but it was shown that in several other instances he had helped to load monuments without objection or interference, and under the circumstances he cannot be regarded as a trespasser. Whether he was laboring in the establishment with the consent of the defendants, or a mere trespasser, was under the evidence a question of fact for the jury, and we conclude that there was sufficient evidence to take the case to the jury.
For the error in sustaining the demurrer to the evidence the judgment'is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Marshall, J.:
This action is to recover a real-estate agent’s commission. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
1. The defendant argues that the court erred in holding, on the introduction of evidence, and in instructing the jury, that the plaintiff’s allegation in the petition that the plaintiff was orally employed by the defendant to find a purchaser for certain real property was admitted by the answer. The petition of the plaintiff alleged “that on the 19th day of March, 1918, he was orally employed by E. E. Hounsom, the defendant, to find a purchaser for him” for certain real property. The answer contained a general denial of the allegations of the petition, but was not verified. Section 110 of the code of civil procedure reads in part as follows:
“In all actions, allegations of the execution of written instruments and indorsements thereon, of. the existence of a corporation or partnership, or of any appointment or authority, . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” (Gen. Stat. 1915, § 7002.)
The controversy presented turns on the construction of the words “appointment or authority,” contained in the code. The allegation of the petition is equivalent to an allegation that the plaintiff was authorized -by the defendant to find a purchaser for him. To that extent the plaintiff was given authority to act for the defendant, and to that extent the allegation comes.within the provisions of section 110 of the code of civil procedure. That, in effect, was the holding of the court on the introduction of evidence, and was in effect the instruction to the jury, and this court must conclude that the ruling and instruction of the trial court were correct.
2. On the trial, when the court held that the allegations of the petition concerning the plaintiff’s authority were admitted, the defendant asked leave to amend his answer by verifying it. The court refused that request. Why the answer was not verified is not shown. No excuse for failure to verify it is given, and so far as the abstract discloses, none was given to the trial court. The verification of the answer would have changed the issues. The court had discretionary power to control the amendment of the pleadings. (Civ. Code, § 140, Gen. Stat. 1915, §7032; Long v. Railroad Co., 100 Kan. 361, 164 Pac. 175.) It does not appear that any discretion was abused by refusing to permit the amendment.
The judgment is affirmed.
Dawson, J., dissents.
Porter, J.
(dissenting):' The petition contained no reference to appointment or authority or agency, but was the usual petition in an action to recover a commission for services in finding a purchaser for defendant’s lands. The answer was a general denial, unverified.
In stating his case to the jury, counsel for defendant (appellant) said in substance that the evidence would show that plaintiff had nothing to do with making the, sale, that defendant “never, at any time employed” plaintiff “as his agent or otherwise to find a purchaser; . . . never agreed, nor was he asked to agree to pay him a commission until after this sale was made”; and concluded his remarks with the usual statement that “under the evidence as it will be brought before you, we expect your verdict to be for the defendant.”
Thereupon counsel for plaintiff said:
“After hearing the statement ... I think possibly that under the pleadings . . . the employment as an agent is admitted. There is no denial of it under oath.”
After some discussion, counsel for defendant asked leave to verify the answer, which the trial court denied, and the employment of plaintiff by defendant was considered on the trial as having been admitted by the failure to verify the answer, resulting in a verdict and judgment for the plaintiff.
The petition not having alleged agency or authority, the cause of action stated was no different than if the allegation had been that defendant agreed to pay plaintiff a commission provided plaintiff furnished him with information that would enable him to find a purchaser, and that plaintiff had duly performed. As against a third party who claims to have dealt with an alleged agent, the code requires the person sought to be charged as principal to give notice by verified denial of his intention to question such agency or authority. But the purpose of the provision is to afford protection to third parties against the denial of one that he had appointed or authorized another to act for him when sought to be bound by the other’s declarations or acts. No third person raises the question of agency, or authority or appointment, and the law of agency has no more to do with this case than if plaintiff had sued to recover for any other services rendered under a contract, express or implied, by which he was to be paid for his services.
I think, too, that after the court had made the ruling holding that the issues were enlarged by the statement of defendant’s counsel, and that the question of agency was involved, it was an abuse of discretion to refuse permission to verify the answer. (St. L. & S. F. Rly. Co. v. Dudgeon, 28 Kan. 283, 285; Mortgage Co. v. Lash, 60 Kan. 141, 55 Pac. 846; Gates v. Oil Co., 105 Kan. 46, 181 Pac. 570.)
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The opinion of the court was delivered by
Porter, J.:
Melissa J. Small, a widow, died intestate. She was the mother of three children, Albert, Reuben, and H. B. Small. Albert and Reuben died, intestate, prior to the death of their mother. Their children, the plaintiffs, and H. B. Small, defendant, are the only heirs at law of Melissa J. Small. The action is one in which plaintiffs seek to have certain property belonging in her lifetime to Mrs. Small decreed to be held by defendant as a trustee of a constructive trust for the use and benefit of all the heirs. It was alleged in the petition that soon after his mother’s death the defendant took possession of all the property, consisting of real estate in Harper county, and moneys to the amount of about $5,000, secretly disposed of or appropriated it to his own use, and has refused to disclose to plaintiffs the instruments or conveyances by which he claims to own the property. The court sustained defendant’s motion to strike from the petition statements in substance to the following effect:
In her declining years Melissa J. Small frequently expressed a desire for an equitable distribution of her property among her children and grandchildren; for several months before her death she was much concerned about that matter; the defendant, taking advantage of this condition of her mind, and contriving and intending to secure from her the. whole of the estate, induced her to intrust him with the property on the representation that he would see that her estate was equitably and justly distributed between himself and the grandchildren; that he frequently called his mother’s attention to other estates that had been dissipated by court proceedings, and gave her a number of instances where transfers of such property had been made to one member of the family, who afterwards saw to an equitable distribution; and he offered his services to her for that purpose, and so continued to work upon her feelings until [she yielded to his demands].- All of this part of the petition, save and except the words “she yielded to his demands,” were stricken out on the ground that it was redundant, irrelevant, and evidential. The motion was filed in January, 1919, shortly after the action was commenced. It was sustained in June, and the defendant was given twenty days to answer the petition as it stood with the portion stricken out. In October, having looked the petition over again, defendant came to the conclusion there was not enough left to constitute a cause of action, and filed a perfectly good demurrer. Without pressing the demurrer, he filed a motion to require plaintiffs to separately state and number their causes of action. At this stage of the proceeding plaintiffs appealed from the order striking out parts of the petition, and also assigned as error the order requiring several causes of action to be separately stated and numbered.
In support of the court’s ruling, defendant thus states his contention:
“The words stricken from the petition áre merely nonessential averments of alleged reasons why the said Melissa Jane Small placed her property in charge of the defendant to he distributed at her death. We submit that if the plaintiff can prove that Melissa Jane Small in her lifetime did place her said property in charge of the defendant to be distributed at her death, it would neither be necessary nor proper for them to prove her reasons for doing so. Such averments, therefore, cannot affect the rights of the parties, and it was within the discretion of the trial court, on motion of the defendant, to order them stricken out.”
The general rule that evidence should not be pleaded does not state the whole law of pleading. It often occurs that the facts which are essential to show a cause of action are evidentiary in character. In pleading fraud it is necessary to allege the facts which it is claimed show the fraud, and likewise necessary to prove facts of the same general character. In the circumstances of this case, where the plaintiffs rely upon a trust arising by implication of law, it was necessary to show the existence of a fiduciary relation between the defendant and his mother, inducing the transfer to him of her property.
The defendant, in support of his contention, cites the case of Drake v. National Bank, 33 Kan. 634, where it was held that “allegations of what the parties intended or desired, or why they made 'the contract, or why they made it as it was made, and what the parties understood and agreed to be its ‘legal purport and effect,’ are irrelevant and redundant — mere surplusage.” (Syl. ¶ 1.) The Drake case is not at all in point. The action there was upon a contract in writing and, of course, the terms of the contract could not be varied by evidence of what induced the parties to make it, or what they understood was its legal effect. If plaintiffs in the present case relied upon a written contract they would not be asking a court of equity to establish a constructive trust by implication of law. They are relying in part upon an oral agreement, or arrangement, not in writing, and which, of itself, would not be sufficient to raise the implication of a trust; but which, under certain conditions, may be used by a court of equity in aid of such implication. That the court struck from the petition matters of vital importance to plaintiffs’ cause of action is apparent from a very recent decision (Silvers v. Howard, 106 Kan. 762), which may be said to answer every contention raised by the defendant. In that case the court had under consideration section 1 of the trust statute (Gen. Stat. 1915, § 11674) prohibiting the creation of a trust concerning lands unless in writing (except such as may arise by implication of law). The statute and the exceptions in the statute were carefully analyzed, and it was held:
“If a fiduciary relation exist between the grantor and grantee in a deed absolute, and the deed be induced by the relation for a trust purpose, breach of the confidence reposed may amount to constructive fraud, from which a trust may arise by implication of law. (Syl. ¶ 4.)
“If such a conveyance be accompanied by an oral trust agreement, the agreement may be considered as one of the circumstances of the case. It may aid implication of a trust, but.it is not sufficient, standing alone, to raise the implication.” (Syl. ¶ 5.)
In the opinion it was said:
“The mere fact that a conveyance is made by a child to a parent or by a parent to a child, without consideration, is not enough to raise a trust by implication. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996.) There must be a confidential relation, a transaction induced by the relation, and a breach of the confidence reposed. When those conditions are satisfied, the law implies a trust.” (p. 769.)
It was error to sustain the motion to strike out.
While a motion to separately state and number is addressed largely to the discretion of the court and is, ordinarily, not reviewable, it is manifest that but one cause of action was stated. Before a court of equity can mold the proper decree in a case of this kind there must be an accounting, which is only an incident to the real cause of action.
The judgment will be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Dawson, J.:
This was a suit for one-half of a real-estate dealer’s commission.
The plaintiff conducted an auto service garage in La Cygne and casually transacted some real-estate business in addition thereto. One C. E. Pollman of La Cygne had a farm of two hundred and fifty-seven and one-half acres near by. Pollman promised to give plaintiff $500 as a commission to find a buyer for the farm at $65 per acre. In April or May, 1918, the plaintiff met the defendant, another real-estate dealer, and told him about the Pollman place; and according to plaintiff’s testimony—
“I had a conversation with Wilson about the place . . . Wilson said he had some buyers for some of this bottom land or thought he could sell some of it and we would divide the commissions. I said that we would look at a place when we come back, we will stop and look at it. We were to divide the commission half and half — 50-50. On the way back we stopped and looked at Ed. Pollman’s farm, consisting of about two hundred and fifty-seven acres, located about two and one-half miles from La Cygne. We drove through the farm in the car. We talked about the price of the farm, which was $65.00 per acre, and I was to get $500.00 if we sold it for $65.00 per acre. . . . After that Wilson sent two or three or four prospective buyers down to see the farm and he was down himself two or three times, I think. I drove them out to the farm.”
In August of the same year the defendant himself bought the farm directly from Pollman for $16,000, which was $237.50 under the net amount Pollman would have realized if he had received his stated price of $65 per acre and if he had been required to pay a commission of $500. Pollman testified:
“I first met Mr. Wilson about the first of August . . . Well, Mr. Wilson met me there and asked me if I had a bottom farm for sale. I told him I did and he asked me what I wanted for it; I told him $65.00 an acre, and I made the same proposition to Mr. Wilson. Well, he handed me his card before that time showing that he was a real estate man and I made him the same proposition that I made to all the rest of the real estate men around town, that I would give him five hundred dollars if he sold the place. ... I gave him a written agreement stating that I would take $16,232.50, and that agreement was $500.00 less than the $65.00 an acre. .
“Q. What did this item of $500.00 represent, that you say you took off? A. It was in accordance with my first proposition that if he sold the place for $65.00 an acre, I was to give him $500.00.
“Q. Then this item of $500.00 deducted from the sale price in your written agreement with the defendant, did represent the commission on the sale of that farm? A. If he sold the farm for $65.00 an acre.
“Q. After taking off this item of $500.00 the price was reduced to $16,232.50, was it not? A. I think that’s right.”
When Stainbrook learned that defendant had purchased the farm, he demanded from him half the commission. Wilson denied liability.
This action was begun. Stainbrook pleaded the facts, and the testimony in his behalf tended to establish his cause of action. On behalf of Wilson, it was admitted that Stainbrook gave Wilson his first information about the Pollman farm, while Stainbrook was driving Wilson for hire on some land inspection in that community.
Defandant’s testimony:
“Q. What is your best recollection as to what he said he wanted? A. I don’t remember that he said just exactly the price on it, and I asked him how many acres he had and he said he thought there was about 270 acres, and we drove down there and looked over the farm the best I could, in fact, I didn’t take particular note of it, and we came back to La Cygne and I said, ‘Mr. Stainbrook, if you will go to the owner of this farm and get a written contract listed at a net price to you, I will try to sell it, I believe I can do it, and we will whack up the commission; I can’t afford to take a straight commission on a farm; it is 75 miles from where I live down to that farm.’
“A. . . . There was nothing said in regard to Stainbrook and I, other than I told him if I had some of that land for sale, I thought I could sell some of it, and we spoke of the Pollman place and went on and looked at the place. Mr. Stainbrook and I had our conversation at the garage when we came back. I then went home. ... I came back to La Cygne and I went to Stainbrook and said, ‘Did you get that written agreement with that fellow?’ And he said, ‘No.’
“Q. Then what did you do? A. He told me the man that ran the butcher shop owned the land. I never knew the man and I went up there and some one told me who Pollman was and I met him coming across the street in La Cygne, and I gave him a card and introduced myself and asked him if Stainbrook had the farm listed for sale, and he told me he had not.”
The defendant also showed that he paid $16,000 for the farm and became responsible for a contract of Pollman concerning the sowing of wheat, and obligated himself to pay interest due or to become due on a $3,500 mortgage on the farm, and to pay the taxes. While the record is not clear on these points, it is inferable that the interest was not due until the following March, that the taxes were not then a lien on the land, and that defendant acquired an interest in the wheat for which he agreed to become resposible.
On rebuttal, plaintiff testified:
,“Q. Did you have any conversation there in which Mr. Wilson asked you if you had gotten this net agreement with Ed Pollman for the price of this farm? A. If I had gotten it? I told him I wouldn’t get it, that Ed would do what he agreed to.
“Q. Did Mr. Wilson ever ask you to get an ag’reement for a net price on the farm? A. Not no net price, we was to get an agreement so he couldn’t back out if we made a sale we wouldn’t lose out.
“Q. Did Mr. Wilson ever tell you he wouldn’t have anything to do with the land unless you did get a written agreement? A. No, sir; he never did.
“A. I remember of telling him I wouldn’t get it.”
From a verdict and judgment for $250 in plaintiff’s favor, defendant appeals.
This is another fact case, of the kind so often brought to this court, and as to which this court can seldom do little except to set down its controlling features and then affirm the judgment. Defendant says the demurrer to plaintiff’s evidence should have been sustained. In view of those portions of the evidence which we have quoted, such contention is manifestly incorrect. Defendant says: “No contract was ever completed between Stainbrook and Wilson.” That was a fair contention to make in view of the conflict of testimony, until the jury had determined whether Stainbrook or Wilson was telling the truth, but it is a waste of words to argue that now.
Appellant contends:
“There was nothing in the relationship between Wilson and Stain-brook which made Wilson liable to Stainbrook for a commission when Wilson discontinued negotiations with Pollman as Pollman’s agent and began to deal with Pollman on the basis of vendor and purchaser.”
Why not? They made the agreement to undertake the sale of Pollman’s farm and to divide the $500 commission. Wilson owed Stainbrook the duty of good faith in their joint project to effect a sale of the farm and thus jointly to earn the $500. He could not, without notice to Stainbrook and without his consent, ignore his agreement and make an independent bargain with- Pollman whereby Stainbrook would be deprived of his half of the commission. By purchasing the property himself he secured an abatement of $500 on the price from Pollman, which was equivalent to a commission. Pollman so testified. That the abatement was not precisely the sum of $500 is immaterial. Pollman was not informed that Stain-brook had interested Wilson in the farm, or that Stainbrook had taken Wilson into a deal whereby they were to cooperate in the sale of the farm and divide the commission. Under such circumstances, while Pollman had reduced the price because he was not liable for a commission, Wilson by reason of his dealings with Stainbrook and because of his bad faith towards Stainbrook profited to the extent of $500 in the acquisition of the farm by himself. Neither law nor good conscience would permit him to deprive Stainbrook of his share of the $500 under such circumstances.
No error of law nor miscarriage of justice inheres in this result, nor can anything further be discerned which would justify discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Wilbert H. Fuller sued Charles A. and Lillian B. Preston for a real-estate broker’s commission of $325.87, claimed to have been earned by his having found them a purchaser for property listed with him for that purpose. A demurrer to his evidence was sustained, and he appeals. It was sufficiently shown that he was employed to find a buyer and that through his procurement negotiations were entered into between the defendants and the Coca-Cola Bottling Company, a corporation, which culminated in a written agreement in relation to the property. The vital controversy is whether the contract was one for a sale, as contended by the plaintiff, or was a mere grant to the corporation of an option to purchase, coupled with a lease for not more than three years, as the defendants assert.
The defendants suggest that the plaintiff did not try to negotiate a sale — that his efforts were directed wholly to the leasing of the property. Some of the evidence perhaps had a tendency to sustain this view. But although no testimony was introduced except in behalf of the plaintiff he was not absolutely bound by any of it excepting that of the agent who represented him in the transaction. This agent testified that the secretary of the corporation first talked with him about buying the property; that “the negotiations were dependent upon his buying the property. They were not leasing the property then. . . . About the second or third conversation between him [the secretary] and the witness they talked about buying defendants’ property.” It appeared that in order to render the premises suitable for the use of the corporation a considerable sum would have to be expended in completing a building thereon. The abstract shows this evidence of the plaintiff’s agent:
“The witness talked with the Coca-Cola Bottling Company about the $12,500.00 price as a price that they would be willing to pay, provided they could get satisfactory terms for payment, and they said the price would be satisfactory, provided the building was finished to meet their requirements and suitable terms [for payment] could be arranged.
“Mr. Jeffords [the secretary] stated in this connection that they were not in position at that time to pay a suitable amount of cash nor would they be for several years; that they were putting in a large amount of machinery in the building, which would take a lot of money to clear up, and they could only meet good, substantial monthly payments and the final payment at the end of three or four years. The amount of this final payment would be dependent entirely on the amount of the loan obtained. Actual figures could not be given by Mr. Jeffords because the loan might eventually be $6,500.00 or $7,500.00, or might be $8,500.00.”
To take care of an existing mortgage of $1,000 and to pro- ■ vide- a fund for completing the building referred to, the defendants borrowed $8,325 from a building and loan association, which was used for that purpose, the Coca-Cola company guaranteeing the payment of the note. The defendants executed a warranty deed for the property to the Coca-Cola company and deposited it with the building and loan association together with the written contract already referred to, the deed to be delivered upon the payment of the $3,500 mentioned in the contract, which read as follows:
“option agreement.
“Lillian B. Preston & Wf. to Coca-Cola Bottling Company.
“For and in consideration of the sum of three hundred and no-100 dollars ($300.00) to us paid, receipt of which is hereby acknowledged, we Lillian B. Preston and Charles A. Preston, wife and husband, hereby grant unto the Coca-Cola Bottling Company, of Wichita, Kansas, a corporation organized and existing under the laws of said state, an option to purchase the following described real estate situated in Sedgwick county, state of Kansas, to wit: Lots ten and twelve on Washington avenue, in Block “B” English’s Subdivision to the city of Wichita, upon the following terms: Thirty-five hundred dollars ($3,500) in cash, on or before the first day of May, A. d. 1921, together with interest thereon at the rate of six per cent per annum from this date and the payment of all taxes and insurance on said premises as the same mature.
“If the said sum of thirty-five hundred dollars ($3,500) together with interest, taxes and insurance, as aforesaid, is paid by said, The Coca-Cola Bottling Co., Inc., of Wichita, Kansas, the undersigned will deliver to the said The Coca-Cola Bottling Company a warranty deed to said property, properly executed, furnishing at that time an abstract showing good merchantable title except as herein provided, which deed shall be executed as of this date, by the undersigned, and deposited with this contract in escrow in The' The Wichita Perpetual Building and Loan Association to be delivered to said The Coca-Cola Bottling Company, upon the payment of said thirty-five hundred dollars as aforesaid.
“It is expressly understood and agreed that time is the essence of this option, and should the said The Coca-Cola Bottling Company fail for the period of sixty (60) days to comply with the terms of this option at-the time and in the manner specified herein, then said option shall cease and determine.
“It is expressly understood, as a part of this Option Agreement and coincident thereto, that said Lillian B. Preston and husband are to borrow the sum of eight thousand two hundred thirty-five dollars ($8,235) from The Wichita Perpetual Building and Loan Association, of Wichita, Kansas, on a mortgage to be executed by them against said premises, one thousand dollars of the same to be used to retire an existing mortgage against said premises in favor of one W. H. Good, and the balance to be used in completing improvements on said property in accordance with the present agreement of the parties hereto, according to plans and specifications drawn up by J. R. Rutledge, architect and builder, Wichita, Kansas, said improvements to cost the sum of seven thousand two hundred thirty-five dollars ($7,235).
“It is further agreed by said The Coca-Cola Bottling Company that it shall assume and pay all payments due to The Wichita Perpetual Building and Loan Association for said moneys borrowed from said Association by said grantors, for the purpose above provided, and when such payments with dividends and interest thereon aggregate the sum of eight thousand two hundred thirty-five dollars ($8,235) the said Lillian B. Preston hereby agrees that same shall be credited on said mortgage to The Wichita Perpetual Building and Loan Association and that said mortgage is thereupon to be released of record leaving title to said premises in The Coca-Cola Bottling Company, Inc., of Wichita, Kansas.
“Insurance shall be so made as to protect the interests of the parties hereto.
“Dated this 1st day of March, A. D. 1918.”
The Coca-Cola company took possession of the property, installed expensive machinery in the building, and at the time of the trial, March 31, 1919, had made all the payments on the mortgage as they matured.
1. The defendants rely upon the rule laid down in many decisions that a commission for finding a purchaser for property on certain terms is not earned by the broker’s production of a customer with whom the owner enters into a contract giving an option to buy it on such terms (Aigler v. Land Co., 51 Kan. 718, 33 Pac. 593), even where part payments are made which are to be retained by the owner in case the customer concludes not to buy. (4 R. C. L. 315, 9 C. J. 604, note 72 and corresponding text; James in Option Contracts, § 105. See, also, 9 C. J. 576, note 23.) To this general doctrine we take no exception, but we think some qualification is required to the statement that has sometimes been made in the course of discussions of the subject, to the effect that a contract cannot be regarded as one for a sale, as distinguished from an option, unless the owner can absolutely require the proposed buyer to take the property, or at all events to pay for it in full. While á plausible argument can be made in support of the literal and technical accuracy of that test, we do not think that as a practical matter it should be accepted as infallible. If a broker is employed to find a purchaser for property and produces a prospect with whom the owner enters into a contract which otherwise would amount to one for a sale, it is the view of this court that his right to his full commission would not necessarily be defeated by thé mere fact that there is reserved to the proposed buyer the privilege to decline to complete the purchase, the owner in that event to be compensated by the retention of the portion of the purchase price already paid. This view was announced and applied in Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629.
2. We regard the reasoning of that decision as requiring us to hold that the contract now under consideration was such as to entitle the plaintiff to his commission. On its face— with respect to its phraseology— that contract lent itself more readily than this to interpretation as an agreement for a sale, but here there are a number of special circumstances favoring such construction. The fact that in the title and body of the contract it is described as an agreement for an option might in a doubtful case be of some aid in its interpretation, but is not conclusive as to its real nature, which must be determined by the character of the legal rights of the parties which result from their entering into it. The record of the proceedings of a meeting of the directors of the Coca-Cola company on February 20, 1918, included an entry as follows:
“Thereupon the meeting was advised that the officers of the company-had entered into negotiations with Charles A. Preston for the erection and purchasing of property for the use of the company; and that suitable property could be purchased upon payments of approximately one hundred ($140) dollars per month, such payments to be arranged by the guaranteeing to the Wichita Perpetual Building and Loan Association of a mortgage on this property in the sum of eight thousand two hundred thirty-five ($8,235) dollars, it being understood that this amount would take care of the cost of the improvements upon the property, and the price which would be paid for the lots could be taken care of by an option contract due in about twenty-seven (27) months. After due consideration the following resolution was unanimously-adopted:
“Resolved, That the Officers of the Company are hereby authorized and directed to enter into a contract -with Chas. A. Preston and wife for the purchase of the property described as lots 10 and 12 on South Washington avenue, English’s Subdivision of the city of Wichita, Kansas. As a part of the plan of purchase, the Officers of the Company are hereby authorized and directed to guarantee the payment of the first mortgage in the amount of eight thousand two hundred thirty-five ($8,235) dollars which is to be placed against the above-described property, the terms of such guarantee and the manner of the carrying out of the same to be in such form as the Wichita Perpetual Building and Loan Association requires.
“The officers of the company for the protection of this company are to obtain an option contract with the said Charles A. Preston and his wife, Lillian B. Preston, by which- the company is to have the right to obtain title to this property subject to this first mortgage by the payment of the sum of thirty-five hundred ($3,500) dollars with interest at 6% payable any time within twenty-seven months from the' date of the execution of the contract.”
Of course the language authorizing a purchase is not controlling, but it gives room for an inference that the word “option” was used as a convenient term to signify a reservation by the company of the privilege of declining to complete the purchase after the contract had been partly carried out.
The hypothesis that the contract was regarded as one for a sale, with the reservation of a right in. the buyer to decline to completé it, finds further support in its provisions that the company should “assume and pay all payments due to the building and loan association,” this not being limited to the three-year period or conditional upon the exercise of the so-called option to buy, and that “when such payments with dividends and interest thereon aggregate the sum of eight thousand two hundred thirty-five dollars ($8,235) the said Lillian B. Preston hereby agrees that same shall be credited on said mortgage to the Wichita Perpetual Building and Loan Association, and that said mortgage is thereupon to be released of record leaving title to said premises in the Coca-Cola Bottling Company, Inc., of Wichita, Kansas.”
The defendants advance the theory that the payments on the building and loan company’s mortgage must be regarded as rent. This is untenable because there was evidence that when a lease had been under discussion a rental of $90 a month had been agreed upon, while the payments on the mortgage amounted to $31.85 a week — a difference too large to be disregarded.
The contract requires some interpretation. It does not expressly refer to an occupancy of the property by the Coca-Cola company prior to the delivery of the deed, but that was obviously contemplated. Although the agreement of the company to make payments to the building and loan association until the mortgage was satisfied was not in terms restricted, there is room to imply that if at the end of three years it elected to surrender the property it would be released from further liability, and would have no claim for the return of any money; that will be assumed to be the meaning. The evidence then was sufficient to warrant a finding that the contract amounted to this: The company was to occupy the property for three years, paying in that time $31.85 a week, in all $4,965.60, or $1,725.60 more than the rent would be worth. It was also to pay the taxes and insurance. At any time within the three years it could obtain the deed by paying $3,500, remaining responsible for the mortgage. At the end of that period it could if it saw fit relieve itself of further liability by vacating the property, thereby losing what it had put into it in excess of the value of the rent. We- regard such a contract as essentially similar to that passed upon in Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629, already cited. There the prospective buyer formally agreed to take the property at the stated price, but with a distinct reservation of the right to be released from this obligation by forfeiting the sum of $500 which he had deposited as a part payment. This proviso was characterized as an attempt to liquidate the owner’s damages in case the buyer should not complete the purchase — an agreement in advance as to the equivalent he was willing to accept. Inasmuch as the assumption of the obligation to buy, and the right to be relieved thereof by sacrificing the $500 paid, were contained in the same instrument, there was no actual breach of the contract — the buyer in effect bound himself to do one or the other of two things which the owner had agreed to treat as of equal value — complete the payment of the stipulated price, or forfeit what he had already paid. In the present case the buyer was likewise bound to do one of two things within three years — either complete the purchase of the property by paying $3,500, or lose all that he had put into it in excess of rent, such loss including about $575 a year besides taxes and interest. There were here present, moreover, the circumstances, to which reference has already been made — the change of possession, the installation of machinery, the payment of taxes and insurance, the purposes of the buyer as expressed in its record — indicating that the transaction for practical purposes constituted a sale on time with a right in the buyer to be relieved from further liability by turning the property back.
In an elaborate note entitled “Instrument for purchase of land as a contract or an option” (3 A. L. R. 576) the difficulty of classifying every agreement according to some hard and fast rule is recognized in these words:
“Although the distinguishing characteristics of contracts for the sale of land, and contracts creating merely an option to purchase, are well known, it is unfortunately true that in a great number of cases there are no earmarks by which the type of contract can be immediately recognized, and the presence of such characteristics cannot be definitely determined until the contract has received judicial construction.”
Of the many cases collected and classified in the note few seem based upon facts sufficiently like those here involved to make their citation desirable. In Moss & Raley v. Wren, 102 Texas 567, rehearing 569, the court reached a conclusion contrary to that arrived at in the Kansas case already discussed— Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629. Wright v. Suydam, 72 Wash. 587, contains language tending to support the views expressed in the Davis-Roseberry case, but there the controversy was not whether an agent was entitled to a commission, but whether the vendee could enforce specific performance.
3. The amount of the plaintiff’s compensation under the evidence was to be (in accordance with custom) 5 per cent of the first $1,000 of the price and 2% on the remainder. He asks a recovery on the basis of a sale for $12,035. His evidence was that the property was placed in his hands for sale for $4,500, which price included the $1,000 mortgage. It is said that “commissions must be estimated on the whole value of the property without regard to incumbrances, in the absence of a specific agreement to the contrary.” (9 C. J. 582.) Whether or not that rule is accepted, we think the commission should be computed on $4,500. The listing here appears to have been for a sale of the property clear, for that amount, and not for its sale for $3,500, subject to the $1,000 mortgage. We regard the sale contracted for as one substantially for $4,500, the old mortgage having been paid off out of the proceeds of the new one. We do not think, however, the building and loan mortgage (in excess of the thousand dollars) should be included in the amount on which a commission should be computed. That mortgage was given as a part of the means by which the sale was to be effected — it was for the benefit of the purchasing company rather than of the seller, except as it helped to promote the sale.
The judgment is reversed, and the cause is remanded for further proceedings in accordance herewith.
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The opinion of the court was delivered by
JOHNSTON, C. J.:
The defendant appeals from a decision adjudging him to be guilty of violating certain provisions of chapter 166 of the Laws of 1917, prohibiting the barter, sale or giving away of cigarettes or cigarette papers and also the keeping and having them for barter, sale and free distribution.
The information charged the making of twelve separate sales to a number of persons, and in the thirteenth count he was charged with keeping cigarettes and cigarette papers for barter, sale and free distribution. The jury found him guilty of separate sales under seven of the counts and also guilty under the thirteenth count for the keeping of the prohibited articles, but found him not guilty under three of the counts charging sales.
The defendant contends that the act under which he was convicted denies to him the equal protection of the laws and deprives him of liberty and property without due process of law in violation of the fourteenth amendment of the constitution of the United States.
In substance the first section of the act makes it unlawful to barter, sell or give away cigarettes or cigarette papers and also to keep them in a store or other place for barter, sale or free distribution! It provides that upon proper complaint there may be a search for and a seizure and confiscation of such articles if found. It contains the added provision that the possession "of the prohibited article shall be considered prima facie evidence of a violation of the act!
The second section declares it to be unlawful to advertise cigarettes or cigarette papers offered for sale in any newspaper, periodical or circular or upon any street, sign, placard, billboard, or in any package, store, window, show case or any other public place.
The third section makes it unlawful to sell or give away cigarettes or cigarette papers or tobacco to anyone under twenty-one years of age, and likewise makes it unlawful for the proprietor of any place of business to permit minors to frequent such place while in the act of using tobacco in any form.
The fourth section provides that a violation of the preceding sections shall be a misdemeanor punishable by a fine of not less than $25 nor more than $100 for each offense.
The defendant bases his claim of invalidity upon the ground that the act prohibits the sale of tobacco in one form and permits its sale in other forms and that the classification so made is arbitrary and unreasonable. For a number of years there has been a well-settled opinion that the use of cigarettes, especially by persons of immature years, was harmful, and the courts have recognized that they were deleterious in their effects. Their sale and use have been regulated and prohibited by legislative bodies, and these measures have been upheld as a proper exercise of the police power. An ordinance of the city of Chicago provided that only licensed persons of good character and reputation could sell cigarettes and that none could be sold within a prescribed distance of a schoolhouse. A license fee of considerable amount was required to be paid, and, besides, the licensee was required to give a bond that he would ohey the laws. A person convicted of violating the ordinance challenged the validity of the regulation, insisting that the ordinance and judgment operated to deprive him of liberty and property, thereby violating the federal constitution. Among other claims it was urged that the singling out of one form of manufactured tobacco for regulation without applying the same regulation to other forms in which tobacco may be used was an invalid exercise of power. The court overruled the objection and held that the measure did not violate any principle of the federal constitution. In deciding the case it was said:
“It being well known that young persons of weak and immature minds are more liable to use tobacco in the form of cigarettes than in any other form, a legislative body may properly provide for the regulation and sale of that article in the form in which it is likely to be most deleterious and injurious, and may restrict the sales of that particular form of tobacco. Paragraph 66 before quoted expre'ssly authorizes the adoption of ordinances necessary to police power, and paragraph 78 is an express authorization of the city council to make all regulations necessary or expedient for the promotion of health or the suppression of disease. Under these two provisions express authority is granted the municipality to pass all ordinances or requirements tending to promote the public health, morals, security, comfort and welfare of the community. Such legislation is included within the provision authorizing the enactment of police regulations. The most important of police powers is that of caring for the health of the community, and that is inherent in a municipality, and may be exercised whether expressly granted or not, because the preservation of the health of the public is indispensable to the existence of the municipal corporation.” (Gundling v. City of Chicago, 176 Ill. 340, 348.)
The case was taken on appeal to the United States supreme court where the judgment was affirmed, that court holding that the regulation of the sale of cigarettes was a question for the state to determine for itself and was not a violation of any provision of the United States constitution. (Gundling v. Chicago, 177 U. S. 183).
A statute of Tennessee provided that the sale of cigarettes, cigarette papers or substitutes for the same or the bringing of these articles into the state for the purpose of selling or giving them away, was a misdemeanor punishable by a fine of $50. W. B. Austin, who purchased packages of cigarettes from a dealer in another state and sold a package to a customer in his place of business in Tennessee, was convicted. He contended that the act was beyond the power of the state legislature and violated the Federal constitution. In .treating the question whether cigarettes as shipped in packages were articles of commerce, subject to state control and prohibition, the supreme court of Tennessee said:
“Are cigarettes legitimate articles of commerce? We think they are not, because wholly noxious and deleterious to health. Their use is always harmful; never beneficial. They possess no virtue, but are inherently bad, and bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond question, their very tendency is toward the impairment of physical health and mental vigor. There is no proof in the record as to the character of cigarettes, yet their character is so well and so generally known to be that stated above, that the courts are authorized to take judicial cognizance of the fact. No particular proof is required in regard to those facts which, by human observation and experience, have become well and generally known to be true ( Whart. Evi., sec. 282; 1 Jones Evi., secs. 129, 134; Lanfear v. Mestier, 18 La. Ann., 497 (S. C., 89 Am. Dec., 658, and note 693); State v. Goyette, 11 R. I., 592; Watson v. State, 55 Ala., 158); nor is it essential that they shall have been formally recorded in written history or science to entitle' courts to take judicial notice of them. Boullemet v. State, 28 Ala., 83; 12 Am. & Eng. Enc. L. 199. It is a part of the history of the organization of the volunteer army in the United States during the present year that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that, among the applicants who were addicted to the use of cigarettes, more were rejected by examining physicians on account of disabilities thus caused than for any other, and perhaps, every other reason. It Is also part of the unwritten history of the legislation in question that it was based upon and brought to passage by the firm conviction in the minds of legislators and of the public that cigarettes are wholly noxious and deleterious. The enactment was made upon this idea, and alone for the protection of the' people of the State from an unmitigated evil.” (Austin v. State, 101 Tenn. 563, 566.)
This case, too, was appealed to the supreme court of the United States, and while it declined to take judicial notice that special injury resulted from the use of cigarettes or to approve the opinion of the Tennessee court that they are “inherently bad and bad only,” it did hold that a restriction or prohibition of the sale of cigarettes, enacted by a state for the protection of the public health and welfare, is within the police power. In upholding this statute and affirming the judgment that court said:
“Cigarettes do not seem until recently to have attracted the attention of the public as more injurious than other forms of tobacco; nor are we now prepared to take judicial notice of any special injury resulting from their use or to indorse the opinion of the supreme court of Tennessee that ‘they are inherently bad and bad only.’ At the same time we should be shutting our eyes to what is constantly passing before them were we to affect an ignorance of the fact that a belief in their deleterious effects, particularly upon young people, has become very general, and that communications are constantly finding their way into the public press denouncing their use as fraught with great danger to the youth of both sexes. Without undertaking to affirm or deny their evil effects, we think it within the province of the legislature to say how far they may be sold, or to prohibit their sale entirely, after they have been taken from the original packages or have left the hands of the importer, provided no discrimination be used as against such as are imported from other states, and there be no reason to doubt that the act in question is designed for the protection of the public health.” (Austin v. Tennessee, 179 U. S. 343, 348.)
While the decision dealt mainly with the question of whether the prohibition of the sale of cigarettes shipped in packages from another state was an infringement of the power of congress over commerce, it did hold that it was within the province of the legislature of the state to declare how far cigarettes may be sold or to prohibit their sale entirely after they have been taken from original packages and form a part of the mass of property within the state. It was held that it was not unreasonable for the state to declare under penalties that cigarettes are injurious to public health and welfare and that such an act did not trench upon the liberty of a citizen by preventing him from carrying on a lawful business nor infringe any principle in the fourteenth amendment of the Federal constitution. These decisions practically determine adversely the contentions of the defendant.
The claim that the classification or distinction made between cigarettes and other forms in which tobacco is prepared and wrapped is without substantial merit. It is competent for the state to determine for itself the extent to which it will go in the restriction or prohibition of the sale or use of that which is deleterious to public health or morals. It determined that the sale of cigarettes was a greater menace to the health and welfare of the people than would be the sale or use of tobacco in other forms, and further that the sale of tobacco to minors endangered the public health and safety more than would a sale to adults. It was within the province of the legislature to determine what kinds of tobacco lead to the most hurtful results and further that the use of tobacco was more hurtful to minors than to adults. We think there was sufficient ground for the classification that was made. The legislature is not required to cover all evils of a like character in a single act. The fact that it has placed one of them under the ban of the law without condemning others does not impair the validity of the act. In Cotting v. Kansas City Stock Yards Co. &c., 183 U. S. 79, the supreme court, in speaking of the classifications, said:
“It may often happen that some classes are subjected to regulations, and some individuals are burdened with obligations, which do not rest upon other classes or other individuals not similarly situated. License taxes are imposed upon certain classes of business, while others are exempt. It would practically defeat’ legislation if it was laid down as a rule that a statute was necessarily adjudged invalid if it did not bring all within its scope or subject all to the same burdens. It would strip the legislature of its inherent power to determine generally what is for the general interest, which interests may often be promoted by regulations affecting one class which do not affect another — certain burdens imposed on one which do not rest upon another.” (p. 111.)
In the exercise of the police power the legislature may proceed step by step, condemning that which it deems to be the greatest menace to the health and welfare of the people, leaving further regulation and prohibition for future consideration. One who has violated such a prohibition has no ground for objecting that others escape punishment who have done acts which might have been prohibited and punished. The legislature has drawn the line in good faith between the different forms of tobacco and the classes to whom sales may be made, and this, we think, has- been done without violating the constitutional rights of the defendant. (State v. Olson, 26 N. D. 304.) While the statute prohibits the sale or keeping for sale of tobacco to minors or of tobacco and materials connected with the smoking of tobacco, that part of the act is not within the charges made against the defendant and is therefore not involved in the case.
There is a further contention that the provision making the possession of cigarette materials prima facie evidence of a violation of the act is a denial of due process of law. It is competent for the legislature to make proof of one fact prima facie evidence of another fact essential to the guilt of the accused, wheré the fact presumed has a fair relation to or some natural connection with the fact to be proven. (The State v. Sheppard, 64 Kan. 451, 67 Pac. 870; 12 C. J. 1205.) The term prima facie evidence carries the inference that such evidence may be rebutted and overcome, and notwithstanding the rule, an accused has the opportunity to submit his evidence and make a full defense. The verdict must rest üpon all the evidence which must establish his guilt beyond a reasonable doubt. There is a natural connection between the possession of the prohibited articles and the sale of them, and also of the keeping of them for sale or free distribution. The direct evidence abundantly sustained the charges upon which ' the defendant was convicted and the instruction calling the attention of the jury to the statutory rule of evidence did not trench upon his constitutional rights.
There is nothing substantial in the objection that the court refused to require the county attorney to elect upon which sales he would rely for a conviction. The information charged specific sales to particular persons and there was nothing in the evidence to hamper or mislead the defendant or to make an election necessary.
Neither is there any ground for the contention that the evidence does not sustain the conviction under the thirteenth count.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was a suit to reform a written lease and to enjoin the tenant from entering upon some lands which by mistake had been included in the lease.
The plaintiffs held a public auction at which they offered one hundred acres of land for sale, and as an inducement to its sale they offered to give the purchaser a lease for five years on some adjacent arable land and on sixty acres of pasture land. The plaintiff’s pasture contained about one hundred acres, but they intended to reserve forty acres of the pasture for the purpose of breaking it and putting it into crops themselves. The defendant was the successful bidder for the land offered for sale. When the lease was prepared, no reservation of the forty acres of the pasture land which plaintiffs intended to break and farm themselves was inserted in the lease. During the first year covered by the lease, however, the plaintiffs did retain possession of the forty acres, and did break it and farm it. Next year, the tenant attempted to commence farming operations. Plaintiffs objected, and he advised them to read the lease.' They did, and this lawsuit followed. The defendant’s answer denied the pertinent matters pleaded by plaintiffs; and alleged that the forty acres was only withheld from the lease for one year so as to enable plaintiffs to break it and prepare it for tillage by the tenant for the remainder of the five-year •term. Defendant also cross claimed for damages for his exclusion from the forty acres during the second year of the lease.
A jury was called to advise the trial court on the equitable issues and to determine the issue of damages. The special findings, and a verdict for $1 as damages, were in favor of defendant. Defendant’s motion for judgment on the findings and verdict was denied; and plaintiffs’ motion for a new trial was granted.
Defendant appeals. He contends that a contract cannot be reformed for the mistake of one party only; that he fully understood the contract; and that there was no mutual mistake. But the trial court may have thought he was not telling the truth about the matter. Perhaps the trial court did not fully believe the testimony for either party. We cannot tell what prompted the trial court to grant a new trial. The plaintiffs’ evidence was sufficient to prove a mutual mistake — if the trial court gave it full credence. Perhaps the court did believe it; perhaps the trial court heartily disagreed with the findings of its advisory jury. One thing is certain: the written contract did not express the terms of the parties. It did not cover the reservation of the forty acres even for the one year which de fendant admits to have been reserved. There was to be a reservation of that forty acres, whether for the full term of the lease or for one year only; and to that extent there was a mutual mistake. Moreover, no written instrument which fails to truly recite the bargain of the parties could ever be reformed for mutual mistake if the one who resists its reformation could defeat its correction by his mere self-serving avowal that there was no mistake on his part. While the evidence to justify a reformation of a written instrument on the ground of mutual mistake must be clear, decisive and convincing, yet it. may be so proved — and usually has to be — without the evidence of- the party who resists and seeks to profit by the alleged mutual mistake. Furthermore, if indeed the forty acres was to be-reserved for the full duration of the lease, and the defendant noticed the mistake of the scrivener at the time the lease was executed, and if he purposely or thoughtlessly kept silent about it, the want of mutuality in the matter of the mistake would not stay the hand of a court of equity to correct the writing, as the attitude of defendant in such case would be treated as a constructive fraud on his part. (Cox v. Beard, 75 Kan. 369, 89 Pac. 671; Simpson Plumbing & Heating Co. v. Geschke, 76 N. J. Eq. 475.)
The other matters urged by defendant need no discussion now. If the trial court, for any reason covered by the code (Civ. Code, §§ 305-308), was dissatisfied with the jury’s verdict, it was its duty to set that verdict aside, and to grant a new trial. Ordinarily it is only when the trial court indicates the exclusive and specific ground upon which a new trial is granted, and that ground happens to be one which this court is in as good a position to consider and determine as the trial court, that reversible error can be effectively based upon the granting of a new trial. (Ryan v. Topeka Bridge Company, 7 Kan. 207; Howell v. Pugh, 25 Kan. 96; City of Sedan v. Church, 29 Kan. 190; Sanders v. Wakefield, 41 Kan. 11, 14 Pac. 251; Manufacturing Co. v. Bowers, 71 Kan. 260, 80 Pac. 565; Goehenour v. Construction Co., 104 Kan. 808, 810, 180 Pac. 776; Moffatt v. Fouts, 105 Kan. 58, 181 Pac. 557.)
Affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the bank to recover on promissory notes given by Elizabeth Pirotte, and to appropriate land conveyed by Elizabeth Pirotte to Mary Pirotte in payment of the sum recovered. The bank prevailed, and the administratrix of Elizabeth Pirotte who died after judgment was rendered against her, and Mary Pirotte, appeal.
Judgment was rendered against Elizabeth Pirotte on the pleadings. Elizabeth Pirotte’s son, Peter J. Pirotte, borrowed money from the bank, and she signed his notes and renewal notes given from time to time. The answer alleged the bank said to Elizabeth Pirotte that two signatures were required on the notes to make them bankable paper, that her signature was a formal matter to show to the bank examiner, and that she would not be liable for the notes. These allegations did not constitute a defense. If any one was accommodated it was Peter,. not the bank, and the parol-evidence rule forbade proof of the supposed defense (Bank v. Watson, 99 Kan. 686, 163 Pac. 637). The answer further alleged that the bank said the notes would be paid out of property of Peter J. Pirotte sufficient for the purpose, and agreed that Elizabeth Pirotte would not be liable for their payment. Allegations of that kind do not bring the case within the rule of Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016, and oral evidence offered to sustain the supposed defense would merely contradict the writings (Underwood v. Viles, 106 Kan. 287, 187 Pac. 881, and cases cited in the opinion) . Charges of fraud were scattered plentifully throughout the answer. They did not change the essential nature of the supposed defenses (Stevens v. Inch, 98 Kan. 306, 158 Pac. 43). The answer stated no defense, and on April 24, 1919,' judgment was properly rendered against Elizabeth Pirotte and in favor of the bank for $9,923.68.
In July, 1917, Mary Pirotte took from her mother, Elizabeth Pirotte, deeds of all of Elizabeth Pirotte’s real estate, which was all the property she possessed. Mary Pirotte testified as follows:
“Q. As I understand you now, Miss Pirotte, your mother has no property at all in her own name? A. No, sir.
“Q. None whatever? A. No, sir.
“Q. And the property interests that she did have were entirely conveyed to you? A. Yes, sir.
“Q. And you have all of that property? A. Yes, sir.
“Q. In case of her death there would be no estate to distribute among-the other children? A. No, sir.”
The consideration for the deeds was made up of the following items:
1. Three thousand three hundred and fifteen dollars loaned by Mary Pirotte to her father. Her father died in 1913. She made no claim against his estate, there was no evidence that Elizabeth Pirotte was liable in any way for payment of the debt, and at the time the deeds were made the debt was not legally collectable from anybody.
2. Three thousand and thirty-five dollars loaned by Mary Pirotte to her mother before the deeds were executed.
3. One thousand five hundred dollars owed by Elizabeth Pirotte to her son Peter, which Mary Pirotte assumed and agreed to pay. In her answer Mary Pirotte ácknowledged liability to the plaintiff for this sum.
4. An agreement by Mary Pirotte to support Elizabeth Pirotte while she lived, and to furnish her such medical aid, nursing, hospital and other care, as she might require. At the time of the trial, which occurred on April 24 and 25,1919, Mary Pirotte had advanced the sum of $3,450 under this agreement. The judgment against Mary Pirotte was rendered on April 29, 1919, and on that day Elizabeth Pirotte died.
The court found the parties to the deeds did not actually intend to hinder, delay or defraud Elizabeth Pirotte’s creditors; but after adjudging that Mary Pirotte should pay the bank the $1,500 item, the court gave her a first lien for $9,800, the full amount of all her loans and advancements, instead of absolute title under her deeds. After providing that the bank should first exhaust some property which Peter Pirotte had conveyed to a trustee for the bank’s benefit, the bank was given a second lien. Mary Pirotte complains of this judgment.
It may be conceded the judgment was erroneous, but not as against Mary Pirotte. The evidence disclosed that Elizabeth Pirotte was insolvent, and the deeds, though made and accepted without fraudulent intent, were fraudulent in law, because they appropriated property of Elizabeth Pirotte to payment of a debt she did not owe. Besides that, as to the bank, the agreement to support constituted a mere debt due to Elizabeth Pirotte, and the bank was privileged to resort to the land in Mary Pirotte’s hands to the extent of its value in excess of the consideration actually paid (Farlin v. Sook, 30 Kan. 401, 1 Pac. 123).
Some questions of practice are raised by the defendants. It is not necessary to discuss them. The defendants suffered no prejudice to their substantial rights. In this connection it may be observed that the interest of the administratrix in this litigation is quite platonic. She has been careful not to oppose Mary Pirotte. Should the administratrix win, she would not have a penny’s worth of property to administer. The district court treated Mary Pirotte with remarkable leniency, and if the strict legality for which she argues were applied to her, she would come out of a second trial with a second lien.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs recovered judgment for the damages sustained by them on account of the loss of a traction engine and threshing machine, and the defendant appeals. This is the second time this action has been in this court, (Thompson v. Traction Co., 103 Kan. 104, 172 Pac. 990.)
The facts disclosed by the evidence as abstracted in the present appeal are not substantially different from those set out in the opinion on the former appeal, but some different questions are argued. The main facts material for an understanding of the questions argued by the defendant are that it maintained an oil pipe line on the south side of a public highway in Montgomery county; that the pipe line was laid on the top ‘of the ground; that an inspection of the ground would have disclosed that the pipe line was there; that the plaintiffs were engaged in threshing grain; that they desired to move their machinery, a traction engine and a threshing machine, from the public road into a field adjoining the road on the south; that when for that purpose they attempted to drive out of the road into the field, they drove across the pipe line; that in so doing the engine broke the pipe; that the oil which was' being pumped through the pipe escaped therefrom and was ignited by the fire in the engine; and that the engine and threshing machine were destroyed by the fire.
1. The first question argued by the defendant is that “the court erred in overruling the demurrer of the appellant to the evidence of .the appellees.” This argument is based on the contention that the evidence did not show that the pipe line was in the highway. The plaintiffs’ evidence tended to show that the place was a public highway; that there was a fence along the south side of the highway; and that the pipe line was between the fence and the traveled portion of the road. That evidence was sufficient to compel its submission to the jury, justified overruling the demurrer to the evidence, and brings the present situation within the terms of the decision rendered on the former appeal.
2. A second contention is that “the court erred in the admission of evidence as to the value of the threshing machine.” Henry Behner, who had owned and' operated a threshing machine for a number of years, testified:
“The machine had run the eighth or ninth season. I think $1,500 would be a fair price for it. Threshing machines do not have a ready market, and it is hard to sell for ready cash. . . . The front end of the separator was the worst burned. The wind stacker on the back end was hurt very little. At that time a new wind stacker would cost $250. This stacker was practically new.”
D. P. Curlis, a dealer in machinery, testified:
“I am familiar with the fair and reasonable value of new, rebuilt and secondhand machinery. . . .
“Q. Mr. Curlis you may state whether or not this machine, after it had been repaired, is what you would call a rebuilt machine or not. A. It undoubtedly was a rebuilt machine.
“Q. I will ask you whether or not you examined it? A. No sir, I did not.
“Q. That is, not carefully? A. Not carefully; no, sir.
“Mr. Stevens: What do you mean by that? Do you mean that you did examine it or didn’t examine it? A. I mean that I did not go over this machine and look at each and every part, but I do mean I was to the machine and saw it in operation.
“Mr. Lomax: Now from what you saw and knew of that machine, taking into consideration the repairs it had on it that spring, would you have an opinion as to its fair, reasonable market value? A. I have my own judgment as to its value.
“Q. What is your judgment as to its fair, reasonable market value? A. I would consider it an easy sale on $2,700 or $2,800.
“Q. Do you think that he could sell it yet for cash on the 21st day of August, 1915, for $2,800? A. I’ll answer that in this way. We sell these threshing machines mostly on time. We never have sold except one for cash. It’s a time price on threshing machines. As one of the witnesses I heard testify, a man was always poor that owned a threshing machine.
“I was out there in October or November, 1915, and looked at the machine.
“Q. Have you an opinion as to what the cost would be to rebuild it? . . . A. I’m speaking of the engine, now, understand. Engine alone. And the expert that I took there said that it would cost about $1,200.”
J. A. Thompson, one of the plaintiffs, testified:
“I would not say that the outfit was worth more than. $1,500 in 1915. After the fire we went off and left the outfit where it burned.”
One witness, a junk dealer, testified that the engine and threshing machine were worth $50 as junk. That witness further testified:
“I didn’t pay much attention to the separator. All I saw was burned up and twisted. I didn’t pay much attention to it. The iron on the separator I couldn’t use because it is most all steel and I use most always cast iron.”
That evidence was sufficient to enable the jury to determine, the value of the engine and threshing machine. While some of the evidence introduced to establish these facts may have been incompetent, yet the court is unable to see wherein the admission of that evidence materially prejudiced any substantial right of the defendant.
3. Another complaint by the defendant is that the court refused to give certain requested instructions. Those instructions were as follows:
“One of the contentions of the defendant is that the pipe line was plainly visible across the gap through which the plaintiffs attempted to drive their threshing outfit. If you find and believe from the evidence that said pipe line or a substantial portion thereof, was visible where it extended across the gap through which the plaintiffs attempted to drive their threshing outfit, and you further find and believe from the evidence that the plaintiffs did not see said pipe line, or having seen it, failed to properly protect it by placing planks over it or covering it with dirt, or in some other manner protecting it, and then attempted to drive their threshing oufit over the same, the. plaintiffs cannot recover in this case and your verdict will be for the defendant and against the plaintiffs. And in this connection you are instructed that if a thing is visible and within the range of vision of the person complaining, that it makes no difference whether he saw it or did not see it, for-the law presumes that he saw what he should or could have seen had he looked and does not excuse him because he did npt see it.”
“You are instructed that in this country a vast number of pipe lines conveying oil and natural gas are maintained over, along and across the public highways within the same. If you find and "believe from the evidence in the case that the plaintiffs, or either of them, knew of the custom and practice, of laying pipe lines conveying oil and natural gas over, across, under or along the public highway, then it would be their duty to exercise care and caution in attempting to use that portion of the highway not worked or traveled, for the purpose of ascertaining whether such unworked or untraveled portion was reasonably safe for the passage of their threshing outfit, and if you find and believe from the evidence in-this case that they did not exercise such ordinary care as herein defined to you, and by reason thereof ran over the pipe line of the defendant, if you find that the defendant owned and controlled the pipe line, in question, and their threshing outfit was destroyed, damaged, or injured, then they are guilty of such contributory negligence as will bar them from a recovery in this action, and your verdict will be for the defendant and against the plaintiffs.”
The principle embodied in these instructions is analagous to that part of the railroad law of this state applicable to one who, on a public highway, is about to cross a railroad track. The principle does not appear to be applicable to one who is driving out of a public highway into ah adjoining field. When this action was here before, this court said:
“In taking their threshing outfit into a field adjoining the highway, in order to thresh a crop, the' plaintiffs were entitled to use not only the worn part of the highway but also the whole width of the same so far as it was necessary.” (Thompson v. Traction Co., 103 Kan. 104, 172 Pac. 990. syl. ¶ 2.)
If the plaintiffs had the right to use the entire highway, they had the right to assume that they could leave the traveled road and go into the adjoining field with safety, except that they must not encounter such dangers as were manifest by a casual observation of the road. They were not bound to use the precautions that a traveler must use when he is about to cross a railroad track, and the court cannot say as a matter of law that they were guilty of contributory negligence for failing to look for, or see, danger, or for failing to protect their machinery against the pipe line if they saw it. In Murphy v. Gas & Oil Co., 96 Kan. 321, 150 Pac. 581, the plaintiff was injured while driving an engine and a threshing-machine out of a field into a public road, where he broke a gas pipe line. The escaping gas became ignited and seriously injured him. This court there said:
“The plaintiff had a right to assume that the highway was safe from one side to the other. He was under no obligation to make an examination of the highway for the purpose of ascertaining whether or not gas pipes were laid thereon. The evidence shows that neither the plaintiff nor his father knew of the existence of the gas pipe before the explosion.” (p. 331.)
In Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907, this language was used:
“To be free from contributory negligence it is not necessary that one using a highway known by him to be defective exercise more than ordinary care, but he must adapt his conduct to that condition and employ such care as may justly be regarded as ordinary, in view of his knowledge of such defect.” (syl. ¶ 6.)
The most that can be said in favor of this contention of. the defendant, even if the plaintiffs saw the pipe line, is that different minds might reasonably come to different conclusions concerning the contributory negligence of the plaintiffs. This then presented a question for the jury to determine. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; Kemp v. Railway Co., 91 Kan. 477, 479, 138 Pac. 621; Wade v. Electric Co., 94 Kan. 462, 469, 147 Pac. 63; Wade v. Electric Co., 98 Kan. 366, 371, 158 Pac. 28.) The instructions of the court properly submitted to the jury the question of contributory negligence, and it was not error to.ref use to give the instructions requested by the defendant.
4. The fourth proposition argued is that “the court erred in refusing to sustain the motion of the appellant for judgment in its favor on the special findings of the jury.” The special findings of the jury were as follows:
“1. Do you find that just before plaintiffs attempted to drive their threshing machine across the pipe line of the defendant at the entrance of Henry Burns’s field, the one operating the engine walked over to the gap and looked at said line? 1. No.
“2. If you find for the plaintiffs do you allow them anything for loss of profits on threshing for which they had no contracts? 2. No.
“3. What, if anything, did the plaintiffs or either of them do to protect the line from injury when they attempted to drive their machine over and across the same? 3. Nothing.
“4. Was the public highway mentioned in plaintiff’s petition a regularly laid out highway? 4. Yes.
“5. If you answer to the above question ‘Yes,’ how wide is such highway? 5. Fence'.
“6. How far, in feet, was it from the center of the worked part of the highway to the pipe line where it crossed the gap through which plaintiffs tried to drive their threshing outfit? 6. On or about 28 feet.
“7. How long had the plaintiffs owned and operated the machine? 7. Nine years.
“8. What was the assessed value of the threshing outfit in 1915? 8. Don’t know.
“9. Could the plaintiffs by the exercise of ordinary care on their part have protected the line so as to prevent breaking it when they drove their machine over it? 9. Yes, had he known it was there.
“10. How much do you allow the plaintiffs for and as the value of their threshing outfit? 10. $1,500.00.”
The argument of the defendant is based on the answers to questions numbered 5 and 6 and on the record evidence introduced by it to show that the established road was forty feet wide. The defendant contends that under the sixth finding the pipe line could not have been in the public highway. The difficulty with this.contention is that the evidence introduced by the defendant showed that the pipe line was twenty-eight feet from the center of the traveled road, but the evidence did not show that the center of the traveled road was the center of the highway. The pipe line may have been twenty-eight feet from the center of the traveled roadway and yet have been within the established highway. A careful reading of the findings does not disclose any reason for rendering judgment in favor of the defendant.
5. The last matter urged is “that the court erred in overruling the defendant’s motion for a new trial.” This is based on the argument advanced to support the other contentions • of the defendant and must follow the conclusion reached thereon. It has not been shown that there was error in overruling the motion for a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit involves the question of primary and secondary liabilities between the defendants in a foreclosure suit, with Avhich the successful plaintiff is not concerned.
The defendant, Dora E. Harvey, owned a house and lot in Holton. She desired to procure a homestead in Colorado. She had a friend, B. C. Hamilton, in whom she fully confided, and he undertook to aid her and to guard her interest in that project. With his help and approval, she made a deal with one Ptomey Avhereby she obtained a relinquishment of a Colorado homestead, in consideration of which she agreed to convey her Holton property to Ptomey, but before conveying it to him she was to mortgage the Holton property and give part of the money borrowed thereon to Ptomey and keep pai't of it herself, and as she did not care to trust to strangers it was also agreed that her friend Hamilton should take the title to the Holton property after it was mortgaged.
The arrangements leading up to this agreement were made in a bank in Colorado, and this lawsuit arises on the question whether the agreement covered the matter of the assumption of the mortgage debt by Mrs. Harvey’s grantees. After receiving the conveyance Hamilton paid half the semiannual interest on the mortgage on two occasions, and made inquiry of the mortgagee as to whether Ptomey was likewise paying half of it, and on a subsequent occasion Hamilton paid -all the semiannual interest then due.
Later there was default; the mortgagee brought suit to foreclose, Mrs. Harvey and Hamilton being the defendants. Mrs. Harvey pleaded that her codefendant assumed and agreed to pay the mortgage, and that he was primarily liable. Hamilton admitted that he acquired the property after the execution of the mortgage, but denied that he assumed and agreed to pay it.
On this joinder of issues, a jury was waived.and the cause was tried by the court. Judgment was entered for plaintiff; and the court made a finding—
“The court further finds that the allegations and averments made and contained in the answer of Dora E, Harvey with reference to the assumption and agreement to pay said note and mortgage are true and that by reason thereof the said B. C. Hamilton is primarily liable on said indebtedness and the defendant, Dora E. Harvey is liable only as surety.”
Part of the decree reads:
“It is further considered, ordered, adjudged and decreed that if at any time the defendant, Dora E. Harvey, is compelled to pay this judgment or any part thereof, she shall have a judgment over against her eodefendant, B. C. Hamilton, for the amount so paid by her with interest thereon at the rate herein provided.”
The defendant Hamilton assigns various errors which will be noted. His chief complaint relates to the admission of incompetent and prejudicial evidence. The deed conveying the Holton property from Mrs. Harvey to Hamilton merely recited that the conveyance was subject to the mortgage incumbrance. It did not recite that the grantees assumed and agreed to pay the mortgage. Mrs. Harvey was permitted to testify concerning the negotiations leading up to and involved in the transaction.
“Q. What, if anything was said in that conversation about whether Hamilton and Ptomey were to assume this mortgage? ... A. Mr. Hamilton said they would arrange it and have the banker do the business and see it was done straight.
“Q. What was said as to whether they would agree to pay this mortgage? A. They said they accepted the place subject to the mortgage as soon as I could put the mortgage on as I had not done so at that time.
“Q. What did they say as to who was to pay the mortgage, whether you were to pay it or they? A. The banker read the deed after he made it out and I said, ‘will I be responsible for that’ and he said ‘no, they take the responsibility.’ .
“Q. Was anything said at that time about anything else to be put in the deed? ... A. It was supposed to be finished up after I had the mortgage on the place as there was none then. The deed was made out subject to that mortgage but the deed does not show anything there.
“Q. Did Mr. Hamilton in your negotiations out there make any statements wherein he said anything about whether he would or would not assume this mortgage? ... A. So far as I remember just to the effect he as my friend would see everything went perfectly straight and I would have no more responsibility.
“Q. What did Ptomey say about it? . . . A. That’s what they were to do.
“Q. Did he say so? A. Yes.
“Q. Did Hanlilton say they would do that? A. The deed was made, a joint deed.
“Q. What did Hamilton say, did he tell you he would see the mortgage was paid, that he would pay it? A. I cannot say he said he would pay, but said he would see I was fairly dealt with and that they assumed the mortgage.
“Q. Hamilton said that, did he? A. Yes.”
Was this evidence competent? Appellant says it was not pleaded that there was a mistake in the deed, nor was there any allegation or claim of fraud; and he relies on the rule that parol agreements made prior to or contemporaneous with the execution of a written instrument are inadmissible to alter or contradict the terms of that instrument. Undeniably that is a sound rule, and some of the cases cited by appellant seem to have applied it to controversies not easily distinguishable from the case at bar.
On the other hand, however, it must be said that the trial court had ample authority for his ruling that there can be an enforceable parol obligation by a purchaser, of mortgaged property to assume and pay the mortgage.
In Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65, which was a case where the mortgagor of property had sold it to a person who orally agreed to assume and pay the mortgage debt, this court said:
“It has been repeatedly held that parol agreements of this character need not be in writing; that a parol agreement by the purchaser of property to pay the purchase price to a third person in payment of a debt due from his vendor is not within the statute of frauds. (Mfg. Co. v. Burrows, 40 Kan. 361, 19 Pac. 809; Neiswanger v. McClellan, 45 Kan. 599, 26 Pac. 18.) A promise made to a debtor by a third person to pay his debt is not a promise to answer for the debt of another within the statute of frauds and need not be in writing. (Center v. McQuesten, 18 Kan. 476.)” (p.555.)
In Smith v. Kibbe, 104 Kan. 159, 163, 178 Pac. 427, it was said:
“Although the assumption of the debt was not expressly mentioned in the deed executed by Haney to them, the written contract executed in pursuance of a verbal agreement contained an express promise to assume and pay the debt. This promise and assumption was just as binding as if it had constituted a provision of the deed. To be valid it was not essential that the agreement be a part of the deed, nor that the promisor should have signed any writing.”
In Wilson v. King, 23 N. J. Eq., 150, the first paragraph of the syllabus reads:
“A parol agreement by tbe grantee, at the time of talcing a deed, that he would assume a mortgage upon the property as part of the consideration, will be enforced in equity. A covenant in the deed that the premises are free from encumbrances, or any other covenant, will not estop the assignee of such mortgage from recovering on such undertaking.”
In 1 Jones on Mortgages, section 750, it is said:
“Even a verbal promise by a purchaser to assume and pay a mortgage is valid, and may be enforced in equity not only by the grantor but by the holder of the mortgage. . . .
“The assumption of the payment may be proved by parol evidence, although the deed to the purchaser contains covenants of warranty, and makes no mention of the mortgage, or is simply subject to it.”
In Brosseau v. Lowy, 209 Ill. 405, the syllabus, in part, reads:
“1. If the amount of a prior mortgage is to be paid by a grantee of land as part of the purchase price, he is held to have assumed the debt, and express words to that effect in the deed are unnecessary.
“3. The fact that a mortgage debt upon the property was assumed by the purchaser as part of the consideration may be shown by parol, although the deed contains full covenants of warranty and makes no reference to the mortgage.”
In the body of the opinion, the Illinois court said:
“The appellant, however, contends, that inasmuch as Ziese conveyed his equity to Auguste Boenert ‘by a warranty deed with full covenants, and nothing was said about the payment of encumbrances,’ oral evidence showing that the grantee, Auguste Boenert, assumed the encumbrance was incompetent. The rule of this court is against this contention. In Drury v. Holden, supra, it is stated (p. 137) : ‘It is said the deed from Daggett to Drury contained full covenants of warranty, to which there was no exception; that thereby Drury’s grantor covenanted that he would warrant and defend the lots conveyed, against the. holders of all encumbrances. The covenants extended only to what was conveyed, and that was not the lots absolutely, but the lots subject to the encumbrance.’ And on page 138: ‘It is objected that oral evidence was inadmissible to show that the amount of the encumbrances was deducted from the amount of the purchase price, and allowed to Drury. The evidence being in regard to what constituted the consideration of the deed to Drury and that the amount of the encumbrances was included in and formed a part of the consideration, was clearly competent, under the rule which permits parol evidence upon such subject of the consideration of a deed.’ In Lloyd v Sandusky, 203 Ill. 621, after referring with approval to the ease above quoted, we said (p. 631) : ‘Whenever the question has come before this court it has been uniformly held that the statement of the amount of the consideration and acknowledgment of its receipt in the deed were formal recitals, their only operation, in law, being to prevent a resulting trust, and that they might be explained, varied and contradicted by parol evidence.’ ” (p. 411.)
(See, also, 27 Cyc. 1344, 1345.)
With the competency of the foregoing quoted evidence thus established, the appellant’s next contention, that the assumption of the mortgage by Hamilton was not proved, needs little discussion. Not only did Mrs. Harvey so testify, but her mother likewise testified:
“Q. What, if anything, was said during these negotiations there by Mr. Hamilton with reference to assuming and agreeing to pay this mortgage they wanted Mrs. Harvey to place on the property here?
“Q. What was said? A. They said they expected to pay the mortgage.
“Q. When the banker asked if they expected to pay the mortgage they said they would? A. Yes; that was the understanding.
“Q. Make that statement as near as you remember. A. I told you they said they would put it in when she sent on the mortgage. . . .
“Q. Did Mr. Hamilton assist in this transaction where Mrs. Harvey traded for Colorado land? A. I think he did.
“Q. Do you know? A. We found out afterward; we did not know at the time.
“Q. Was he present when you were out there looking at the land? A. Yes; went with us part of the time; we thought he was our friend.”
A daughter of Mrs. Harvey also testified that on the way back from Colorado she had a conversation with Hamilton:
“Q. What statements, if any, did Hamilton make about whether he agreed to pay the mortgage your mother had put on the place? . . .
A. Mentioned trading off the place for a car and I asked what that had to do with the place, and he said he got one-half for getting the folks out there and keeping them; and I asked what they were going to do about the mortgage, and he said they assumed it; it was to be paid by them.”
The court feels bound to hold that Hamilton’s agreement to pay the mortgage was clearly established by the evidence to which the trial court manifestly gave full credence. In 27 Cyc. 1348, it is said:
“If the deed contains no such clause of covenant, but reliance is placed on a verbal contract to pay the mortgage, it may be established by parol evidence, which, however, must be clear and convincing. The fact that the grantee paid interest or a part of the principal of the debt, or negotiated with the mortgagee in regard to its payment, is pertinent.”
Another contention of appellant is that the court erred in overruling his objection to the introduction of evidence on the ground that Mrs. Harvey’s pleadings had stated no cause of action against him. She pleaded that Hamilton purchased the property from her and that he assumed and agreed to pay the mortgage, and prayed that he be held primarily liable therefor. Hamilton’s answer traversed those allegations. The issue thus raised was virtually all that was in controversy in the lawsuit. Hamilton’s objection to the introduction of evidence to determine that issue 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 to recover on a fraternal beneficiary certificate of life insurance.
In 1913 Thomas E. McDowell became a member of the defendant society and received from it a certificate of insurance in which the defendant, subject to certain conditions and stipulations, bound itself to pay a thousand dollars to McDowell’s widow and children at the time of his death. McDowell died in 1918, and the defendant refused to pay.
As a defense to this action the defendant pleaded that the certificate of insurance issued to McDowell was subject to the by-laws of the defendant society; and, further, that one of these by-laws provided that if an insured member was engaged in any of the enumerated list of hazardous occupations, one of which was employment in an electric current generating plant, he would be required to pay a higher assessment' than the regular rate imposed upon persons employed in ordinary vocations. Another by-law provided that if a member changed his employment to one specified as hazardous, he should notify the clerk of his local organization, and—
“While so engaged in such occupation shall pay on each monthly installment of assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make such payments as above provided shall stand suspended and his beneficiary certificate be null and void.”
The defendant further pleaded that when McDowell applied for membership and insurance in the defendant society he stated that his occupation was that of a common laborer, but that long before his death he had quit the business of that of a common laborer and had engaged in the occupation of an oiler in an electric current generating plant; and that McDowell had never notified the clerk of his camp or lodge of his change of occupation; and that while McDowell was so engaged as an oiler at the electric light plant he continued to pay his monthly installments at the same rate which he had been required to pay while working as a common laborer.
Under the terms of the insured’s application, the certificate of insurance, and the constitution and by-laws of the society, the defendant contended that McDowell stood suspended and that his said beneficiary certificate became and at the time of his death was null and void and of no legal force and effect whatsoever.
Plaintiff’s reply denied that McDowell had changed his occupation, but if he did the fact was known to the defendant, and that the defendant had accepted McDowell’s premiums for insurance with full knowledge at all times of the business and kind of work that he was engaged in; that defendant accepted the premiums without making any demand or claim for any additional or higher premium and that it thereby waived such defense if, in fact, it ever had such defense; and that defend ant was estopped to set up said defense in its answer. Replying further, plaintiff alleged that McDowell came to his death by natural causes and not by reason of his occupation, nor by reason of any work or labor he was at the time or had been performing.
The evidence for the plaintiff was to the effect that McDowell had been a member of the defendant society for about five years; that he had been a laborer by occupation, but that shortly after he joined the society he entered the employment of the local electric light company; and worked for about five years and until his death. Just what was the nature of his employment is not altogether clear. His stepdaughter said he was “an oiler” at the electrical plant, but a witness who had been “Consul Commander” (head officer) of the defendant’s local lodge, and who knew McDowell both as a fellow member and as a workingman, testified that McDowell was first “at one work and then another, around that plant there.” He testified, “When I was down around there I’ve found him to be out digging holes for to set poles ... I refer to the electric light plant at Cherryvale.” Part of the time McDowell worked inside the plant and part of the time outside, but what he did inside the plant was not disclosed.
It was shown that the matter of an extra assessment for hazardous employment had been brought up for discussion in the defendant’s local lodge, and that one or more of the defendant’s responsible officials had explained the matter. One witness testified:
“Well, I don’t know whether this was in the presence of Ed McDowell' or not, but I brought up the question when this ten cent hazardous was put on — and asked the question if this ten cents meant hazardous on all work — the soldier boys and all. And the deputy said it did. That was the — The matter was discussed in camp. I asked the question myself. P. M. Pratt [defendant’s district deputy] answered it.”
The clerk of the local camp, to whom the stipulated notice of change of occupation should have been given by McDowell— if he did change his occupation — testified—
“I was acquainted with . . . McDowell. I have known him ever since I was clerk. I was personally acquainted with him for about two years. I knew when he died. ... I thought he was a common laborer. . I had heard that McDowell was working at the light plant and I knew that he was working around there probably a year before he died. I never saw him work there, but I heard he worked there. I never said anything to him about it. I collected the dues from McDowell, and have a record showing the payment of those dues. I knew he worked around the electric light plant the last year or so. But I didn’t know what he did around there.
“Q. Didn’t know in what capacity he worked? A. No, sir.
“Q. Nor whether he was working inside the plant or not? A. Well, no, I couldn’t answer that for sure. I know he worked around about there, and that is all I know about it.
“McDowell paid the war tax, but he never paid anything on account of the extra hazardous occupation of thirty cents provided by the by-laws.”
It seems to be conceded that some unexplained “ten cent hazardous” assessment levied by the society was paid by McDowell.
The defendant’s evidence disclosed nothing further throwing light on the nature of deceased’s employment. It showed that the deceased had applied for membership insurance as a “common laborer,” and emphasized the stipulations of the application, certificate, constitution and by-laws, which provided that a higher assessment should be paid by members engaged in a hazardous occupation, and that employment in an electric generating plant fell in that category; that none of the officials of the order, at its general headquarters at Omaha, Neb., knew the nature of McDowell’s employment except as stated by himself in his application for insurance.
McDowell was stricken with apoplexy in the railway depot at Cherryvale and died in six hours, and his occupation had no known or conjectured relation thereto.
The general verdict was in favor of the plaintiff, and the jury made certain special findings:
“Q. 1. Did deceased, Thomas E. McDowell, make a written application for membership in the defendant’s order? A. 1. Yes.
“Q. 2. In this written application did said Thomas E. McDowell state that he was by occupation a common laborer? A. 2. Yes.
“Q. 3. Was he at the time of making said statement in fact engaged in working as a common laborer? A. 3. Yes. .
“Q. 5. What was the occupation of said deceased at, or shortly prior to the time of the death? A. 5. Common labor.
“Q. 6. After the issuance of the certificate to him, upon which this suit is brought, did deceased in fact engage in the occupation of being an employee in an electric current generating' plant? A. 6. No.
“Q. 11. Did deceased meet his death while employed in the plant which generated electric current? A. 11. No.”
Judgment was rendered accordingly and defendant appeals.
We cannot agree with defendant’s contention that the evidence “abundantly shows” that the deceased had changed his occupation from that of a common laborer to one more hazardous. While there was testimony that the deceased, in talking to his stepdaughter and to plaintiff, had characterized his employment as “oiler” at the electric plant, no one testified as to the nature of that employment, and it was shown that while he was employed at the electrical plant he was seen on occasions to be working at common labor, such as digging holes for fence posts, out of doors. It would seem that if there had been a clear, decided, and permanent change in the character of the employment of the deceased from that of a common laborer to some sort of more hazardous labor in and about the Cherryvale light plant, and that he was so employed for about five years next preceding his death, that fact could have been conclusively established without difficulty.
Furthermore, if there was such complete and permanent change in the nature of the deceased’s occupation it existed for such a long duration of time, with the knowledge of the local lodge and its officers, that a formal notice by deceased to the defendant’s local camp clerk was unnecessary. The camp clerk did know the nature of his employment; and his testimony, quoted above, is about all the light disclosed by the record as to the nature of the deceased’s employment. If, indeed, the jury had found that the assured had changed his occupation to one specified in the by-laws as being more hazardous and carrying a higher rate of assessment, and continued to pay only the lower rate assessed on a common laborer, and had met his death in the course of such more hazardous employment, a very difficult situation would confront* the plaintiff. (Ridgeway v. Modern Woodmen, 98 Kan. 240, 157 Pac. 1191) ; but as that change of occupation was not established to the satisfaction of the jury, and as McDowell’s death came from natural causes in no way related to his employment, this court can discern no reason for disturbing the judgment.
(McDonald v. Chosen Friends, 78 Cal. 49; Order of Foresters v. Schweitzer, 171 Ill. 325; Brotherhood of Painters, etc., v. Moore, 36 Ind. App. 580; Johnson v. Modern Brotherhood of America, 109 Minn. 288; 29 L. R. A., n. s., 446; Modern Woodmen of America v. Colman, 68 Neb. 660.)
See, also, Modern Woodmen of America v. Lane, 62 Neb. 89; Supreme Lodge K. of H. v. Davis, 26 Colo. 252; Modern Woodmen of America v. Wieland, 109 Ill. App. 340, 351.
Affirmed.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a judgment denying plaintiff specific performance of a contract for the conveyance of real estate.
The land in question consists of a farm of 240 acres in Lyon county which belonged, in his lifetime, to Jonathan J! Whit-more of Logan county, Ohio. He died, and under the terms of his will his executor, William Whitmore, was authorized to sell all the real property of the estate without an order of court. The plaintiff lives near the land in Lyon county, and in his petition alleged that E. Cotton, acting as agent of the executor, and under written authority, sold to plaintiff by written contract the farm, also the wagon scales on the farm, telephone and telephone shares; that in the contract the defendant agreed to give plaintiff possession of the premises on' March 1, 1919; that the written contract was thereafter ratified, confirmed and partly performed by the executor; that plaintiff was at all times ready, willing and able to fully perform all of the terms of the contract on March 1, 1919; and that the defendants, Whitmore, executor, and Cotton, as agent, failed to perform the contract according to its terms and refused to convey the land as agreed and failed to give plaintiff possession; that defendant, W. V. Gibbs, was a tenant in possession of the premises and refused to vacate, and on March 27, 1919, the executor and his agent informed plaintiff that the executor would not be responsible for giving possession of the land; that if plaintiff desired to take the land under the contract he must immediately accept a warranty deed, which deed reserved to defendant Gibbs his share of the growing crops; that for the purpose of procuring money to make the purchase, plaintiff had sold a farm and had negotiated a loan, covering the land in question and other land, and for these reasons and in order to mitigate his damages he was compelled to accept the deed as tendered; that he is entitled to the immediate possession of the premises, has the legal and equitable title thereto, and that the defendants are unlawfully keeping him out of possession. He asked for an order of the court directing the executor, and Cotton, as his agent, to specifically perform the terms of the contract and give him possession of the premises, and that he recover from the executor and Cotton, actual damages in the sum of $1,000 and interest from March 1, 191-9. He also prayed for $200 damages against the defendant Gibbs.
William Whitmore, executor, filed an answer and cross petition. The answer denied that Cotton was the agent of the' executor or that he had authority to represent the executor in any of the matters alleged in the petition, and denied generally the averments of the petition.
For his cross petition the executor alleged that on or about October 1, 1918, E. C. Cotton solicited the price at which the executor would sell the property in controversy; that after considerable correspondence between them relative to the sale of the farm, copies of which were attached to the cross petition, the defendant agreed to sell the farm to Shepherd for $15,600, but at no time agreed to deliver possession of the farm on March 1, or any other time. It was further alleged that Shepherd, the plaintiff, had actual notice and knowledge of the contents of the correspondence between the executor and Cotton, and that defendant Gibbs was in possession of the land under a lease terminating March 1, 1919; that Shepherd, the plaintiff, had knowledge of the rights of Gibbs as tenant in the land; and that as executor he at no time entered into or executed a written contract for the sale of the land. The only agreement he had was contained in the letters and telegrams, copies of which were attached. The cross petition further alleged that in keeping with the correspondence, Whitmore had executed an executor’s deed conveying the lands to the plaintiff, deposited the same in a bank at Bellefontaine, Ohio, to be forwarded to the Miller State ■ Bank, of which Cotton was cashier, with draft on the Miller State Bank for the sum of $15,600; that the deed and draft were forwarded to the bank with instructions to deliver the deed to Shepherd upon his payment to the bank of $15,600; that Cotton, acting for himself, and as agent of plaintiff, and as officer of the bank, delivered the deed to the plaintiff and received from him $15,600, and on the same day made a draft for that sum payable to the People’s National Bank of Bellefontaine, Ohio, and deposited the same in the post office at Miller, Kan., of which J. R. Shepherd, son of the plaintiff, was postmaster, who, acting in collusion with plaintiff for the purpose of cheating and defrauding the defendant executor and the estate of Jonathan J. Whitmore, deceased, caused the draft to remain in the post office at Miller for two days after it had been regularly mailed, and that by false statements in affidavits, plaintiff procured garnishment proceedings and a restraining order to be served on Cotton, who in the meantime procured from the postmaster the return of the draft, thereby preventing the executor from receiving the purchase money for the farm. He alleged that the plaintiff had never accepted the terms of the defendant’s offer to sell the farm, and he, as executor, elected to withdraw his offer to sell the farm to plaintiff, and asked for the cancellation of the deed and the release of a mortgage placed on the land by Shepherd, and that the $15,600 in the hands of the Miller State Bank be paid into court to satisfy the mortgage. Attached to the answer and cross petition were copies of the executor’s deed and the correspondence which passed between the executor and Cotton.
The court appointed a receiver to take control of the real estate. The case was tried to the court, and judgment was rendered in favor of the Whitmore estate and against the plaintiff. William Whitmore, the executor of the estate, died, and the judgment recites that his successors have been substituted as defendants. The court held there was no contract for the sale of the land between plaintiff and the executor, and that the executor’s deed was never delivered, and it was ordered canceled. The mortgage placed on the land by the plaintiff was ordered released.
The principal error complained of is the finding of the court that there was nothing in the correspondence authorizing Cotton to enter into any contract on behalf of the executor. It is conceded that power to sell, as ordinarily applied to real-estate brokers, means authority to find a purchaser, and not authority to close the deal and make a contract of sale, but it is insisted that this rule cannot be applied in the present case.
After preliminary correspondence between the executor and Cotton, beginning in July, 1918, the executor fixed a price on the'land and requested Cotton if he had any purchasers at that figure “to proceed to do business” and the executor would pay him the usual commission. On October 23, in answer to one of Cotton’s letters, he wrote:
“I have decided to say that if you can sell to this party at $70 per acre . to let it go.”
On January 18, 1919, Cotton wrote to the executor:
“I have sold the farm at $65 per acre, or a total of $15,600, a payment of $1,000 cash and the balance of $14,600 will be paid March 1st, 1919. I will have to get a loan on the farm for the man and will need the abstract the first thing. Possession is to be given March 1st and the deal completed.”
On January 20, the executor wrote:
“You said you had sold the farm but did not say anything about Mr. Gibbs and the wheat, and I am wondering if you had an understanding with him. . . . We are enclosing the abstract. Please let us know at once what arrangements you have made with Mr. Gibbs.”
This was followed three days later by a telegram to Cotton, as follows:
“Don’t close any deal for sale of farm without written instructions from mef’
And on the day following, the executor wrote:
“Confirming my telegram to you of January 28d, 1919, I desire to say that I cannot comply with your request to sell the Kansas farm and agree to give possession of same March 1st, 1919, or until such time as I have the farm in my possession.”
On January 24, Cotton wrote the executor, saying:
“Received the abstract to the land and wire message. We have made contract of sale to the farm as stated in our previous letter receiving payment of $1,000 down and the balance to be paid March 1st, when possession is given. ... I suppose Mr. Gibbs is writing you all kinds of letters threatening to make you trouble and collect damages and the like. Do not get scared. ... He has ho need to kick as the man will pay him what he has put in to the wheat sown or take the share agréed upon. He will treat him all right he tells me.”
On the 27th of January, the executor wrote to Cotton:
“Your letters received three in a bunch to-day, which eases up matters with us very much. We were very uneasy not knowing what claims Mr. Gibbs might put up to the place, fearing he might have picked up something from our correspondence with him about the wheat that would give him permission to hold it for another year. The Gibbs deal is all that we know of that might happen to cause trouble in getting this sale through and we believe from your letters that everything will be all right.”
On January 19, Cotton wrote to the executor:
“Mr. J. M. Shepherd, the man who purchased the place, was in yesterday and said he had talked with Mr. Gibbs, and we would have no trouble at all with him, he said, as he understood the situation better now. ... I am arranging matters so as to run smoothly and at the time that we close the deal March first the land will be turned over peaceably to Mr. Shepherd and the cash will be paid to the estate in full, $15,600.”
In a letter dated February 12, the executor stated to Cotton:
“Mr. Gibbs wrote regarding the wheat. Our agreement with him was, ‘That if he put out any wheat he was to have the privilege of returning to harvest and thrash the same and to give us or the purchaser the customary grain rental.’ This agreement will have to be made a part of the deed. If Mr. Gibbs and the purchaser make a different agreement that will be their deal.”
On March 1, the attorneys for the executor sent to Cotton certified copies of the will and probate proceedings in the Whitmore estate, and on the same day sent direct to the Miller State Bank, as an ordinary collection,, an executor’s deed with draft attached for $15,600, the deed to be delivered upon payment of the draft. The executor’s deed contained the statement that “The tenant’s share of the now growing wheat crop is hereby reserved to the tenant, W. V. Gibbs.” The next day the executor wired Cotton as follows:
“Sent deed yesterday. Hold same until I write you.”
On the same day he wrote:
“In regard to deed which I asked you to hold, I want you to hold the same until I have a better understanding regards the wheat. ... I don’t want this deed turned over to Mr. Shepherd until the wheat question has been settled. As regards the chattels which you put in the contract I can’t say yet what I can do regarding the same. The telephone we can’t deliver as it belongs to Gibbs. As regards the telephone right and line we can’t say about this until we hear from Mr. Shultz, who had it put in & paid for the same.' Don’t deliver this deed until I notify you to do so.”
The next day Cotton wired:
“Your telegram at hand. Will hold deed as instructed.”
March 10, the executor telegraphed the bank to deliver the deed to Shepherd upon payment of the draft attached to the deed. On March 17, Cotton wrote that—
“The possession of the farm is holding the closing of the deal up. . . . Let me hear what you say in regard to the matter.”
On March 19, the attorneys for the executor wrote the Miller State Bank that unless the draft was paid at once to return the deed with draft to the bank in Ohio from which it had been received. On the same day Cotton wrote the executor, “We have had a lawyer look at our contract with Mr. Gibbs,” and that in the opinion of the lawyer there would have to be an arbitration, and said:
“Now as it seems impossible for Mr. Shepherd and Mr. Gibbs to agree upon the value of the wheat and Mr. Gibbs still is in possession of the place it will be necessary for you to follow the contract and arbitrate with him and pay him oif for the wheat before you can get possession.”
In the meantime the plaintiff had employed attorneys and had verified the petition to be filed in this case. Cotton -was a witness, and admitted that on March 22 he was in the office of plaintiff’s attorneys, where he wrote a letter to the executor, inclosing an agreement to guarantee, Shepherd possession of the farm, in which he told the executor to sign and return the agreement and thereupon Shepherd would pay in the full price of the farm, which would be sent to the executor at once. He. testified that Shepherd paid the money into the bank, and that he, as cashier, sent a draft for the amount to the bank at Bellefontaine, Ohio; that he deposited the letter in the post office on Friday, the 28th, and on the next morning ordered the postmaster to hold the letter; that the postmaster told him Saturday evening that he should either send the letter or return it; that no mail leaves Miller on Sunday, and that on Monday morning before the mail went out witness went to the post office and got the letter back. He was served with a restraining order on March 28, after he had deposited the letter in the post office. On March 29, he wrote the executor
“Mr. Shepherd paid for the farm yesterday and took the deed and immediately, while we were in the act of mailing a draft, ... he had papers served on us restraining us from making payment.”
Later on he wrote suggesting that the executor come or send someone to settle matters with Gibbs so as to give Mr. Shepherd possession before the trial and save extra expense. In a letter in reply, the executor sharply criticised his actions. Cotton answered, stating that he mailed the letter March 28, “but took it back at the order of the court and will forward it as soon as released.”
The trial court held that there was nothing in the correspondence or in the understanding between the parties that authorized Cotton to enter into any contract for the executor; that the evidence showed that neither the contract nor a copy of it was ever sent to the executor, and that none of the details were ever submitted to him. In our opinion the correspondence shows nothing more than the usual and ordinary listing of real estate with a broker for sale, giving him authority to find a purchaser. The question has been before this court so often that further discussion of it would be superfluous. In the recent case of Haggart v. King, ante, p. 75, it was said in Ihe opinion:
“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.) ” (p. 77.)
Aside from a total want of authority on the part of Cotton to make a contract for the sale of the land binding upon the executor, he had no authority to make a contract that required possession to be given on March 1, or for a warranty deed, or to contract for the sale of personal property, something not mentioned in the correspondence.
It is contended, however, that the executor ratified the contract, and that the estate is estopped to deny Cotton’s authority to enter into it. We are unable to find in the correspondence anything to indicate that the executor knew until after the suit was brought that any written contract had been entered into; nothing to indicate that such contract, or a copy of it, had ever been sent to him. Nor can it be said that he ever consented to give possession on March 1, except upon the condition, which he insisted upon all through the correspondence, that the purchaser settle with the tenant. In the first letter written after notice that a purchaser had been found, the executor said:
“I am wondering if you had an understanding with him [Gibbs].”
Time and again, he was assured by Cotton that he need not be alarmed about any complications with Gibbs — that everything would be arranged satisfactorily to the tenant. Becoming apprehensive that there might still be trouble with the tenant, the executor telegraphed to Cotton:
“Do not close any deal for sale of farm without written instructions from me.”
The telegram was confirmed by a letter in which the executor said that he could not comply with Cotton’s request to sell the farm and agree to give possession March 1. In response he whs assured by Cotton that he had been informed by the purchaser that he would treat the tenant all right. In all correspondence the executor manifested a desire, not only to protect the tenant from any annoyance, but a desire not to be involved in any way in litigation or trouble arising out of any attitude the tenant might take with respect to possession, and as late as January 27 the executor wrote:
“The Gibbs deal is all that we know of that might happen to cause trouble in getting this sale through and we believe from your letters that everything will be all right.”
He was again assured that Cotton was arranging matters “to run smoothly,” and that on March 1, “the land will be turned over peaceably to Mr. Shepherd and the cash will be paid to the estate in full.” Full knowledge of all the material facts was essential before the doctrine of ratification could apply. Upon the question of ratification, the court said, in ruling upon the motion for a new trial:
“I have found nothing in the correspondence that would indicate a ratification, or an intention to ratify the contract, on the part of the executor, as claimed.”
We think the trial court took the proper view of the question of ratification, and that the evidence abundantly sustains the holding that in sending the deed to the bank to be delivered to the plaintiff, the executor was relying upon Cotton’s assurances that there would be no trouble or complications with the tenant, and that as soon as he discovered the truth, he promptly wired the bank to return the deed unless it was accepted immediately.
Finally, it is insisted by plaintiff that he bought the land and paid for it, that the executor sent the deed to the bank with directions to deliver to him upon payment of the agreed price, and that while he may not be entitled to a decree for specific performance, he is entitled to hold the deed, and that the court erred in ordering its cancellation. The view of the court on this question, after having heard the oral testimony of Shepherd and Cotton, appears from the court’s language in overruling the motion for a new trial:
“As to the argument that Shepherd bought the land and paid for it under the proposition that the executor made: He did not do that in good faith; Shepherd never intended to purchase under the conditions laid down by the executor; he never accepted the proposition that was made by the executor.
“It is true that Shepherd paid his money into the bank, but before he did so he made preparation . . . immediately to sue the executor and tie up that money so that it could not reach the executor. There is no question at all about that. . . .
“Mr. Shepherd’s only reason for making the payment was to get possession of that deed, get it of record and sue the executor to make him “come through” with the contract that he (Shepherd) had proposed in the first instance.
“It developed in the trial of this case on the receivership that Shepherd’s son was postmaster at Miller, a town in the vicinity of this property. The plan was so laid that, when Shepherd paid the money, and the draft was issued by the bank, and the letter containing the draft was placed in the post office, it lay in the post office long after it should have started to its destination, and- that Cotton, for some reason, withdrew that letter, took it back to the bank and held it in his possession.
“If Shepherd, in good faith, had intended to accept and carry out the contract that the executor had proposed to him, he would have paid his money and received the deed and that would have been the end of it. . . .
“I believe Shepherd has not acted in good faith . . . and that he has placed himself in a position where he cannot plead equities.”
Doubtless the court was impressed with the evidence of collusion between plaintiff and Cotton, aided by plaintiff’s son, who was postmaster, and by the bank, to allow plaintiff to secure possession of the deed by a colorable payment of the money into the bank with an understanding that it would be tied up by a suit already agreed upon. Neither the bank nor Cotton had authority to enter into any arrangement to aid plaintiff in a scheme to involve the estate in this litigation. Both Cotton and the bank were the agents of the executor, and good faith required Cotton to protect the interests of the executor. The evidence was sufficient to sustain a finding that he not only failed to do this, but that he rendered assistance to plaintiff to enable the latter to gain an advantage over the executor. The court heard considerable oral testimony, including that of plaintiff, who testified that he paid Cotton the money for the deed, had read the deed before receiving it, and was familiar with it; that before Cotton delivered the deed he understood the estate would not attempt to furnish him possession of the land, and that he had to accept the deed and pay the money in order to hold the farm, and that he “supposed” arrangements were made for a restraining order to tie up the money in the hands of the bank. There was the testimony of Cotton to the effect that before he entered into the written contract with Shepherd he informed him of the executor’s statement in regard to the claims of the tenant, and that he had explained to him the position of the estate with regard to the wheat and to. Gibbs’ right in the land, and that Shepherd promised to do the “fair, square thing,” and to pay Gibbs what the wheat was. worth. To some extent this was contradicted by Shepherd, who testified he had never seen any of the letters and never knew what their contents were, but the court heard the witnesses and reached the conclusion that Shepherd had not acted in good faith, and that there was collusion between him and the executor’s agent. Under these circumstances, in our opinion, the court was justified in ordering the executor’s deed cancelled and in holding that plaintiff was not in a position to ask equitable relief.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
Mahlon Camp, the surviving husband of Mary J. Camp, deceased, appeals from a judgment in favor of the plaintiff against the estate of Mary J. Camp for $11,286. The action was tried without a jüry, and the court made special findings of fact as follows:
“1. That M'ary J. Camp died in Pleasanton, Kansas, July 23, 1918, and at the time of her death was the owner of property situated in said county of the value of about $13,000.
“2. That the claimant herein, Helen L. Webster, was taken when a very small child by the decedent, Mary J. Camp, and made her home with the said Mary J. Camp until her death on July 23, 1918; that the said Mary J. Camp provided a home for the said Helen L. Webster, and the said Helen L. Webster rendered such help as she could in the home and they, at all times, lived together as mother and daughter and treated each other as mother and daughter; that said Helen L. Webster was never legally adopted by said Mary J. Camp and had not reached her majority at the time of the death of said Mary J. Camp; that while said Helen L. Webster lived with said Mary J. Camp, the said Mary J. Camp was sick a considerable portion of the time and Helen L. Webster stayed with and took care of her, and consequently was deprived of the schooling she should have had during the time she lived with said Mary J. Camp.
“3. That in April, 1909, Mary J. Camp married Mahlon Camp and he was her lawful husband at the date of her death, but the said Mahlon Camp and Mary J. Camp separated about four years ago'and since separation, said Mahlon Camp has lived outside of the state of Kansas, and that from their marriage in 1909 until about four years ago said parties lived together in Linn county, Kansas.
“4. That there was an understanding between said Mary J. Camp and Helen L. Webster that Mary J. Camp was to pay said Helen L. Webster for her services and that Mary J. Camp told a number of her friends and neighbors prior to the making of the contract hereinafter referred to that she could never repay Helen for the care she had taken of her.
“5. That on the 4th day of July, 1918, and during the last sickness of Mary J. Camp, the following contract was entered into between Mary J. Camp and Helen L. Webster, a copy of which is attached hereto and marked Exhibit ‘A’ and made a part of these findings of fact.
“6. That said contract was entered into in good faith by both parties to the same and at the time Mary J. Camp executed said contract marked Exhibit ‘A’ she was of sound mind and knew and fully appreciated what she was doing and that there was no undue influence used by the said Helen L. Webster or any one else to procure the execution of said contract and that the services mentioned in said contract, that had been performed and were to be performed by Helen L. Webster, were, in fact, performed by her.”
On these findings of fact the court made the following conclusions of law:
“1. That said contract entered into between Mary J. Camp and Helen L. Webster, dated the 4th day of July, 1918, was and is a valid and legal contract.
“2. That Helen L. Webster is entitled, under said contract, to an allowance of her claim against the estate of Mary J. Camp in the sum of eleven thousand dollars, with interest thereon at the rate of six per cent per annum from the 23d day of July, 1918, the date of the death of Mary J. Camp, and that said claim should be allowed by the Probate Court of Linn county, Kansas, for said amount as a fifth-class claim.”
The contract referred to in the findings of fact reads:
“This agreement, made this 4th day of July, 1918, by and between Mary J. Camp, party of the first part, and Helen L. Webster, party of the second part.
“Witnesseth, that, whereas the second party has for many years cared for and nursed the said first party, and,
“Whereas, first party is now helpless and in great need for some one to care for and nurse her, and to provide for her wants, and, whereas, it has been agreed between the parties hereto that eleven thousand dollars ($11,000.00) is a reasonable compensation for the services rendered to the first party by the second party, and for the care and support and maintenance of the first party.
“Now, therefore, it is hereby agreed that the first party is indebted to the second party in the sum of eleven thousand dollars ($11,000.00) for services rendered, and that the second party shall continue to care for and support and maintain the first party during the lifetime of the first party. That this agreement shall not in any way affect the operation of the will heretofore made and executed by the first party as to any property of which the first party may die the owner, after the payment of all lawful debts against the estate of the said first party, including the payment of this debt which includes the care and maintenance of the first party during her last sickness.”
The judgment rendered in favor of Helen L. Webster was on that contract.
1. The first question argued by Mahlon Camp is that the contract was without consideration and was unreasonable, unconscionable, and void. The validity of contracts for services between persons holding a family relation to each other has been recognized in a number of instances by this court. (Ayres v. Hull, 5 Kan. 419 ; Greenwell v. Greenwell, 28 Kan. 675 ;Ensey, Ex’r v. Hines, 30 Kan. 704, 2 Pac. 861; Wyley v. Bull, 41 Kan. 206, 20 Pac. 855; Story v. McCormick, 70 Kan. 323, 333, 78 Pac. 819; Lowe v. Weaver, 89 Kan. 443, 131 Pac. 142; Engelbrecht v. Herrington, 101 Kan. 720, 723, 172 Pac. 715.) Such contracts have been enforced against the estates of persons who had agreed to make payments, by allowing as claims against the estates compensation for the services rendered. (Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Herry v. Reed, 80 Kan. 380, 102 Pac. 846; Dubbs v. Haworth, 102 Kan. 603, 171 Pac. 624.) Recovery on such contracts has been had directly against the party for whom the service was rendered. (Shane v. Smith, 37 Kan. 55, 14 Pac. 477; Longhofer v. Herb el, 83 Kan. 278, 111 Pac. 483.) Specific performance of such agreements has been compelled. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; Harris v. Morrison, 100 Kan. 157, 162, 163 Pac. 1062.) The trial court found as a conclusion of law that the contract was a valid and legal contract, and this court cannot agree with Mahlon Camp that the contract was without consideration, or was unreasonable, unconscionable, or void. The amount to be paid for the service that was actually afterward rendered may seem large, but it must be remembered that the period of future service might have been long and that compensation for long years of service prior to the time of making the contract was included within the $11,000.
2. The other and principal question argued is that the contract is void because it operates to deprive Mahlon Camp of the one-half interest in his wife’s property which the law says she cannot by deed or will, without his consent, prevent her husband, Mahlon Camp, from inheriting at her death.
The law does not deprive the owner of property from making contracts and incurring obligations the performance of which, after the death of the maker, may be enforced as against his estate. The only exception to this rule is that found in the homestead and exemption statutes of this state. The contract was a valid and binding one, and the debt created thereby was a lawful claim against the estate of Mary J. Camp, payment of which can be enforced in the same manner as the payment of any other claim against the estate, although the payment of the claim may exhaust all the assets of the estate.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment for damages on account of its negligence in conducting the defense in an action against the plaintiffs. Elaborate findings of fact were made by the court, a brief summary of which is as follows:
Plaintiff William S. Anderson was engaged in mining coal from a strip-pit coal mine. He obtained a policy of insurance from the Missouri Fidelity and Casualty Company, insuring the plaintiff in the sum of $5,000 against loss or damage on account of accidents resulting in bodily injury to any one person employed in the operation of the mine. Afterward plaintiff Charles Sweeney, with the knowledge and consent of that company, became a partner of plaintiff William S. Anderson in the operation of the coal mine, and later the defendant succeeded to the rights and obligations of the Missouri Fidelity and Casualty Company under the policy. William Henry Marshall was employed by the plaintiffs as shot-firer in their coal mine. He performed his work in the following manner: After the surface earth and stone had been removed from the coal, a hole was drilled through the coal to a depth of about twenty-six inches, into which a piece of dynamite was placed and exploded by detonation, after which a quantity of black blasting powder was ■ poured into the hole, and that powder was exploded by ignition. Marshall was injured by an explosion of black blasting powder in a hole into which he had poured the powder after he had exploded a piece of dynamite therein. Marshall' sued the plaintiffs for damages. Under the terms of the policy the defendant had the right to defend in that action and did conduct the defense. The defendant’s attorneys in that action prepared the answer, but they did not plead that Marshall was using dynamite in the mine in violation of sections 6326 and 6328 of the General Statutes of 1915. Trial was had, which resulted in a verdict in favor of the plaintiff for $4,500. That verdict was set aside, and a new trial was granted. Before the action was again tried the plaintiff offered to compromise and settle his claim for $4,500, but the defendant refused to settle for that sum. The action was again tried, and resulted in a judgment for $8,650. That judgment was affirmed in Marshall v. Anderson, 98 Kan. 573, 158 Pac. 1116. The defendant paid $5,415.09 on that judgment; the plaintiffs paid the remainder. They then commenced this action to recover from the defendant the sum of $3,000 as the damages sustained by them on account of the defendant’s negligence in failing to in any way set up the illegal act of Marshall in using dynamite in the coal mine, as a defense in the action brought by him, and in failing to compromise and settle the 'claim of Marshall for $4,500.
1. The petition in Marshall v. Anderson, the action out of which the present one arose, alleged that Marshall was injured by an explosion of black blasting powder in a hole in which he had just prior thereto exploded dynamite in violation of the laws of the state of Kansas. The laws referred to are sections 6326 and 6328 of the General Statutes of 1915, which are as follows:
“It shall be unlawful for any person or persons engaged in coal mining to use or cause to be' used dynamite or other detonating explosives in the preparation of any blast or shot in any coal mine within the state of Kansas: Provided, however, That dynamite or other detonating explosives may be used under such rules and regulations as may be agreed upon between the employer and the employees, same to be approved by the state mine inspector. All rules, regulations and permits to use dynamite or other detonating explosives, as herein provided, shall be in writing.” (§ 6326.)
“Any person or: persons violating the provisions of section 1 of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars.” (§ 6328.)
That petition also alleged that no written rules or regulations for the use of dynamite in the mine in which Marshall was working had been agreed upon between the Anderson Coal Company and its employees, nor had any rules and regulations been approved by the state mine inspector. This court had occasion to pass on these statutes in Richards v. Coal Co., 104 Kan. 330, 179 Pac. 380, where this court said:
“The act applies to strip-pit coal mines.
“A shot-firer in a strip-pit coal mine comes within the provisions of the act making it unlawful for any person engaged in coal mining to use dynamite in the preparation of any blast or shot in any coal mine within the state.
“Such a shot-firer, using dynamite in the preparation of a blast in violation of the act, cannot recover damages for injury sustained by him in the explosion of dynamite with which he was working, if it is necessary for him to prove its illegal use as a part of his case.” (Syl. ¶¶ 2, 3, 4.)
If a demurrer to the petition in Marshall v. Anderson had been interposed, it should have been sustained. An answer could have been filed in which the unlawful use of dynamite could have been pleaded, and if proved, it would have been a complete defense. If the evidence of Marshall introduced on the trial had disclosed that he was using dynamite in violation of law at the time he was injured, a demurrer to his evidence should have been sustained. None of these things were done. That it was negligence on the part of the defendant not to do one of these things cannot be successfully disputed. In Attleboro Mfg. Co. v. Frankfort M. Acc. & P. G. Ins. Co., 171 Fed. 495, it was held that:
“Where an insurer under an employers’ liability policy on being notified of an action for injuries to insured’s servant assumed the defense thereof, and was negligent in conducting the suit, to the loss of the employer, the latter was entitled to sue the insurance company for breach of its implied contract to exercise reasonable care in conducting the suit or in tort for negligence.” (Syl. ¶ 2.)
In that case the limit of liability was $5,000. On account of the negligence of the insurance company, judgment was obtained for $17,343.81. The action was commenced against the insurance company to recover $12,343.81. Judgment was rendered for $5,437.17, and an appeal was taken to the United States circuit court of appeals, first circuit, where it was held that the insurance company was liable for negligence in its defense in the action, but the judgment was reversed and remanded for further proceedings on other grounds. (Attleboro Mfg. Co. v. Frankfort Marine, etc., Ins. Co., 153 C. C. A. 377, 240 Fed. 573.) The opinion of the United States circuit court of appeals is also reported in 17 N. C. C. A., 1068, where a note is found on the “liability of indemnity insurance company for negligence or bad faith in defending or settling action against injured.” (See, also, G. & M. L. M. Co. v. E. L. A. Cor., 117 Iowa, 180.)
2. To avoid the consequences of its negligence in defending the former action, the defendant argues that the plaintiffs cannot recover in this action for the reason that they were permit ting Marshall to use dynamite in violation of law when he was injured. The present action does not arise out of the violation of law, but arises out of the negligence of the defendant in not setting up the violation of law as, a defense in the former action. While defending in the former action, the defendant should have in some way made this defense known to the court, and it cannot now set up the matter to relieve itself of the payment of the damages caused by it? negligence.
3. Another reason advanced by the defendant for its non-liability is, that the plaintiffs employed able counsel of their own to represent them in the former action, and that they were therefore guilty of contributory negligence because their attorney did not set up this defense. The trial court found that—
“Under the terms and provisions of said policy of insurance plaintiffs Anderson and Sweeney, at their own expense, and with the knowledge and consent of defendant, employed one John J. Campbell, to cooperate with and render all reasonable assistance to defendant’s attorney, R. M. Sheppard, in the defense or settlement of said action for damages, . . . and that he rendered such services and assistance from time to time as he was called upon by said Sheppard to render.”
There is nothing in the findings to show that the defendant in the present action did not take complete control of the defense in the former one. There is in the findings of the court that which indicates that the plaintiffs’ attorney, had no control over the litigation whatever, that he was hired to do what he was told to do, and that he was not hired to do anything except what he was told to do. There was nothing in the employment of the attorney for the plaintiffs nor in the service rendered by him in the litigation that sustains a charge of contributory negligence against the plaintiffs.
The defendant had an opportunity to settle Marshall’s claim for $4,500, but it refused to settle for that amount, although it seems that its attorney had taken the matter up with it, and that the attorney for the plaintiffs was urging a settlement. The defendant elected to fight. It could have fought successfully; through its negligence it did not, and lost, and now it must bear the consequences.
4. At the opening of the trial the defendant moved the court to require the plaintiffs to elect on which act of negligence alleged in the petition it would proceed to trial. That motion was denied, and the defendant complains of the order denying the motion. The defendant argues that the two acts of negligence alleged were inconsistent with each other. Causes of action are inconsistent with each other when they ca'nnot stand together; when if one is true the other cannot be true; when one defeats the other. (4 Words and Phrases, p. 3511; 2 Words and Phrases, second series [1914]), p. 1013. The same rule applies to defenses. The two acts of negligence alleged by the plaintiffs were not inconsistent writh each other; they could stand together; one did not defeat the other. The truth of one did not disprove the truth of the other; both might have been true. The defendant could have been negligent in either or both of the instances alleged — in failing to present the illegal act of Marshall as a defense, and in failing to accept the compromise offered by him. It was therefore not error for the court to deny the defendant’s motion.
Other questions have been presented. They have been examined, but there is nothing in them that justifies further discussion.
The judgment is affirmed.
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OPINION DENYING A REHEARING.
The opinion of the court was delivered by
Dawson, J.:
It is urged that the pleadings were not broad enough to include an issue of fraud. True, but there was no such issue; it was an action on a contract, and so continued throughout the trial. Defendant could have asked that the pleadings be amended to show whether that contract was oral or written, but he chose to traverse the issue as pleaded — not ,to have the issue more specifically pleaded. While a slight intimation of fraud crept out in the evidence, that was only a minor incident in the narrative of the transaction between the parties.
Affidavits of Colorado witnesses to the contract are presented for the first time in support of this petition for a rehearing. They formed no part of the evidence upon which the trial court based its judgment. They cannot be considered now to disturb that judgment. (See Wideman v. Faivre, 100 Kan. 102, 107, 108, 163 Pac. 619.)
Rehearing denied.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit involves the rights of senior and junior grantees of subsurface estates in coal lands in Crawford county.
In 1895, the owners of the fee sold and conveyed the coal in place under their farm to plaintiff’s original assignor. The contract of the parties recited that the grantors had sold to the grantee all the coal underlying the land in question. It recited the consideration, $1,900; detailed the terms of payment; provided for retention of title until payment was completed; and provided for a forfeiture for failure of payment. It provided for surface trackage rights, also rights of ingress and egress, and the right to construct mining facilities on the land “for such period of time as he [grantee] may require to remove the coal from under said land.” It also provided that the grantee, his heirs and assigns, were privileged to remove all the mining equipment “whenever said coal is mined, or at the expiration of this agreement.” It recited also that the grantee “shall properly prop and leave sufficient pillars in said mine which shall be left standing at the expiration of this contract, to protect the surface of said land from caving.” The concluding paragraph of the contract reads:
“It is further agreed by and between the parties hereto their heirs and assigns that this contract shall cease and be determined, and all of the rights of the said second parties their heirs or assigns thereunder or hereby acquired, shall terminate and determine at the expiration of twenty years from the date hereof. That said second parties their heirs or assigns shall give quiet and peaceable possession of said premises and every part thereof at the expiration of the time herein stated unto the said first parties their heirs or assigns.”
Some time after the expiration of the twenty years specified in the contract, the defendant bought the property from the heirs of the original owners and for about two years has been taking coal from under this land.
Plaintiffs brought this action, alleging trespass and damages, and also prayed for an injunction. On the joining of issues, the trial court permitted evidence (over objection and with rulings reserved) to show that the oral understanding of the parties was that if the grantees of the contract of 1895 should not complete the work of mining the coal in twenty years they would have to take it out thereafter by a shaft or “some other way than by going upon the premises”; and that the stipulation that the contract should terminate in twenty years referred to the use of the real estate in taking out the coal, and that the grantee or his assigns should vacate all surface occupancy at the end of twenty years.
The trial court made a general finding for the defendant and entered judgment accordingly.
The written contract of 1895 was not ambiguous and was in no need of oral evidence to clarify its "meaning. The written contract of the parties defined the extent and duration of the estate acquired by plaintiff’s grantor. It is true that a separate subsurface estate was carved out of the original fee, but it was a determinable and not an unlimited estate. It was an estate for years, and the contract clearly and repeatedly specified the maximum duration of the estate conveyed to the grantees. True, also, there was a specific sale of the coal,, but the whole contract has to be read and construed together; and it is clearly implied from all its terms that the coal thus sold was to be removed in twenty years; and all rights conferred by the contract — not merely the surface rights of occupancy, access, etc. — but the contract, in all its parts, “shall cease and be determined, and all of the rights of the said second parties, their heirs or assigns, thereunder or hereby acquired, shall terminate and determine at the expiration of twenty years.” In other words, there was a conveyance of a present estate in all the coal in place, but defeasible as to any coal not mined within the time limit fixed by the contract.
Appellant cites more or less analogous cases which seem to hold that where coal in place or standing timber is sold and a term of years is specified in which such coal or timber is to be removed, the lapse of the specified time does not terminate the grantee’s right to the coal or timber, but only cuts off the right of access thereto, leaving the matter of further access to future negotiations or to the grantor’s right to damages for trespass and the like. Appellee cites a line of cases more in harmony with our view, although our judgment is based upon our interpretation of the particular contract before us, rather than upon precedent and analogy. Some of the cases which by analogy support our conclusions are: Butler v. M’Gorrisk, 114 Fed. 300; Morgan v. Perkins, 94 Ga. 353; McRae v. Stillwell, Millen & Co., 111 Go. 65, 55 L. R. A. 525-531, and note; Howard v. Lincoln, 13 Me. 122; King v. Merriman, 38 Minn. 47; Hawkins v. Lumber Co., 139 N. C. 160; Lumber Co. v. Corey, 140 N. C. 462; Midyette v. Grubbs, 145 N. C. 85, 13 L. R. A., n. s., 278, and note; Clark v. Guest, 54 Ohio St. 298; Saltonstall v. Little, 90 Pa. 422; Rich v. Zeilsdorff, 22 Wis. 544; and Strasson v. Montgomery, 22 Wis. 52.
In Austin v. The Huntsville Coal & Mining Company, 72 Mo. 535, where the grantor conveyed all the coal under his land for twenty years, the court said:
“If the parties had intended an absolute grant of ‘all the coal’ under the land described, the time during which the coal should be dug would not have been limited. For, by thus limiting the time, during which mining operations were to be carried on, it is equivalent to saying that the party of the second part is to have all the coal it can mine on the premises, before the lapse of twenty years.” (p. 541.)
In 1 Barringer and Adams’s Law of Mines and Mining in the United States, it is said:
“The form of the conveyance is unimportant. It makes no difference that it is called a lease, and that its terms are those for leasing real estate. If 'it shoivs an intention to convey all of the specified mineral in the particular land, it effects a sale or absolute conveyance thereof.
“If the instrument shows such an intent, it is none the less a sale because a term of years is prescribed within which the mineral must be taken out. Nor is the nature of the grantee’s estate changed by the fact that he fails to mine during that term. There is in such case a sale to him, not a lease; but a reversion takes place at the end of the term to the grantor.
“The fact also that the purchase-money depends upon the amount of coal mined is of no moment in determining the nature of the estate. The question is whether all the coal is conveyed; if so, there is a sale thereof.
“The rather paradoxical result of the above statement — that the nature of the estate is unaffected by the limitation of the privileges to a term of years- — -is apparently a fee-simple estate for a term of years. This seems to have deterred some courts from following in terms the rule as laid down in Pennsylvania. It seems, nevertheless, that that position is a necessar-y one, however it is worked out, and it may be theoretically justified on either of two lines of reasoning, . . . First, the limitation to a term of years may be regarded as a limitation, not upon the estate, but upon the appurtenant rights, without which the es- • tate will be of no value. Second, the failure to take out all the mineral within the specified term may be treated as a forfeiture of the estate.” (p. 36.)
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is a divorce action. The appeal is from orders striking plaintiff’s reply, dismissing the action for want of prosecution, and refusing to reinstate the action.
On April 11, 1956, plaintiff filed her petition alleging a common-law marriage relationship between her and defendant, and that as the result of their joint efforts they had accumulated certain described real estate in Sedgwick County, title to which was in defendant’s name until November, 1955, at which time defendant conveyed the same by joint-tenancy deed to himself and his son by a previous marriage, such conveyance being made without the knowledge or consent of plaintiff. It was further alleged that plaintiff and defendant owned certain other described real estate in Sedgwick County in joint tenancy, on which they operated a trailer park. It was further alleged there were no children of the marriage;' that defendant had been guilty of extreme cruelty and gross neglect of duty, and the prayer sought an absolute divorce, a division of the income from both described properties, and an order making a proper division of the property.
On May 7, 1956, defendant filed his answer in which he denied the common-law marriage relationship, and that he had been guilty of extreme cruelty and gross neglect of duty. The answer admitted that he and plaintiff owned as tenants in common the second tract of real estate mentioned in plaintiff’s petition; that it was owned by them as a partnership venture, and that they were operating a trailer park on the property. The answer also contained a general denial of all allegations contained in the petition unless otherwise admitted.
On September 11,1956, plaintiff filed a reply which, after denying all allegations and averments of new matter contained in the answer, stated that if the marriage alleged in her petition should be held to be null and void and no divorce should be granted, that there should be an equitable and just division of the property described in her petition which was the result of the joint earnings and labor of the parties during the time they lived together as husband and wife.
On October 20, 1956, defendant filed a motion to strike the reply on the ground it changed the issues set forth in plaintiff’s petition.
On October 29, 1956, this motion to strike was sustained by an order of division No. 2 of the district court.
On November 29, 1956, by an order of division No. 1 of the district court, plaintiff’s action was dismissed for want of prosecution.
Plaintiff’s, motion to reinstate the action was denied on. December 10, 1956, following which this appeal was taken.
We first discuss the order striking plaintiff’s reply.
As heretofore stated, the petition alleged a common-law marriage; that there were no children of the marriage; that defendant had been guilty of extreme cruelty and gross neglect of duty; that by the joint efforts of the parties certain described real estate had been accumulated, title to which was in defendant and his son by a previous marriage; that plaintiff and defendant owned certain other described real estate in joint tenancy on which they were operating a trailer park, and that plaintiff was entitled to a division of the income from both properties and to an equitable division of such properties.
The answer, after denying generally, and specifically denying the common-law marriage relationship and the charges of extreme cruelty and gross neglect of duty, admitted that defendant and plaintiff owned one of the two tracts in question as tenants in common; that it was owned as a partnership venture, and that the parties were operating a trailer park on it.
As stated, the reply alleged that if the marriage should be held to be null and void and no divorce be granted, that an equitable and just division of certain property described in the petition should be made.
Under the circumstances, we feel that we are not called upon to write a treatise on the subject of pleadings in divorce actions, but in our opinion the reply was erroneously stricken. G. S. 1949, 60-1506, provides that when parties appear to be in equal wrong the court may, in its discretion, refuse to grant a divorce, and in any such case, or in any other case where a divorce is refused, the court may make an equitable division and disposition of the property of the parties as may be proper, equitable and just. This, in reality, is what plaintiff sought in her reply. The action was one purely equitable in nature, and, under the circumstances, the court had jurisdiction to grant or deny the relief sought by the pleadings in the case. While there is some dissimilarity in the facts, we think the matter is governed by the general principle laid down in Werner v. Werner, 59 Kan. 399, 53 Pac. 127, 68 Am. St. Rep. 372, 41 L. R. A. 349, and Cummings v. Cummings, 138 Kan. 359, 362, 26 P. 2d 440. This was a routine divorce action, even though based on an alleged common-law marriage, and for an equitable division of the property of the parties. The court should have proceeded to try the case on the issues presented.
The reply was erroneously stricken.
This brings us, then, to the propriety of the order dismissing plaintiff’s action for want of prosecution.
The petition was filed on April 11, 1956. The answer was filed on May 7,1956. The reply was filed on September 11, 1956. From the record presented, it appears the case was first set for trial on August 29, 1956, in division No. 3 of the district court, but, due to the fact defendant’s attorneys were to be engaged the following day in a trial in a neighboring county, the case was continued by agreement of the parties until September 13th. On that day all parties appeared and announced themselves ready for trial, but when it was developed that the judge of that division had previously represented defendant’s former wife in a divorce action, the matter was assigned to division No. 2 of the district court and continued until October 16, 1956. Two or three days prior to this date, due to the illness of defendant, the matter was again continued and set down for hearing on November 29, 1956. In the meantime plaintiff’s reply had been stricken and her counsel had advised defendant’s counsel they intended to appeal from that order. It also appears that prior to November 29, 1956, counsel had at least one conversation, and possibly others, concerning the fact that plaintiff probably would not be ready to go to trial on November 29th. Be that as it may, on November 29th plaintiff was present by counsel, and defendant was present in person and by his counsel. Plaintiff moved for a continuance, and defendant moved for dismissal for want of prosecution. The motion to dismiss was sustained.
This court is reluctant to set aside an order such as this, which normally rests within the sound discretion of a trial court, but, under all of the circumstances disclosed by this record, a portion of which have been related, we feel compelled to hold that in dismissing the action and refusing to reinstate the same the trial court abused its discretion to plaintiff’s prejudice.
The orders striking the reply, dismissing the action, and refusing to reinstate, are therefore reversed, vacated and set aside.
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The opinion of the court was delivered by
Price, J.:
This is an action by a minor, through her father and next friend, to recover for personal injuries sustained as the result of the alleged negligence of defendants. The appeal is by plaintiff from orders sustaining separate demurrers to the second amended petition and striking the third cause of action from the third amended petition.
In February, 1952, the parents of plaintiff rented a second-floor apartment in a building in Parsons from defendants Peterson, the owners thereof. The first floor of the building was occupied by a grocery store but was vacated in December, 1953. At the rear of the building there was a yard approximately thirty-five feet long and twenty-eight feet wide in which there were clotheslines and a trash burner for the use of the occupants of the second-floor apartments.
In December, 1953, defendants Peterson employed defendant Walker, a contractor, to remodel the lower floor of the building. In the process of the remodeling work, Walker disposed of old equipment, rubbish, old unused lumber and other debris by throwing and scattering it in disorderly loose heaps on a portion, of the yard at the rear of the building. The remodeling work was completed on or about January 4, 1954, and the debris was left on the premises by Walker in the condition above mentioned.
During the month of January, 1954, plaintiff’s mother orally notified defendants Peterson that the trash and rubbish was dangerous to the tenants and their families living in the second-floor apartments, and that it should be removed. On February 15,1954, plaintiff, a seven-year-old child, while playing on the pile of trash and debris, which was four feet high, fell and suffered a broken leg.
The second amended petition alleges that defendant Walker, the contractor, acting as the agent, servant and employee of defendants Peterson, was guilty of negligence, recklessness and carelessness in throwing and scattering the debris, old equipment, rubbish and old lumber on the premises and leaving it there, thereby creating a hazard and attractive nuisance to the children using the yard and accustomed to playing therein. It is further alleged that each of the defendants had notice of and knew that among the tenants of the building were children under ten years of age who might be attracted or lured into danger when playing or climbing upon the loose piles of debris and old equipment, and that by leaving the same on the premises there was created a booby trap, a death trap and an attractive nuisance and hazard to the children accustomed to playing, in the yard.
It was further alleged that each of the defendants was guilty of negligence, recklessness and carelessness in failing to properly stack the debris in an orderly manner so that it would not topple and easily fall, and in leaving such materials in the play yard of plaintiff in such condition that she, or any other child accustomed to playing in the yard, would easily fall, and in failing to fence or place barriers around the same so as to provide a suitable safeguard.
Allegations with respect to the extent of plaintiff’s injuries and medical expense in connection therewith need not be set out.
Defendant Walker filed a demurrer to the second amended petition on the ground it did not state facts sufficient to constitute a cause of action against him and in favor of plaintiff.
Defendants Peterson filed a joint demurrer to the second amended petition on the same ground as did defendant Walker.
Each of these two demurrers was sustained and plaintiff was granted twenty days in which to amend.
In compliance with this ruling, plaintiff, within time, filed her third amended petition, alleging three separate causes of action. In substance, it may be said the first cause of action charges each of the defendants with negligence in creating and permitting the alleged dangerous condition to exist. The second cause of action alleges that each of the defendants was guilty of maintaining a nuisance with respect to the dangerous condition. The third cause of action alleges negligence on the part of all defendants in the creation and maintenance of an attractive nuisance.
Defendant Walker then filed a motion to strike the third cause of action from the third amended petition on the ground that such cause of action was repetitious of the cause of action set forth in the second .amended petition, to which his demurrer had previously been sustained. Defendants Peterson filed a similar motion.
Each of these motions to strike was sustained and plaintiff was given twenty days in which to amend.
Following this ruling plaintiff appealed from the orders sustaining the separate demurrers to the second amended petition and from the orders striking the third cause of action from the third amended petition.
The rulings in question are specified as error.
In support of the trial court’s rulings defendants make three contentions. The first is that plaintiff cannot be heard on the question whether the demurrer to the second amended petition was correctly sustained — first, because she has failed to brief or argue her specification of error relating to that ruling, and, secondly, instead of appealing from the order sustaining the demurrer she acquiesced in the court’s order and filed an amended petition. The second contention is that the theory of plaintiff’s second amended petition was the creation and maintenance of an attractive nuisance, and that inasmuch as the third cause of action in the third amended petition contained substantially the same allegations such cause of action was properly stricken from the subsequent pleading under the rule stated in Fidelity Hail Ins. Co. v. Anderson, 172 Kan. 253, 239 P. 2d 830. Thirdly, it is contended that in no event is a cause of action under the doctrine of attractive nuisance stated in either the second amended petition or the third cause of action in the third amended petition.
Plaintiff, on the other hand, confines her argument to the sole proposition, and states the question to be:
“The question before the court at this time is whether the third cause of action of the third amended petition states a cause of action for damages for personal injuries suffered by a 7 year old girl, which appellant contends it does, based on the turntable doctrine of attractive nuisance.”
As we read the briefs, it is apparent that counsel for both sides, and the trial court, considered the second amended petition solely from the standpoint of whether it stated a cause of action under the doctrine of an attractive nuisance. It is further apparent that all parties considered the third cause of action in the third amended petition in the same light, and, having sustained the demurrers to the second amended petition, the trial court therefore struck the third cause of action contained in the third amended petition.
Concededly, the matter is somewhat confused from a procedural standpoint and presents at least two avenues of approach. In either event, however, we arrive at the same result, in view of our ultimate disposition of the overall question for decision.
G. S. 1949, 60-761, provides that if a demurrer be sustained the adverse party may amend if the defect can be remedied by way of amendment. At the time it sustained the demurrers to the second amended petition the trial court granted plaintiff twenty days within which to amend. Plaintiff acquiesced in that order and within time filed her third amended petition. In Harmon v. James, 146 Kan. 205, 69 P. 2d 690, it was held:
“Where a demurrer to a petition is sustained and the plaintiff is given time within which to file an amended petition, and subsequently, with the consent of the trial court, does file an amended petition, the plaintiff cannot, while the amended petition is pending, appeal from the order sustaining the demurrer.” (Syl. 1.)
A somewhat analogous situation was present in Baldwin v. Fenimore, 149 Kan. 825, 89 P. 2d 883, in which it was said that the plaintiff may not complain nor may the defendant take advantage of the ruling on the demurrer because of the fact that at the time of the ruling time to plead further was given, and under such circumstances there was no final judgment.
Under the circumstances, we think the ruling on the demurrer to the second amended petition is not properly before us for review for the reason that plaintiff’s action in filing the third amended petition, pursuant to the court’s permission so to do, constituted, from a practical standpoint, an acquiescence in the judgment and ruling.
This brings us, therefore, to the propriety of the ruling striking the third cause of action from the third amended petition.
The general rule is that motions to strike rest in the sound discretion of the trial court, and that, ordinarily, rulings thereon are not appealable unless they affect a substantial right and in effect determine the action. (Billups v. American Surety Co., 170 Kan. 666, 670, 671, 228 P. 2d 731; Boettcher v. Criscione, 180 Kan. 39, 299 P. 2d 806.) Here, however, we think it may not be said that the ruling striking the third cause of action from the third amended petition did not affect a substantial right of plaintiff. The practical effect of the ruling was to deprive plaintiff of her theory of recovery based upon the doctrine of an attractive nuisance. We therefore think that plaintiff is entitled to have the ruling reviewed.
As previously stated, there appears to be no doubt but that the trial court and all parties considered the second amended petition solely from the standpoint of whether it stated a cause of action based on the doctrine of attractive nuisance, and plaintiff does not contend otherwise. Demurrers to that petition were sustained. Plaintiff then acquiesced in the ruling and filed the third amended petition, as the court permitted. The third cause of action in that subsequent pleading attempted to plead the identical cause of action in substantially identical language as that contained in the second amended petition. The basis of the motion to strike this cause of action, and of the court’s ruling thereon, is clear — it was contended, and the court held — the matter so alleged was repetitious of the cause of action set forth in the second amended petition to which demurrers had previously been sustained.
In Fidelity Hail Ins. Co. v. Anderson, supra, it was held:
“Where a demurrer has been sustained to a petition on the ground it fails to state a cause of action and the plaintiff files an amended petition containing allegations so similar they substantially repeat what was set forth in the original pleading a trial court does .not commit error in sustaining a motion to strike the amended pleading from the files.” (Syl.)
The court did not err in sustaining the motions to strike the third cause of action.
Because of the various contentions made and the somewhat unusual state of the pleadings, we feel that our decision should be clarified by this one further statement. On the record presented, plaintiff now has on file in the court below a third amended petition containing two causes of action, the legal sufficiency of which is not before us in this appeal. Our decision is limited and confined to the third cause of action of that pleading, and the orders striking it are affirmed.
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The opinion of the court was delivered by
Hall, J.:
This matter is before the court on rehearing. It was previously considered and is reported in 181 Kan. 51, 310 P. 2d 199.
Since this is a rehearing, it would serve no uséful purpose to recite the extensive facts of the case. They are reported in the previous decision and reference is made thereto.
Suffice it is that this case is a condemnation appeal involving a single 160 acre parcel of land. After appropriate appeals to the district court from the award of the appraisers a motion was filed by the Kansas Turnpike Authority to consolidate the various appeals for trial. The Turnpike moved to consolidate the cases as a matter of law under G. S. 1955 Supp., 26-102, and not as a matter of discretion of the court under G. S. 1949, 60-601 and G. S. 1949, 60-765.
The court overruled the motion and refused to consolidate the appeals for trial. In due course an appeal was taken in this court. The appellant Kansas Turnpike Authority specified as error the following question which was considered in the previous hearing of lie case, to wit:
“The sole question involved is ‘Does an appeal in the District Court from an appraisement in an eminent domain proceeding bring to the District Court in its entirety the question of the sufficiency of the award to be tried in a single action as to all of the parties?’ ”
After an exhaustive study of the authorities which were cited in the previous decision the court was of the opinion that the matter of consolidation of such cases for trial was governed by the legislative intent of G. S. 1955 Supp., 26-102. The statute provides as follows:
“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: .' . .” (Emphasis ours.)
The court said at page 57 of the previous opinion:
“The use of the disjunctive in the foregoing statute indicates the legislative intent that each owner of an interest in property may have a separate trial for the value of his property.”
The court further said at page 59:
“We cannot accept appellant’s contention. In this jurisdiction tire rule followed in consolidation of cases for trial is not one of substance but one of procedure (under the provisions of G. S. 1949, 60-601 and 60-765). . . .
“Motions for consolidation under the statutes are in the sound' discretion of the trial court. (Railway Co. v. Hart, 7 Kan. App. 550, 51 Pac. 933; Rice & Floyd, v. Hodge Bros., 26 Kan. 164; and Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80.)
“In the absence of any showing of abuse of discretion in refusing to consolidate these appeals for trial, the judgment of the district court will be affirmed. No abuse of discretion is shown here.”
In its previous opinion the court émphasized the disjunctive aspects of G. S. 1955 Supp., 26-102, and decided that it was the intent of the legislature to give the petitioner or the owner or any lien holder or any interested party the right to separate trial for the value of his interest in the land taken'.'
In arriving at this conclusion the court was not unmindful of Federal Land Bank v. State Highway Comm., 150 Kan. 187, 92 P. 2d 72. The maj'ority opinion cited and quoted from the case but distinguished it along with a persuasive line of authority' on the basis of the disjunctive aspects of the statute.
After rehearing and further study the court is now of the opinion that its previous decision ought to be vacated and set aside for the following reasons:
Following our previous decision (Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199, and other citations therein) eminent domain begins as a special statutory proceeding in rem under the Kansas statutes. See, also, State v. Boicourt Hunting Ass’n, 177 Kan. 637, 282 P. 2d 395; and Walker v. City of Hutchinson, 178 Kan. 263, 284 P. 2d 1073, 352 U. S. 112, 1 L. ed. 2d 178, 77 S. Ct. 200.
As a matter of substantive law under the provisions of G. S. 1949, 26-101, et seq., as amended by G. S. 1955 Supp., 26-102, an appeal in an eminent domain proceeding from the award of the appraisers to the district court brings to that court a single action to be tried as such, without separating such action into as many separate actions as there are parties interested in the particular fa-act involved in the appeal, following Federal Land Bank v. State Highway Comm., supra.
The salient facts of that case were that the State Highway Commission filed its petition to condemn certain lands for highway purposes. Notice was given the landowner as well as the bank, a lien holder, which held a mortgage on the tract involved.
The bank then filed an application alleging it held unsatisfied mortgage liens on the land and asked that an order be made to pay the award to the bank.
In due course, the appraisers made their report and the bank appealed from the award. Neither the landowner nor the State Highway Commission filed any notice of appeal from the appraisement made.
The State Highway Commission then filed its motion for an order determining the questions of law propounded. The first question was whether the landowners were parties to the appeal; the second, if they were not parties, what was the measure of damages to which the bank was entitled.
The question as to the division of the award as between the landowner and the lien holder was not before the court.
The court, after reviewing the history of the condemnation statute, said:
“. . . In 1937 the provision of the general condemnation act conferring right of appeal theretofore granted to the petitioner or landowner was amended by Laws 1937, ch. 226, §1, now appearing as G. S. 1937 Supp. 26-102, and now reads:
“ ‘If the petitioner or the owner or any lienholder 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.’
“It will be observed that under that statute appeal is perfected, not by serving notice on any parties occupying what might be called an adverse position; it is perfected by notice filed with the clerk of the court. There is nothing in that statute which indicates or leads to the conclusion that as to a particular tract of ground the petitioner might appeal as to the lienholder and not the landowner, or vice versa, or that the lienholder could appeal separately as between the petitioner and the landowner, or that the landowner could appeal separately as between the petitioner and the lienholder. The statement is that if any one of the three appeal, an action shall be docketed and tried. The statute provides its own procedure up to the point where the appeal is perfected. When that has been accomplished ‘an action shall be docketed and tried the same as other actions.’ We are of opinion that under the statute there is and can be no separation as between parties. Whenever an appeal is taken, either by the petitioner or by the landowner or by a lienholder, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to this court. We think the ruling of the trial court on the first question of law propounded that the landowner was not a party to the appeal to the district court was erroneous, . . .” (pp. 189, 190.)
■ On tbe question as to the measure of damages, the court said:
“The appellant here has briefed the question as to the measure of damages to be applied as to a lienholder on the theory that he is owner of less than a fee and the measure should be restricted to his interest or right. We shall not discuss that question as presented. . . .”
After rehearing the court is in agreement with the Federal Land Bank case and is of the opinion that the disjunctive aspects of G. S. 1955 Supp., 26-102 are controlled by the following words of the statute, to wit:
. . and thereupon an action shall he docketed and tried the same as other actions: . . .” (Emphasis ours.)
The Federal Land Bank case was decided in 1939. The legislature has not seen fit to change the statute in this respect and since it has-been amended in many other ways we must assume that the decision of the Federal Land Bank case follows the legislative intent of the statute. Therefore, it is the law of this state that whenever an appeal is taken to the district court under this statute, either by the petitioner or the landowner or by a lien holder, from an appraisement made, the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to the right of appeal to the supreme court.
In the original opinion of this court (Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199) we pointed out that the authorities are sharply divided on the issue presented in this case. Generally speaking, state statutes and practices are controlling. As in the Federal Land Bank case, the various jurisdictions follow those authorities which most closely conform to the local statute and practice.
A leading case is Kohl Et Al. v. United States, 91 U. S. 367, 23 L. ed. 449:
“The second assignment of error is, that the Circuit Court refused the demand of the defendants below, now plaintiffs in error, for a separate trial of the value of their estate in the property. They were lessees of one of the parcels sought to be taken, an dthey demanded a separate trial of the value of their interest; but the court overruled their demand, and required that the jury should appraise the value of the lot or parcel, and that the lessees should in the same trial try the value of their leasehold estate therein. In directing the course of the trial, the court required the lessor and the lessees each separately to state the nature of their estates to he jury, the lessor to offer his testimony separately, and the lessees theirs, and then the government to answer the testimony of the lessor and the lessees; and the court instructed the jury to find and return separately the value of the estates of the lessor and the lessees. It is of this that the lessees complain. They contend, that whether the proceeding is to be treated as founded on the national right of eminent domain, or on that of the State, its consent having been given by the enactment of the State legislature of Feb. 15, 1873 (70 Ohio Laws, 36, sect. 1), it was required to conform to the practice and proceedings in the courts of the State in like cases. This requirement, it is said, was made by the act of Congress of June 1, 1872. 17 Stat. 522. But, admitting that the court was bound to conform to the practice and proceedings in the State courts in like cases, we do not perceive that any error was committed. Under the laws of Ohio, it was regular to institute a joint proceeding against all the owners of lots proposed to be taken. (Giesy v. C. W. & T. R. R. Co., 4 Ohio St. 308); but the eighth section of the State statute gave ‘the owner or owners of each separate parcel’ the right to a separate trial. In such a case, therefore, a separate trial is the mode of proceeding in the State courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from tire trial of the issues between the government and the owners of other parcels. It hath this extent; no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. . . .” (p. 377.)
See, also, Bogart v. United States, 169 F. 2d 210; Carlock v. United States, 53 F. 2d 926; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S. W. 2d 600; Dye v. Railroad Co., 77 Kan. 488, 94 Pac. 785; Federal Land Bank v. State Highway Comm,., supra; K. & C. P. Rly. Co. v. Phipps, 4 Kan. App. 252, 45 Pac. 926; Meadows v. United States, 144 F. 2d 751; Newton Trust Co. v. Commissioner of Internal Revenue, 160 F. 2d 175; Reiter v. State Highway Commission, 177 Kan. 683, 281 P. 2d 1080; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S. W. 2d 80, 69 A. L. R. 1256; 166 A. L. R. 1211; State Highway Commission v. Weiss, 167 Kan. 427, 207 P. 2d 480; 18 Am. Jur., Eminent Domain, § 316; Sinclair v. Missouri Pac. Rld. Co., 136 Kan. 764, 766, 18 P. 2d 195; Nelson v. City of Osawatomie, 148 Kan. 118, 121, 79 P. 2d 857; C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 169, 35 Pac. 1105; United States v. 25,936 Acres of Land, Etc., 153 F. (2d) 277; Grand River Dam Authority v. Gray, 192 Okla. 547, 138 P. 2d 100; Eagle Lake Improvement Co. v. United States, 160 F. (2d) 182; Nichols Em. Dom. V. 6 § 24.1 [1], p. 4; 69 A. L. R. 1263; and 98 A. L. R. 260.
See, also, Restatement Of The Law, Property, § 53:
“. . . The condemning party is generally privileged to join in a single proceeding all persons having estates or interests in the affected land. Cor-relatively, it is the general rule that all persons having interests in land which has been appropriated, or is about to be appropriated, are privileged to unite in a single proceeding to obtain compensation for the land taken. An occasional statute explicitly makes these privileges, also duties. Thus the procedure, in the absence of a specifically inconsistent statute, is to fix a lump sum value for the estate in fee simple absolute and then to take up the distribution of this sum among the persons having interests in the affected land.” (pp. 186, 187.)
On the constitutional aspects, see particularly State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S. W. 2d 80, 69 A. L. R. 1256:
“Refusal to assess damages of the owner of a specific interest in property taken by eminent domain separately from those of other owners of interests in the property does not violate constitutional provisions against deprivation of property without due process of law or taking private property for public use ■yvitbout just compensation, to be paid before the property is disturbed or the proprietary rights of the owner therein devested, although the owner of the specific interest may be compelled to bear the expense of litigation, with other interested persons, as to the apportionment of the award among themselves, and such litigation may continue until long after he has been dispossessed of the property.”
The separate interest of the owner of a leasehold estate and the right to share in compensation when all or part of the property leased is taken by eminent domain is well settled and not disturbed by the decision here. (Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009; State Highway Comm. v. Weiss, supra; State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850; and Miles v. City of Wichita, 175 Kan. 723, 267 P. 2d 943.) But, the right to share in the award does not entitle such owner of a leasehold interest to a separate trial to determine compensation and damages for the separate interest appropriated.
For contrary holdings see Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. ed. 725, 30 S. Ct. 459; United States v. Certain Parcels of Land, 43 F. Supp. 687; Duckett & Co. v. United States, 266 U. S. 149, 69 L. ed. 216, 45 S. Ct. 38; 69 A. L. R. 1263; 29 C. J. S. Eminent Domain § 279; and State v. Platte Valley Public Power and Irrigation District, 147 Neb. 289, 23 N. W. 2d 300, 166 A. L. R. 1196.
The force of this decision means that the district courts of Kansas must not docket separately appeals from the award of appraisers by owners of separate estates or interests in a single parcel of land. Such appeals cannot be lawfully so severed and later consolidated for trial. To the contrary, an appeal of any owner or interest holder brings to the court in its entirety the sole question of the sufficiency of the award to be docketed and tried as a single action.
It is recognized that many of the district courts have been treating such appeals as a procedural matter; thus each appeal has been docketed separately with consolidation for later trial a matter of discretion by the court. Such is the case here. Under these facts and circumstances the right of consolidation of such appeals under G. S. 1955 Supp. 26-102 must be considered as a matter of substantive right and not one of procedure. Where such appeals are docketed separately a refusal to consolidate for trial is contrary to law.
It is important to emphasize that the rule of this case applies to eminent domain proceedings and to appeals in such proceedings by the petitioner or owners of an estate or interest in a single parcel of land. The decision of this case has no application to, and in no wáy changes, the established rule that appeals from awards of appraisers by owners of an estate or interest in separate parcels of land may be docketed separately and may be consolidated for trial as shall be determined in the sound discretion of the court, under the authority of G. S. 1949, 60-601 and 60-765.
The rehearing of this matter is limited to the issue of the consolidation of appeals in this case. The court did not grant a rehearing on .the cross appeal of appellee in re the limiting of the appellee on certain cross-examination. As to that point the previous decision of this court in 181 Kan. 51 stands. All other portions of that decision are withdrawn and set aside.
The judgment of the district court of Osage County is reversed in part and the case remanded with directions to consolidate the separately docketed appeals and proceed with a new trial of all appeals as a single action to determine the sufficiency of the award.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a judgment of the district court affirming, on appeal from the probate court, a journal entry of final settlement in the estate of a deceased testator. Defendant prevailed and plaintiff appeals.
It is conceded that only oné question is involved herein and we will not burden the opinion with the preliminary matters relating tq. the journal entry of final settlement which ultimately assigned the ;reál; and personal property of which testator died seized to appellee, who was testator’s sole legatee, devisee and beneficiary under the will. The will provided for appointment' of appellee as executor, and then further provided:
“First: I direct that my Executor, hereinafter named, pay all of my just debts and obligations, including funeral expenses, as soon after my death as is practicable, and I request that my Executor erect in my memory a suitable tombstone on my grave site.
“Second: I give, devise and bequeath all the rest, residue and remainder of my property of whatsoever kind or nature, whether real, personal or mixed, and wheresoever situated, to my dear friend, Harlow L. Preston, of Topeka, Kansas, if he shall survive me, to be his absolutely to do with as he may wish.”
Up to this point in the will, there can be no question but that appellee took an absolute fee simple title to the entire estate of the testator. However, the following paragraph is the one appellant relies upon to establish a “precatory” trust in his favor:
“Third: I am not unmindful of two children born to my former wife, Etta Charowhas, during the years of our marriage, said children being Pete Charowhas, Jr. and Cherrie Charowhas, who are now residing at Bogota, New Jersey, and while I am doubtful as to the paternity of the said Cherrie Charowhas, it is my will that whether she be the issue of my body or not, neither she nor Pete Charowhas, Jr., my dear son, shall take anything by reason of this will; but I believe that my dear friend, and the sole beneficiary of this will, Harlow L. Preston, will never permit my little son, Pete Charowhas, Jr. to suffer want or to lack the necessities of life and while I put no restrictions upon my said friend’s use of the property in my estate, I make this will in reliance upon him to use such part of my estate as in his sole discretion may be necessary and advisable to be used for the benefit of my son.”
The remaining paragraphs of the will need not be set out here as they are not necessary to a determination of the question before us.
This will is without a doubt clear, unambiguous, and concise. Therefore, we must apply our cardinal rule for the construction of a will, to which all others must yield, and that is we are bound to ascertain and follow the intention of the testator. In construing a will the court is the judge of the law and must consider all the provisions of the will. It cannot delete any part of it. (Diver v. Hendrix, 178 Kan. 253, 257, 284 P. 2d 1080.)
Appellant claims this will by its third paragraph establishes a “precatory” trust in his favor, but it is evident from the record and from remarks made during oral presentation of the case before this court that a constructive trust was meant by the use of the term “precatory trust.” He further contends the words, '
“I believe that my dear friend, and the sole beneficiary of this will, Harlow L. Preston, will never permit my little son ... to suffer want or to lack the necessities of life . . . ,”
are mandatory, but we cannot agree with that interpretation. The words are precatory because they clearly apply to appellee in his role of beneficiary. As was stated in the Diver case, supra,
. . while precatory words may apply to beneficiaries they do not apply to executors. When executors are given directions as to what to do or not to do it is their duty to conform. They have no right or capacity to do otherwise.” (p. 257.)
Another and very potent reason for this will creating a devise of testator s entire estate in fee simple to appellee is the rule stated in Holt v. Wilson, 82 Kan. 268, 108 Pac. 87, that,
“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. f 1.)
All the principles stated herein were set out and discussed thoroughly in the recent case of In re Estate of Cribbs, 180 Kan. 840, 308 P. 2d 111.
While courts do not favor a parent disinheriting a child, we must carry out the intent of a testator when he makes that intent clear and definite by the terms of his will.
The judgment of the trial court is 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 twenty-nine individual nonunion workmen who were employed by Jarvis Construction Company (hereafter Jarvis), prime contractor, in the construction of a Fine Arts Building at Marymount College in Salina, Kansas. The plaintiffs are all of Jarvis’ employees on the job except two.
The appellants (defendants below) are The Construction 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.
The parties stipulated that the evidence and testimony submitted on the hearing for a temporary injunction be considered by the court in its determination as to whether or not a permanent injunction should issue. The defendants interposed a demurrer to the evidence of the plaintiffs and the trial court took the ruling under advisement requesting briefs and suggested conclusions of fact and conclusions of law. The defendants then rested their cause without presenting any evidence or testimony other than a stipulation entered into by counsel for the parties subject to objection of the plaintiffs that the facts stipulated were irrelevant and immaterial to the action.
The trial court overruled the demurrer to the evidence and granted both the temporary and permanent injunctions in accordance with conclusions of fact and conclusions of law entered July 26, 1956. Without filing a motion for new trial the defendants appealed from the judgment, rulings, findings, decisions and orders made on July 26, 1956, specifying as error:
“1. Overruling of defendants’ Demurrer to Evidence.
“2. That the judgment is against the weight of the evidence, and considering all of it to be true, the judgment is erroneous as a matter of law.”
When evidence is attacked by demurrer, the court must accept all of the evidence as true, give it the benefit of all inferences that may be properly drawn therefrom, consider only such portions thereof as are favorable to the party adducing it, disregard that which is unfavorable, and weigh no contradictory part or differences between direct and cross-examination, and if so considered there is any evidence in the record before this court which sustains plaintiffs’ case, the demurrer must be overruled. (Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 280 P. 2d 623; Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396; and Hamilton v. Ferguson, 181 Kan. 474, 312 P. 2d 232.)
Under the foregoing rules the evidence establishes that:
(1) Jarvis was the prime contractor on a Fine Arts Building at Marymount College located in Salina, Kansas, which was in the process of construction on May 23, 1956.
(2) The plaintiffs are twenty-nine individual nonunion workmen employed by Jarvis on the Marymount construction project. They are all of Jarvis’ employees on this project except two, thus comprising a substantial majority. Some are masons and the remainder are mason tenders or common laborers. All are properly subject to organization, except that the masons are not eligible to join the defendants (Local No. 685).
(3) The plaintiffs are gainfully employed in a lawful business, conducted by Jarvis, for the purpose of earning a livelihood for themselves and their families. They desired to continue in their work with an employer who desired to continue their services.
(4) The construction project at Marymount College, in addition to Jarvis’ employees, involved gypsum deck installation men, metal lathers, plumbers, electricians, sheet metal men, glaziers and carpenters, who were employed by subcontractors and other prime contractors on the Marymount project, other than Jarvis. These workmen were all union tradesmen. None were members or affiliated with the defendants (Local No. 685).
(5) The Union (Local No. 685) established a picket line, by placing one picket with a banner reading:
“Laborer Employees of Jarvis Construction Co. are invited to join Laborers Local Union No. 685 to obtain & help maintain union wages & working conditions. Labor Local No. 685, 148K S. Santa Fe, Salina, Kansas, Phone 70077”
at the Marymount College construction site on May 23, 1956, at 7:30 in the morning. The picket was left on until 4:30 in the afternoon. This routine of picketing was repeated each working day until June 5, 1956.
(6) The purpose of the picketing conducted by the Union (Local No. 685) was to organize the nonunion employees of Jarvis, ultimately to have Jarvis enter into collective bargaining and negotiations with the Union (Local No. 685).
(7) The picketing has at all times been peaceful picketing by the same individual, an employee of the Union (Local No. 685) and in no way associated or affiliated with any employer or other Union having workmen on the Marymount construction project, thus properly termed stranger picketing.
(8) The immediate effect and result of the picket line was that all union personnel refused to work on the Marymount project. Jarvis’ foreman testified:
“. . . All of the union workmen reported for work on May 23, 1956 and appeared to be ready to go to work at that time. When they saw the picket up there they looked around and they talked it over among themselves and they all left. Union carpenters, roofers, metal lathers, electricians and plumbers were there and none of them went to work. The only work that continued on the job was the brick work and common labor work. None of those men are in the union. No union men worked after May 23, 1956, the day upon which the picket line was put up, until the day the picket was removed.”
(9) Without the work of the union men (carpenters, electricians, plumbers, and other skilled craftsmen, who worked for subcontractors), all of them still having some work to do on the project after May 22, 1956, the job gradually slowed and came to a halt on June 5, 1956. Efforts of Jarvis to get union men to come to work while the picket line was maintained were unsuccessful.
(10) On June 4, 1956, plaintiffs caused to be served on the Union (Local No. 685) a written demand which reads in part:
“There will be no more work for any of said workers to do as of Tuesday, June 5, 1956, since their particular work can no longer progress until certain electrical roofing, and other integral work is done. The workers in the related and integral trafts [crafts] refuse to cross the picket line which you have established and are maintaining on that job. Although the workers whom we represent have been and will continue to cross that picket line, they do not now have jobs available for the reason above stated, which is resulting in irreparable injury to these designated persons.
“In view of the fact that your picket line is depriving them of the right to work and to earn a living for themselves and for their families, demand is hereby made upon you that the picket line be permanently withdrawn on or before 8:00 o’clock a. m. Tuesday, June 5, 1956.”
This notice and demand was ignored by the Union (Local No. 685) and picketing continued until enjoined by the trial court on June 5, 1956.
(11) The trial court’s temporary restraining order of June 5,1956, was promptly obeyed by the Union (Local No. 685) and the union tradesmen affiliated with other labor organizations, who were em ployed by the subcontractors and other prime contractors, resumed work.
(12) No labor dispute or controversy of any kind existed on May 23, 1956. There was no labor dispute or controversy between Jarvis and any of his employees (plaintiffs), concerning terms or conditions of employment, or between Jarvis and the Union (Local No. 685), concerning the right or process or details of collective bargaining, or concerning the designation of bargaining representatives. Further, there was on said date no labor dispute or controversy between plaintiffs and the Union (Local No. 685), in that none are now or ever have been members of the-Union (Local No. 685) and none have been approached by the Union (Local No. 685) and personally solicited as members.
(13) The established policy and tradition of unions and union workmen is that they will not cross any picket line to enter their working site.
No question arises as to whether jurisdiction of the case lies in the Federal or State courts. This aspect of the case will be dealt with later in the opinion.
The immediate questions presented are: Does the Kansas law prohibit peaceful picketing for organizational purposes under the circumstances of this case? If this question is answered in the affirmative, is such picketing protected under the “free speech” provision of the Federal Constitution?
Applicable Kansas statutes provide for the rights of employees, define the unlawful acts of an employer, or any other person, and provide that which is against the public policy of this state.
G. S. 1949, 44-803, provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, and such employees shall also have the right to refrain from any or all such activities.” (Emphasis added.)
G. S. 1955 Supp., 44-808, provides in part:
“It shall be unlawful for any employer
“(1) To interfere with, restrain, or coerce employees in tire exercise of the rights guaranteed in section 44-803 of the General Statutes of 1949: Provided,. however, That no provision of this act shall be so construed as to deprive that employer of his right of ‘free speech’ as guaranteed by both the state and fed-' eral constitutions.” (Emphasis added.)
G. S. 1955 Supp., 44-809, provides in part:
“It shall be unlawful for any person
“(12) To coerce or intimidate any employee in the enjoyment of his legal rights, including those guaranteed in section 44-803 of the General Statutes of 1949, or any acts amendatory thereof or supplement thereto, or to intimidate his family, picket his domicile or injure the person or property of such employee or his family or to in any way discriminate against any employee, member of a labor organization or other person by reason of his exercise of any right guaranteed to him by the provisions of this act.” (Emphasis added.)
G. S. 1949, 44-813, provides:
“Except as specifically provided in this act, nothing therein shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work; nor shall anything in this act be so construed as to invade unlawfully the right to freedom of speech.” (Emphasis added.)
Before turning to the precise issues there are additional facts to be gathered from the evidence or inferred therefrom which should be discussed.
The evidence concerning which there is no conflict in the record discloses that the picketing in the instant case was peaceful and effective. The picket line in a sense is a wall erected between Jarvis’ construction site at Marymount College and the public. It is clear from the evidence that the union members, employed by the trades and crafts supplying a component part of the construction of the Fine Arts Building at Marymount College, both in labor and materials, refused to cross the picket line, individually adhering to the “traditional policy” of union members.
The responsible officers and agents of the Union (Local No. 685) were fully aware of the established union policy and tradition and had every reasonable opportunity to know, therefore must be presumed to have known, that the picketing would and did result in bringing construction work to a standstill, and that as a result of said picketing the plaintiffs would be and were thrown out of their chosen work on June 4, 1956, and continuously thereafter until the picket was removed by the restraining order of the district court on June 5, 1956.
There is no evidence that the Union (Local No. 685) attempted any organizational activities with plaintiffs or that Jarvis in any way interfered. Except for this action brought by the plaintiffs against the Union (Local No. 685) there was no interference whatever with the Union by Jarvis or the plaintiffs.
The plaintiffs, as the nonunion employees of Jarvis, .desired to continue in their employment with Jarvis in their nonunion status so that they might fully enjoy their right to work in freedom and thereby provide a means of livelihood for themselves and their families.
'There is no grievance existing between Jarvis and the plaintiffs relating to wages, hours and conditions of employment. On the record the grievance, if it may be called a grievance, of the Union is not with Jarvis, but with the plaintiffs for not joining the Union (Local No. 685). We are here concerned with picketing, solely for organizational purposes. This was firmly established by the plaintiffs in calling Mr. C. S. Harper, employed as a business agent for the Union (Local No. 685), an adverse witness, to testify in their behalf. He stated that the purpose of this picket was to organize the laborers on the Jarvis construction project at Marymount College; that the organizational banner carried by the picket was designed to organize the men and that the purpose of Local Union No. 685 was to take care of the laborers, organize the laborers on construction projects. Our question remains whether the Union (Local No. 685) may press for its .immediate purpose of seeking to organize the nonunion employees of Jarvis, plaintiffs herein, by peaceful picketing at the Marymount construction project.
In our view peaceful picketing for organizational purposes under all of the facts and circumstances herein presented is unlawful under the Kansas law, and may be enjoined. We shall first approach this problem from the “labor-relations” principle as distinguished from the “free speech” principle of picketing. Although there is no dispute between Jarvis and the plaintiffs, they being its employees, yet the employer under the Union’s theory may be subjected to irreparable loss from work directed in terms to the persuasion of nonunion employees to join a union. This peaceful picketing generates a coercive force to secure new members for the Union. It is apparent that this force is applied to the employer to urge his employees to join the Union to save his business, and to the employees to join the Union to save their livelihood.
The Union in reaching for the employees applies a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization. To say that picketing is not designed to bring about such action is to be completely oblivious to an obvious purpose of picketing — to cause economic loss to the business during non-compliance by the employees with thé requests of the Union.
On all the facts and circumstances presented by this record, one would be credulous, indeed, to believe that the Union had no thought of coercing the employer to interfere with its employees in their right to join or refuse to join the Union (Local No. 685). We have not the slightest doubt that it was the hope of the Union that the presence of pickets at Marymount College would interfere with the construction of the Fine Arts Building at Marymount College and eventually bring the progress of the work to a standstill, just as the evidence discloses that it did.
We now turn to the Kansas statute (44'803, supra) protecting the worker in his unquestioned right to organize, join or assist labor organizations to bargain collectively and to refrain from any and all such activities. The employer may neither interfere or coerce his employees nor be compelled to interfere or coerce his employees in matters of organization (44-808, supra). He cannot lawfully stop his loss by reason of the strangulation of work progress from picketing by denying full freedom of association to his employees. The freedom to associate of necessity by the terms of the statute means as well freedom not to associate.
The same prohibitions are applicable to “any person” within the meaning of 44-809, supra. We see no reason why a labor union and its officials or agents, as here, are not included within the definition of the term “any person.” Even though the organization sought by the Union may be in the best interests of the employee, it yet remains his choice whether to associate with a union by joining or not to associate by refusing to join. The employee may have no desire for union affiliation or he may have a preference for a union other than the defendant Union (Local No. 685). In either case the choice rests with the employee. The freedom of the employee thus remains a reality.
The émployee cannot escape a share of the irreparable damage which inevitably results to the business on which his livelihood depends. Irreparable damage to the employer must in any appreciable period be like damage to the employee. The Union says in substance to the twenty-nine nonunion workers (plaintiffs herein):
“loin Local No. 685 which we invite you to join or we will continue to harm the business in which you are employed.”
The picketing is an act of interference with the employee in the exercise of his personal rights. It is a coercive force directed by the Union against the employee. This conduct violates the language and the purpose of 44-809, supra, and it is unlawful.
Under all the facts and circumstances presented by the record in this case, tested by rules applicable on demurrer, we find that the picketing of the Marymount College construction site has been conducted for the purpose of coercing, intimidating and inducing Jarvis to coerce or intimidate plaintiffs to become members of Local No. 685, and for the purpose of injuring Jarvis in its business because of its refusal to in any way interfere with the rights of plaintiffs to join or not to join a labor organization. We further find that the picketing of the Marymount College construction site has been conducted by the Union (Local No. 685) for the purpose of coercing or intimidating the plaintiffs to become members of said Union, and for the purpose of injuring the plaintiffs in their right to work and earn a livelihood because of their refusal to join said Union. Roth of these union objectives are unlawful under Kansas law and we do not hesitate to declare that plaintiffs, about to be driven out of employment, are real parties in interest and aggrieved.
A union may reach and persuade the employee to join without directly touching or affecting the interests of the employer. There is no evidence in the record that any efforts were made by the Union in this direction with plaintiffs.
The foregoing factual situation is presented in Vogt, Inc., v. International Brotherhood, 270 Wis. 315, 71 N. W. 2d 359, (rehearing, 74 N. W. 2d 749) on writ of certiorari to the Supreme Court of Wisconsin in Teamsters Union v. Vogt, Inc., 354 U. S. 284, 77 S. Ct. 1166, 1 L. Ed. 2d 1347, decided June 17, 1957, where state action which enjoined peaceful picketing was sustained. In Vogi the Supreme Court of the United States restated the principles governing this case in its most recent pronouncement on the subject. It gives perspective to a changing philosophy. In justification of the position taken the court said:
“It is inherent in the concept embodied in the Due Process Clause that its scope be determined by a ‘gradual process of judicial inclusion and exclusion,’ Davidson v. New Orleans, 96 U. S. 97, 104. Inevitably, therefore, the doctrine of a particular case ‘is not allowed to end with its enunciation and . . . an expression in an opinion yields later to the impact of facts unforeseen.’ Jaybird Mining Co. v. Weir, 271 U. S. 609, 619 (Brandeis, J., dissenting). It is not too surprising that the response of States — legislative and judicial — to use of the injunction in labor controversies should have given rise to a series of adjudications in this Court relating to the limitations on state action contained in the provisions of the Due Process Clause of the Fourteenth 'Amendment. It is also not too surprising that examination of these adjudications should disclose an evolving, not a static, course of decision.”
At the time the instant case was argued it was chronologically impossible for counsel to have the benefit of the Vogt case. JTherefore, to burden this opinion extensively with cases cited by council for the parties is unwarranted.
In Vogt both court and dissenting opinion undertake masterfully to discuss and classify many of the cases on this subject. They include Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 124, 66 L. Ed. 254; Senn v. Tile Layers Union, 301 U. S. 468, 57 S. Ct. 857, 81 L. Ed. 1229; Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Drivers Union v. Meadowmoor Co., 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 386; A. F. of L. v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855; Carpenters Union v. Ritter's Cafe, 315 U. S. 722, 62 S. Ct. 807, 86 L. Ed 1143; Bakery Drivers Local v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178; Cafeteria Union v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58; Giboney v. Empire Storage Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834; Hughes v. Superior Court, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985; Teamsters Union v. Hanke, 339 U. S. 470, 70 S. Ct. 773, 94 L. Ed. 995; Building Service Union v. Gazzam, 339 U. S. 532, 70 S. Ct. 784, 94 L. Ed. 1045; Plumbers Union v. Graham, 345 U. S. 192, 73 S. Ct. 585, 97 L. Ed. 946; and People v. Charles Schweinler Press, 214 N. Y. 395, 108 N. E. 639, 28 Harv. L. Rev. 790.
The issue presented by this case is also Pappas v. Stacey and Winslow, 151 Me. 36, 116 A. 2d 497, where on appeal to the Federal Supreme Court the appellee’s motion to dismiss for lack of a substantial federal question was granted (Stacey et al. v. Pappas, 350 U. S. 870, 76 S. Ct. 117, 100 L. Ed. 770).
The union contends that peaceful picketing described in the instant case is protected under the “free speech” provision of the Federal Constitution.
In Vogt, Inc., v. International Brotherhood, supra, the Wisconsin Supreme Court on rehearing said:
“. . . We gave insufficient notice to the fact that free speech is not the only right secured by our fundamental law, and that it must be weighed, here for instance, against the equally important right to engage in a legitimate business free from dictation by an outside group, and the right to protection against unlawful conduct which will or may result in the destruction of a business; that both the right to labor and the right to carry on business are liberty and property. We left out of calculation the rule that the court is to consider not only the established facts as' they appear in the record, but that it should also give attention to the inferences reasonably and justifiably to be drawn therefrom.” (p. 321b.) (Emphasis added.)
In Vogt the United States Supreme Court answered the “free speech” argument of the Union by reviewing decisions (Bakery Drivers Local v. Wohl, supra; Carpenters Union v. Ritter's Cafe, supra; Giboney v. Empire Storage. Co., supra; Hughes v. Superior Court, supra; Teamsters Union v. Hanke, supra; Building Service Union v. Gazzam, supra; and Plumbers Union v. Graham, supra) leading to the conclusion that:
“This series of cases, then, established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.” (p. 293.)
The court then said:
“. . . In this case, the circumstances set forth in the opinion of the Wisconsin Supreme Court afford a rational basis for the inference it drew concerning the purpose of the picketing . . . that the picketing was for the purpose of coercing tire employer to coerce his employees . . .” (p.295.)
While picketing is a mode of communication, it is inseparably something more and different.
“. . . [Industrial picketing] is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated . . .” (Mr. Justice Douglas, joined by Black and Murphy, JJ., concurring in Bakery Drivers Local v. Wohl, supra, p. 776.) (Emphasis added.)
“. . . Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word . . .” (Hughes v. Superior Court, supra, p. 465.) (Emphasis added.)
“. . . But since picketing is more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey, this Court has not hesitated to'uphold a state’s restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity. . . .” (Building Service Union v. Gazzam, supra, p. 537.)
In the instant case the message which the banner bore in its fine print was insignificant. Certainly, after June 4, 1956, when the demand was served upon the defendants the message carried upon the banner could not possibly have been intended for the enlightenment of the plaintiffs.
In view of the foregoing authorities, we hold that peaceful picketing under the facts and circumstances of the instant case is not protected under the “free speech” provision of the Federal Constitution, since its purpose is unlawful and contrary to the public policy expressed by the legislature of Kansas.
The employees of Jarvis, casting about for a mode of continuing their work to earn a livelihood in the face of what they conceived to be an unlawful act, filed their action against the Union. We have found no case in this jurisdiction, nor have we been cited to any, in which a suit was brought by employees to restrain the Union as in the instant case. While this may appear to be a novelty, this procedure is authorized by G. S. 1955 Supp., 44-814, which provides:
“Any person violating the provisions of this act shall not be guilty of a criminal offense except as otherwise provided by law, but may he enjoined hy the attorney general or the county attorney of the proper county or any aggrieved party from violating the provisions thereof hy action in the district court of the proper county.” (Emphasis added.)
Clearly under the statute, the plaintiffs are the “aggrieved” and the Union is embraced within the term “any person” violating the provisions of the act. The State of California has held an action by the employees against the union proper. (McKay v. Retail Auto. S. L. Union No. 1067, 16 Cal. 2d 311, 106 P. 2d 373; [writ of certiorari denied, 313 U. S. 566, 61 S. Ct. 939, 85 L. Ed. 1525].)
We conclude that the trial court properly overruled the demurrer to the evidence of the plaintiffs.
Turning our attention to the defendants’ second specification of error, it must be emphasized that an appeal was taken by the defendants from the judgment of the trial court, entered pursuant to submission of the case as heretofore stated, without filing a. motion for new trial.
This court has held on numerous occasions that where the trial court has made findings of fact and conclusions of law thereon, which either included or indicated a judgment, the same were not subject to review on appeal in the absence of a motion for new trial, lacking which the only question left was the sufficiency of the findings and conclusions to support the judgment. (Arnall v. Union Central Life Ins. Co., 157 Kan. 535, 142 P. 2d 838; and Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553.) An analogous rule is indicated where appeal is taken from the ruling of the trial court overruling the motion for new trial, but the ruling is not specified as error. (McIntyre v. Dickinson, 180 Kan. 710, 307 P. 2d 1068, and cases cited therein.)
The result is that defendants’ specification of error — challenging the judgment as against the weight of evidence, and considering all of it to be true, that the judgment is erroneous as a matter of law — presents nothing for appellate review.
Are the findings and conclusions sufficient to support the judgment? The trial court in announcing its judgment on July 26, 1956, incorporated sixteen findings of fact, which it denominated “Conclusions of Fact” and eight conclusions of law. The findings of fact are similar in all respects to those heretofore indicated in reviewing the evidence on demurrer. The trial court’s finding No. 13 reads:
“The court finds and believes that certainly from the moment of the service of plaintiffs’ Exhibit 3 on June 4, 1956, upon defendant Local Union No. 685 and its responsible officers and agent, the aim, purpose, and objective of defentant Local Union No. 685, its members, William Scholl, its President, and C. S. Harper, its business agent, in maintaining said picketing, was to thereby deprive plaintiffs of their right to work for Jarvis Construction Company on said construction project.”
When considered in connection with all other findings made by the trial court, we regard this finding as equivalent to a finding that the aim, purpose and objective of the Union (Local No. 685) was to coerce or intimidate the plaintiffs to become members of the Union (Local No. 685) and to injure the plaintiffs in their right to work and earn a livelihood because of their refusal to join said Union.
The general import of the trial court’s conclusions was that the plaintiffs had no adequate remedy at law against an imminent, irreparable injury resulting from picketing which the trial court characterized as unlawful. Accordingly, judgment was entered permanently enjoining the defendants from further injuring plaintiffs by picketing. The findings made by the trial court and the general conclusion based thereon are sufficient to support the judgment.
It matters not that some of the reasons given by the trial court in arriving at its general conclusion may have been erroneous. Where the judgment rendered by the trial court is supported by the facts in the case, and must necessarily have been rendered under the law on the facts presented, it will not be reversed because the trial court adopted a wrong theory of the law, and based its judgment on such erroneous theory. (Scattergood v. Martin, 57 Kan. 450, 46 Pac. 935; Saylor v. Crooker, 97 Kan. 624, 156 Pac. 737; La Harpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, 8 P. 2d 354; and Foster v. City of Augusta, 174 Kan. 324, 256 P. 2d 121.)
One other point merits consideration. It is apparent from defendants’ presentation of the case that reliance is placed upon an attack against State court jurisdiction.
This is founded upon the contention that, if an unfair labor practice has been committed, it affects interstate commerce, a field in labor relations matters which has been pre-empted by Congress.
If, on the record presented to this court in the instant case, the picketing affects interstate commerce, there can be no doubt but that exclusive jurisdiction has been vested by Congress in the National Labor Relations Board to determine such labor dispute under recent decisions. (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 this date; and Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349; Case No. 40,282, decided this date.)
The defendants contend, by merely calling the trial court’s attention to interstate commerce in connection with a labor relations matter before it, which is either protected or prohibited by the Labor Management Relations Act, 1947, that the State court should decline jurisdiction, citing Amalgamated Meat Cutters, Etc. v. Johnson, 178 Kan. 405, 286 P. 2d 182. A reading of that case reveals that there the National Labor Relations Board had taken jurisdiction by sending examiners into the field to investigate the merits, and the only purpose sought by an action in the district court was to procure a restraining order pending outcome of the matter before the Board which Ohse, the employer, had initiated. Clearly, this does not sustain defendants’ position. There all parties admitted that the National Labor Relations Board had jurisdiction.
Prior to the submission of the case the parties entered into a stip ulation, heretofore mentioned, which was objected to by the plaintiffs as irrelevant and immaterial. This stipulation provided that Jarvis
“. . . does at this time hold construction contracts with the United States Government involving projects at the Smolcy Hill Air Force Base, the total contract price of which is approximately $330,000.00, and the terms of which contract obligate said contractor to finish said work within the term of the calendar year.”
Apparently, it is this stipulation that has led the defendants to attack the jurisdiction of the State court. This stipulation in and of itself is not an admission by plaintiffs that interstate commerce is affected in the instant case. The construction project and the picketing in the instant case is at Marymount College. It is the employees on this project that are the plaintiffs. Jarvis is not a party to the action. Furthermore, the making of a contract in and of itself does not necessarily affect commerce. To ascribe the import to this stipulation which defense counsel seek, would require many additional facts. These facts must be presented in the form of evidence. Gratuitous statements made by counsel for defendants, allegations in an answer, statements in defendants’ brief, and statements set forth in the notice of appeal are not entitled to the dignity of evidence. The stipulation, therefore, is irrelevant and immaterial; that the trial court so regarded the stipulation is apparent.
Whether the defendants’ activities were within the jurisdiction of the trial court or were such as to empower the National Labor Relations Board “to prevent any person from engaging in any unfair labor practice . . . affecting commerce” (29 U. S. C. A. § 160 [a]), is a question of fact to be determined by the trial court. (Asphalt Paving v. Local Union, supra.) Whether interstate commerce is affected is a finding of fact upon which jurisdiction rests, and it must be determined from the evidence where State jurisdiction is challenged.
The trial court, without making a specific finding as to whether or not it had jurisdiction, did exercise state jurisdiction, and it must therefore be presumed that the trial court found that it had jurisdiction. In fact, no other conclusion could be reached since there is not one scintilla of evidence in the record before this court disclosing that interstate commerce is affected. In a recent case, In re Estate of Snyder, 181 Kan. 222, 310 P. 2d 944, this court upon motion of the appellee struck an abstract from the files of this court wherein the appellant’s version of the “evidence” was narrated from statements of counsel made in the trial court. In State v. Brown, 181 Kan. 375, 312 P. 2d 832, a conviction in a criminal case was reversed because a foundation for the admission of the transcript of testimony of an absent complaining witness, given at a prior hearing, did not consist of evidence. It was held that bare statements of counsel were not entitled to the dignity of evidence and did not constitute the proof required to establish a proper foundation. It must be remembered in the instant case that defendants presented no evidence, relying upon their demurrer to plaintiffs’ evidence, and a submission of their case upon plaintiffs’ evidence.
The confusion as to interstate commerce arises because toe cases, summarized in Vogf, where the Supreme Court sustained a State court’s injunction, do not even mention the matter let alone demonstrate a finding on it. That is often a void left by the State court’s treatment of the matter. (International Ass’n of Machinists, A. F. L. Local 924 v. Goff-McNair Motor Co., 223 Ark. 30, 264 S. W. 2d 48; Hotel Restaurant Emp. & Bartenders Intern. Union, No. 522 v. Lambert, 258 S. W. 2d 694 [Ky. 1953]; Blue Boar Cafeteria Co. v. Hotel & Restaurant, etc., 254 S. W. 2d 335 [Ky. 1952]; and Howard v. Haven, 198 Tenn. 572, 281 S. W. 2d 480.)
A case similar in many respects to the case at bar is Plumbers Union v. Graham, supra (1953), where the State of Virginia had enjoined, as a violation of its “Right to Work” law, picketing which advertised that nonunion men were being employed on the construction of George Washington Carver School in the City of Richmond. The United States Supreme Court found there was sufficient evidence in the record supporting a conclusion that a substantial purpose of the picketing was to put pressure on the general contractor to eliminate nonunion men from the job and held that the injunction was not in conflict with the Fourteenth Amendment. No mention whatever is made in the decision concerning interstate commerce or the Labor Management Relations Act, 1947, and the case involves construction activity almost identical to that in the case at bar. Both concern construction of a school building with subcontractors employing union workmen where peaceful picketing resulting in work stoppage was enjoined by a State court.
We hasten to emphasize, however, that the instant decision is not based on a “common law right to work.” (See, Farnsworth & Chambers Co. v. Local Union 429, Etc., 201 Tenn. -, 299 S. W. 2d 8, Case No. 70,487, decided February 8, 1957, [reversed by per curiam decision, Electrical Workers Local Union v. Farnsworth & Chambers Co., 353 U. S. 969, 77 S. Ct. 1056, 1 L. Ed. 2d 1133]; Garner v. Teamsters Union, 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546; Smith v. General Motors Corporation, 128 Ind. App. -, 143 N. E. 2d 441; Yeager v. Internat. Brotherhood Etc., 39 Wash. 2d 807, 239 P. 2d 318; Weisenberger v. State, 202 Ind. 424, 175 N. E. 238; Railway Employes’ Dept. v. Hanson, 351 U. S. 225, 76 S. Ct. 714, 100 L. Ed. 1112; and Looper v. Georgia, Southern & Florida Railway Co., 213 Ga. 279, 99 S. E. 2d 101.)
This court, finding substantial evidence to support the exercise of State jurisdiction in the instant case, and trusting the integrity of the trial court, sustains the jurisdiction which an arm of its judiciary exercised.
It is inconceivable that a labor dispute involving local construction, without any evidence that interstate commerce is affected* could be declared to affect interstate commerce as a matter of law. If the local character of a given construction project involving employers and employees engaged in the building trades is construed as a matter of law to affect interstate commerce on the ground that it is an integral part of a vast nation-wide construction industry, it would in effect wipe out the whole distinction between interstate and intrastate commerce. There would be no limit upon the power of the Federal Government to regulate the economy of the country in the most far-reaching details. (See, Sperry v. Denver Bldg, & Const. Trades Council, 77 F. Supp. 321 [Dist Ct., D. Colo., 1948].)
The judgment of the trial court 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 overruling the motion to strike from the files a petition filed in probate court.
On or about the second day of February, 1955, Opal E. Sherk, appellant and cross-appellee herein, filed her petition in the probate court of Wyandotte County, Kansas, alleging that John Sherk died intestate as a resident of Wyandotte County, that she was his sur viving spouse and sole heir at law and that she be appointed administratrix of his estate. She was duly appointed.
On the 5th day of April, 1955, Wayne Sherk, appellee and cross-appellant herein, filed a petition in the probate court asking that Opal E. Sherk be discharged as administratrix and to probate an alleged lost or concealed will of decedent John Sherk. The court denied his petition.
On the same day, April 5, 1955, Wayne Sherk also filed a verified petition in a separately docketed action in the probate court of Wyandotte County entitled “In The Matter of the Partnership Estate of John Sherk, Deceased, and Wayne Sherk, Partners, doing business under the Firm Name and Style of Sherk’s Auto Supply.” In this petition Wayne Sherk alleged that John Sherk the decedent was his brother and that a partnership had existed between them since 1935 and that substantially all the assets of the estate of John Sherk belonged to the partnership. The petitioner further alleged that the partnership was dissolved by the death of John Sherk and prayed “that this court find and determine that a partnership existed between your petitioner and the said John Sherk; . . .” and that the petitioner as surviving partner be permitted to continue the operation of ihe business and administer all the partnership estate.
To the petition of Wayne Sherk, Opal E. Sherk filed a motion to •quash for the reason that the probate court was “without jurisdiction to determine the existence or nonexistence of a partnership in a separate action filed therein,” and for the further reason “that the •existence or nonexistence of a partnership, if not admitted, is an .action for the jury in a proper court.”
The court overruled the motion to quash.
Opal E. Sherk then filed an answer to the petition and the matter went to hearing. At the conclusion of the hearing she filed a demurrer which was overruled and judgment was entered finding that a partnership existed and that Wayne Sherk be appointed, take oath .and post bond to administer the partnership estate.
Opal E. Sherk then appealed to the District Court of Wyandotte County from the judgment of the probate court. After filing notice of appeal and obtaining service, Opal E. Sherk then filed in the District Court of Wyandotte County a “motion to strike from the files the petition filed by Wayne Sherk in the above matter.” In this motion Opal E. Sherk moved the court to strike the petition for the following reasons:
“First. It is within the equitable jurisdiction of the District Court to determine the existence or nonexistence of a Partnership, and if the facts are in dispute it becomes a question for the jury to determine.
“Second. That the Probate Court was without jurisdiction in a separate action such as case number 30738 (the partnership petition), to determine the existence or nonexistence of a partnership and to determine the title to personal property and real estate, and to hear and determine the issues alleged in said petition of Wayne Sherk.”
The district court overruled the motion to strike the petition; hence this appeal.
Appellant raises only this question on appeal:
“Did the Probate Court have power and jurisdiction to hear and determine the issues alleged in the petition of Wayne Sherk filed in the separate action number 30-738 filed in the Probate Court?”
Appellee challenges the right of Opal E. Sherk to be heard on this appeal and cross appeals on the failure of Opal E. Sherk to provide proper bond as administratrix of the estate of John Sherk, deceased.
Before the merits of this appeal may be considered, the jurisdiction of this court to hear it must be determined. While neither party to this appeal raises the point, the jurisdictional question to be determined is whether appellant has an appealable order before the court under the provisions of G. S. 1949, 60-3302 and 60-3303.
The established rule in this jurisdiction is that motions to quash, dismiss, strike and make definite and certain rest in the sound discretion of the trial court, and orders overruling such motions are not appealable under G. S. 1949, 60-3302 and 60-3303 unless they are final, affect a substantial right, or, in effect, determine the action. (Brown v. Kimble, 5 Kan. 80; Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817; St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P. 2d 1062; Hudson v. Hudson, 142 Kan. 358, 46 P. 2d 882; Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220; Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650; Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; LaHarpe Fuel Co. v. City of Iola, 152 Kan. 445, 448, 105 P. 2d 900; Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112; Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939; Giltner v. Stephens, 163 Kan. 37, 42, 180 P. 2d 288; Atkinson v. Sowersby, 165 Kan. 678, 683, 198 P. 2d 158; Hill v. Hill, 168 Kan. 639, 640, 215 P. 2d 159; Krey v. Schmidt, 170 Kan. 86, 223 P. 2d 1015; Sheahan v. Kansas Power & Light Co., 172 Kan. 399, 241 P. 2d 515; Marchant v. Layton, 173 Kan. 341, 245 P. 2d 973; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P. 2d 442; City of McPherson v. Smrha, 179 Kan. 59, 293 P. 2d 239; Boettcher v. Criscione, 180 Kan. 39, 299 P. 2d 806; Fogo, Administratrix, v. Steele, 180 Kan. 326, 304 P. 2d 451.)
This court may and has the duty to raise and determine its jurisdiction to hear an appeal and may dismiss the appeal although the parties have not raised the issue. (Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; In re Gambrell, 161 Kan. 4, 165 P. 2d 760; Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535; Pulliam v. Pulliam, supra; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531; In re Estate of West, 167 Kan. 94, 204 P. 2d 729; Rowing v. Douglas County Raw Drainage Dist., 167 Kan. 387, 207 P. 2d 457; In re Estate of Hilliard, 170 Kan. 617, 228 P. 2d 536; Willey v. Gas Service Co., 177 Kan. 615, 281 P. 2d 1092.)
A leading Kansas case is Pulliam v. Pulliam, supra. 1 A. L. R. 2d 418 contains an exhaustive annotation based on the law of this case.
In holding that the overruling of a defendant’s motion to strike a petition is not an appealable order, the court stated the rule as follows:
“Our code of civil procedure specifies the particular matters on which a trial court’s rulings will furnish a basis for an appeal (G. S. 1935, 60-3302). Resort to its provisions does not reveal that an order overruling a motion to strike is one of them. Clearly the motion to strike does not involve the merits of the action or any part thereof. It cannot be construed as a demurrer for we have held that an alleged defect in the affidavit verifying a divorce petition cannot be reached by demurrer (Warner v. Warner, 11 Kan. 121). Neither can it be regarded as the equivalent of a demurrer for if so treated it must, of course, concede the facts alleged in the pleading which if accepted as true unquestionably state a cause of action for divorce. Nor can the order overruling the motion be held to be a final order, the only other ground specified in the statute of possible application, not heretofore mentioned, which authorizes an intermediate appeal. True enough, we have held that an order striking a petition from the files is a final order and therefore appealable (Hicks v. Parker, 148 Kan. 679, 84 P. 2d 905; Dwinnell v. Acacia Mutual Life Ins. Co., 155 Kan. 464, 126 P. 2d 221). The reason for the rule announced in the decisions just cited is so obvious as almost to preclude the necessity of commenting upon it. When a motion to strike is sustained the plaintiff’s right to proceed with the cause on its merits is wiped out with the result the ruling is to all intents and purpose a final order for which the code gives a right of appeal. But the converse of such ruling has no such consequence. The overruling of a like motion does not determine the action or prevent a judgment. It not only leaves the defendant free to conduct his defense but also permits him after the cause has been tried upon its merits to present alleged trial errors and irregularities on final appellate review.” (p. 498.)
In this case the order of the district court overruling the motion to strike the petition from the files of the probate court was, not a final order and did not determine the rights of the parties to the action. The motion cannot be construed as a demurrer because there was no petition in the district court against which a demurrer could be considered. The order overruling the motion to strike is not an appealable order under the law and comes squarely within the above rule.
The Probate Code, G. S. 1949, 59-2401 to 59-2409 adequately provides for appeals to the district court on questions of jurisdiction. From the record before us it does not appear that either of the parties to this action at any time ever requested the probate court to certify or transfer this matter to the district court on the question of jurisdiction as provided by Section 59-2402 of the Code.
Under these circumstances the other contentions of the parties to this appeal need not be considered.
The appeal is dismissed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from- an order of the trial court sustaining the demurrer of appellee to the evidence of appellant.
The pleadings will not be set out since they are not at issue here. The evidence was prefaced with' some stipulated facts which will be condensed as much as possible without destroying salient parts thereof.
The first stipulation was that whenever the word insured was used in the pleadings, the term included along with the insured, John Lee Romans, any other person while using the insured automobile .with Romans’ permission, all as set out in section III of the policy. It was further stipulated that the accident occurred in Gage, Oklahoma, on August 15, 1953; that Romans owned the involved 1953 Buick coupe; that the Romans’ Buick was insured with appellee for bodily injury, property damage, comprehensive liability cover age and collision; Romans was present in the automobile and Minnie Nicholson was driving the automobile at the time of the accident; appellee received a letter dated August 20, 1953, from Bryan Billings, appellant’s attorney in Oklahoma (hereinafter referred to as Billings) which read:
“August 20, 1953
“Farmers Mutual Insurance Company
“3099 East Washington Avenue
“Madison 1, Wisconsin
“Gentlemen:
“I am attorney for Payne Jameson who was injured while riding in an automobile owned by your assured, John Lee Roman on August 15, 1953 at Gage, Oklahoma. Mr. Jameson sustained serious personal injuries in the wreck and has filed suit against Mr. Roman asking $5,000 damages for such injuries.
“Summons was served on Mr. Roman on August 20, 1953, and he must answer plaintiff’s petition by September 17, 1953. I enclose a copy of the petition herein. I also enclose herein a notice of attorney’s lien.
“Very Truly yours,
“Bryan Billings”
Appellee also received copy of the petition in the case of Jameson v. Romans in Woodward county, Oklahoma; on June 21, 1954, Billings notified appellee of the case of Jameson v. Nicholson, also in Woodward county, Oklahoma, and enclosed copy of the petition; Billings notified appellee of the whereabouts of Minnie Nicholson (hereafter referred to as Minnie); appellee did not make any formal defense in the Romans’ case or in Minnie’s case; certified copy of the journal entry in Minnie’s case was admitted in evidence and a certified transcript of the proceeding in Minnie’s case and also a certified transcript in the Romans’ case were admitted.
Other stipulations admitted in evidence certain exhibits, including the insurance policy, pertinent portions of which read:
“INSURING AGREEMENTS:
“(I) COVERAGES A AND B — BODILY INJURY AND PROPERTY DAMAGE LIABILITY
“(1) To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“(a) Bodily injury . . . sustained by any person caused by accident and arising out of the ownership, maintenance or use of the automobile.
“(II) DEFENSE SETTLEMENT, SUPPLEMENTARY PAYMENTS . . . the Company shall:
“(a) defend any suit against the insured alleging such injury . . . seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
“(III) DEFINITION OF INSURED
[covered by the first stipulation 'herein set out]
“CONDITIONS:
“The conditions, unless otherwise noted, apply to all coverages.
“(1) NOTICE OF ACCIDENT, COVERAGES A, B, AND C.
“When an’ accident occurs written notice shall be given by or on behalf of the insured to the company or any &f its authorized agents as soon as practicable. Such .notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.
“(2) NOTICE OF CLAIM OR SUIT, COVERAGES A AND B.
“If claim is made or suit brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representatives.
“(6) ACTION AGAINST COMPANY, COVERAGES A A.ND B.
“No action shall he against the company unless, as a condition precedent thereto, the insured shall have" fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial ...
“Any person . . . who has secured such judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person . . . any right to join the company as a codefendant in any action against the insured to determine the insured’s liability.” (Our emphasis.) - ,
On November 10, 1953, Billings wrote appellee reminding it of .the contents of his letter of August 20, 1953, and stating that Corbett L. Moore, the adjuster who was making an investigation on appellee’s behalf, was given what information Billings had, and further that on September 15, 1953, Tom Wells of Kansas City, Missouri, had telephoned Billings on behalf of appellee and had stated he had been unable to locate Romans or Minnie and he wanted further information from Billings; Billings had told Wells the address of Romans’ employer in Wichita; Billings later found that Romans was employed at the Osawatomie State Hospital and he conveyed this information to Wells, together with an offer to assist appellee by consenting to the filing of a belated answer on Roman’s behalf; Billings had also offered to waive notice if appellee wanted to take Romans’ deposition or he would discuss settlement with appellee; on November 5, 1953, Wells had called Billings and stated that it was John Lee Roman at Osawatomie and not the insured, John Lee Romans; that the company had already denied liability because of assured’s non-cooperation; Billings next notified Wells that Minnie was a patient of the Colorado State Hospital at Pueblo and she would be an additional insured under the policy omnibus clause; that she could not be guilty of noncooperation until she knew of her coverage and appellee had asked for her cooperation; and finally, Billings reoffered his consent to appellee’s filing a belated answer since judgment had not yet been taken in the Romans’ case.
On November 16, 1953, appellee replied that it denied coverage for failure of cooperation, the accident had never been reported, it could not find insured, and therefore it could do nothing toward settlement.
On March 30, 1954, Billings notified appellee that the Romans’ case would be tried on Monday, April 19, 1954, at 9:00 a. m. in the district court of Woodward county, Oklahoma. On April 2, 1954, appellee acknowledged Billings’ letter of March 30, 1954, and repeated its denial of coverage, as previously set forth in appellee’s letter of November 16,1953.
On April 30, 1954, Billings sent appellee the journal entry of judgment against Romans dated April 19, 1954, for $2,990.00 and made demand for payment thereof under the policy.
On May 3, 1954, appellee again by letter denied coverage and refused to take action on the judgment.
On June 21, 1954, Billings again wrote appellee informing it of an action by appellant against Minnie as an additional insured under the policy, enclosing a copy of the petition, advising that Minnie was an inmate of Western State Hospital, Fort Supply, Oklahoma, and stating that summons had issued for service on her according to Oklahoma statutes with answer date of July 16, 1954.
On November 19, 1954, Billings again wrote appellee informing it of the suit and enclosing a certified copy of the journal entry of judgment for $2,990.00 and requesting payment thereof by appellee under the policy.
The record further shows Minnie had been an inmate of Western State Hospital, Fort Supply, Oklahoma, having been first admitted in 1942. She was on conditional leave from the hospital on August 15, 1953, the date of the accident here involved. She was returned on April 19, 1954, and was an inmate at the time service of summons was served op her on July 16, 1954.
Certified copies of the petition, summons, and journal entry of judgment in the Romans’ case in Oklahoma; certified copies of the petition, affidavit of service of summons, application for and order appointing a guardian ad litem for the insane person; answer of the guardian ad litem, an attorney of Woodward, Oklahoma, and journal entry of judgment' in Minnie’s case in Oklahoma along with a certified copy of the transcript showing Minnie appeared by the guardian ad litem were all admitted in evidence, a jury was waived, and trial was had before the court.
Corbett L. Moore, by deposition procured by appellee on March 29, 1956, testified he was requested by Wells of appellee’s claim department to make an investigation of the accident and to get in touch with Mr. Romans to establish whether his car had been involved. He made a full written report to appellee on September 1, 1953. He reported he had been unable to locate either Minnie or Romans in Gage, Arnett, Shattuck, Fort Supply, or Woodward, Oklahoma.
The instant action was based on the certified journal entry of judgment in Minnie’s case. After ¡appellant rested his case, appellee demurred to the evidence and the trial court sustained the demurrer for the particular reason that appellant failed to show compliance with the conditions contained in paragraphs (1), (2), and (6) of the insurance policy in question. These sections are fully set out above under the “CONDITIONS” clause of the policy and will not be repeated.
Appellant does not contend nor does the record show that waiver or estoppel was pleaded as a defense for failure to give the required notice and therefore we will not discuss this since it must be pleaded before it can be proved. (Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991.)
Refore considering the propositions advocated by the parties, it may be helpful to set out some general rules already pronounced by this court in order to show how the following discussion is in keeping therewith. As early as in Insurance Co. v. Milling Co., 69 Kan. 114, 116, 76 Pac. 423, this court said that insurance companies are paid for protection. Their contracts are to be construed, when construction is permissible, most strongly against them and in favor of the insured. Then we find the well-settled rule that where a policy of insurance is so drawn as to require an interpretation, a construction most favorable to the insured will be adopted for the reason that the company prepares the contract of insurance, thereby selecting its own language. (Brown v. Accident Insurance Co., 114 Kan. 337, 338, 219 Pac. 505.) These basic rules were cited in substance and with approval in Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571, where the court added that as an insurer prepares its own contracts and it is its duty to make the meaning clear, if it fails to do so, the insurer and not the insured must suffer. Stated in another way, if the insurer desires to limit its liability, it should so state in the policy issued. (Spencer v. Casualty and Surety Co., 116 Kan. 491, 494, 227 Pac. 357; Chicago, R. I. & Pac. Rld. Co. v. Aetna Ins. Co., 180 Kan. 730, 308 P. 2d 119.)
Referring again to the Braly case, supra, it was there stated in substance that the words of a contract of insurance if clear and unambiguous are to be taken and understood in their plain, ordinary and popular sense (Blair v. Automobile Owners Safety Ins. Co., 178 Kan. 615, 290 P. 2d 1028; Bennett v. Conrady, 180 Kan. 485, 305 P. 2d 823) so as to give effect to the intention of the parties. (Youse v. Employers Fire Ins. Co., 172 Kan. 111, 238 P. 2d 472.) The yardstick used in the Braly case was that in determining this intention the test is not what the insurer intended the words of the policy to mean, but what a reasonable person in the position of an insured would understand them to mean. With these rules in mind, we approach the first proposition of whether there was sufficient written notice given to the insurer by or on behalf of the insured.
Insurance policy provisions requiring notice of accident, loss, injury or suit have been liberally construed in favor of the insured and should always be reasonably construed so as to justify them and conserve their true purpose for being a part of the contract. (Appleman’s Insurance Law and Practice, § 4731, p. 93.)
While an injured party (here considered by the litigants a third party, appellant) is generally under no obligation to give notice, he could not recover under the policy unless he sees to it that the insurer is notified of the accident or suit so that it would be proper to hold that the injured person may satisfy the notice requirements under the policy. (Applemans Insurance Law and Practice, § 4738, pp. 122, 123.) Such notice may be given by an additional insured, as Minnie was admitted to be, but could not be required until she knew of the policy and her coverage thereunder. (Appleman’s Insurance Law and Practice, § 4738, p. 124, § 4745, p. 143.) In other words, it mattered not who gave the notice so long as notice was given and the insurer had actual notice thereby, giving it an opportunity to make an investigation and to defend the suit. (Appelman’s Insurance Law and Practice, § 4741, p. 131.) See, also, Strole v. Combs, 143 Kan. 647, 650, 56 P. 2d 111; and annotation at 6 ALR 2d 661. As stated in the policy, the only purpose for giving notice was served in every respect by the letters from Billings and the telephone conversations had by him with appellee’s adjusters. Appellee had notice of the pendency of the actions for damages against the owner-insured Romans and the additional insured Minnie; it was advised of the claims and knew of every step taken in the damage actions. (Elliott v. Behner, 150 Kan. 876, 887, 96 P. 2d 852.)
For additional text authority Supporting the foregoing statements see 7 Couch on Insurance, § 1507, p. 5384, § 1508, p. 5388 and 1957 Pocket Supp., §§ 1505-1,1505-2, pp. 4, 5, § 1521a-1, pp. 8, 9; Volume II 1945 Cum. Supp. to Couch on Insurance, §§ 1505-1, 1505-2, pp. 1855,1856, § 1507, pp. 1856,1857, § 1508, p. 1859, § 1521a-1, p. 1874.
Appellee’s contention of lack of failure to forward suit papers by the insured is covered by the same authorities set out on the question of notice even though this responsibility seems to fall midway between the giving of notice and the duty to cooperate. (Appleman’s Insurance Law and Practice, § 4740, p. 126.)
This brings us to the question of failure of co-operation on the part of the insured, which is hinted by appellee but not strenuously urged. We will therefore mention only that this affects the insurer’s duty to defend the insured, or the additional insured, which duty was covered to some extent in Bennett v. Conrady, supra. Along with this point we might mention that inability to locate a policyholder before trial must show substantial prejudice to the insurer in defending an action (Appleman’s Insurance Law and Practice, § 4773, p. 156) but here the insurer made no effort to defend its insured. Any fact question as to bona fides concerns not only the good faith of the insured but that of the insurer as well. (Appleman’s Insurance Law and Practice, § 4784, p. 182.) Such is the only proper rule in order to avoid conspiracy between an insured and an injured person to filch the coffers of an insurance company, and on the other hand to prevent conspiracy between an insurer and an insured to defeat liability under a policy to some deserving person by having the insured absent himself .from the trial.
It was not mentioned by the parties, and we do not give any consideration thereto, but under the terms of this policy we wonder whether appellant himself as user (passenger) of the car was not an additional insured by reason of the omnibus clause. As to use, see Wood v. Insurance Co., 109 Kan. 801, 804, 202 Pac. 82; Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 54, 292 P. 2d 711.)
We can only conclude that the notice of the accident was sufficient, appellee had full and complete notice of the suits, and there was no prejudice to appellee shown in the evidence produced in the record that justified the trial court in sustaining the demurrer thereto.
We have not particularly mentioned all points raised by the parties, but we are of the opinion they are fully disposed of by what has been said herein.
The judgment is reversed and the case remanded with directions to overrule the demurrer and proceed with the trial.
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The opinion of the court was delivered by
Fatzer, J.:
This was a mandamus action instituted by appellant, Emalee Million, to compel appellee, The Board of Education of the City of Wichita, Kansas, to reinstate her as a teacher in Wichita High School East. The trial court denied appellant’s motion for a writ of mandamus, and she has appealed.
The pleadings will- not be summarized. The parties stipulated to the facts in the trial court, and those pertinent to this appeal are summarized as follows: For several years prior to 1954, appellant was employed as a high school teacher in the public-school system of Wichita and had permanent tenure as an “instructor” as that term is defined in the Tenure of Instructors Act (G. S. 1949, Chapter 72, Art. 54), which entitled her to “continue in service in such public-school system during good behavior and efficient and competent service,” and exempted her from discharge except for causes specified in G. S. 1949, 72-5406 followed by notice and hearing pursuant to G. S. 1949, 72-5407. Likewise, she was entitled to benefits of the Continuing Contract Law (G. S. 1955 Supp. 72-5410 to 72-5412, inclusive), which provides generally that a teacher shall be continued in the employment of the public-school system for the next succeeding school year unless the services of the teacher are terminated as provided by law.
During April 1955 appellee was advised of reasons to discharge appellant due to her incompetency, inefficiency and neglect of duty. On April 6, 1955, pursuant to G. S. 1949, 72-5405, appellee gave-appellant a warning and specific statement in writing of the defects or reasons for the proposed discharge, and thereafter appellee’s administrator and supervisors conferred and worked with her to assist her in improving her conduct as a teacher.
On August 25, 1955, pursuant to the Continuing Contract Law, appellee reemployed appellant by written contract for the school year 1955-1956, and increased her salary $400 per year in conformity with the employment policies of appellee with respect to all teachers in its public-school system. Appellant accepted the contract of employment and commenced her teaching duties with the opening of the ensuing regular school term.
At a regular meeting of appellee on October 3, 1955, it was advised that grounds for appellant’s discharge still continued and were augmented by additional acts and incidents on her part, and her dismissal was proposed effective November 7, 1955, subject to her request for a hearing before appellee as provided by law. On October 4, 1955, Wade C. Fowler, Superintendent of Schools, on behalf of appellee, prepared, personally signed, served and read to appellant a notice entitled “Notice of Discharge,” the first and second paragraphs of which read:
“You Are Hereby Officially Notified in accordance with the provisions of Article 54 of Chapter 72 of the General Statutes of Kansas, 1949, and amendments thereto, that the Board of Education of Wichita, Kansas, for good, sufficient and valid causes, grounds and reasons does discharge, dismiss and terminate you from your present employment and position as Study Hall Supervisor at Wichita High School East.
“You Are Hereby Notified that your termination and dismissal shall be effective and your present employment, position and pay or salary terminated as of November 7, 1955; and that on and after October 4, 1955 you are suspended from your work and position and shall not report or be present for duty or work after receipt of this notice.”
The third paragraph sets forth five causes for discharge as enumer ated in G. S. 1949, 72-5406, proof of any one of which would have warranted dismissal.
The fourth paragraph sets forth specific acts and conduct of appellant covering each of the causes for discharge set forth in the preceding paragraph.
The fifth, sixth and seventh paragraphs of the notice read:
“You Are Hereby Advised and Informed That you may have the right of a hearing before the Board of Education, at which meeting you may be represented by counsel, present evidence, and call and examine witnesses in your behalf.
“You Are Further Advised and Informed that if you desire such hearing, you must file a written request for same within fifteen (15) days after receipt of this notice.
“You are also advised and informed that you shall receive no compensation for any service rendered on and after November 7,1955.”
Following her suspension appellant employed an attorney who made formal written request on October 6,1955, for a hearing of the causes for discharge in which she advised she desired to present evidence in her behalf. Appellant’s request was granted and the hearing was set for November 14,1955. On that date appellant and her attorney requested the hearing be continued to December 5, 1955, and thereafter further requested it be continued to December 12, 1955. Pending all proceedings to discharge appellant, her regular salary was paid until final termination of her employment on December 12,1955.
On December 12, 1955, appellant appeared in person and with her attorney for her hearing before appellee. The hearing before appellee’s twelve members was lengthy, lasting six hours; nine witnesses testified for appellee and eight witnesses and appellant testified in her behalf. Appellant’s counsel, an able and experienced trial lawyer, examined and cross-examined all witnesses. During the proceeding appellant acknowledged she had a fair hearing and full opportunity to present her side of the controversy; that appellee was in no wise to blame for the situation, and that she felt she was meeting friends in appellee and expressed her deep appreciation to its members.
Upon completion of the hearing appellee found that the incidents contained in the Notice of Discharge did occur and that grounds for dismissal existed. Accordingly, it entered an order terminating appellant’s employment as of December 12,1955.
On December 21, 1955, appellant filed a motion for a rehearing with appellee, which was denied February 7, 1956, following which she instituted this action in the trial court. Upon denial of a writ of mandamus and the overruling of her motion for a new trial, appellant perfected this appeal.
Appellant principally contends that appellee violated the Tenure of Instructors Act when it terminated appellant’s employment December 12, 1955. In making the contention, appellant concedes appellee has power to demote or discharge an instructor pursuant to that statute and that its decision is final (G. S. 1949, 72-5407), and that if an instructor is discharged for causes named in the statute, such action is conclusive and not subject to review by the courts unless appellee, in taking the action, acted arbitrarily, unlawfully, oppressively, or was guilty of bad faith or gross abuse of its discretion (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; School District v. Davies, 69 Kan. 162, 76 Pac. 409; Board of Education v. Shepherd, 90 Kan. 628, 135 Pac. 605; Parrick v. School District, 100 Kan. 569, 164 Pac. 1172; Morris v. School District, 139 Kan. 268, 30 P. 2d 1094). However, appellant makes no contention that appellee acted arbitrarily, or that she did not have a full and fair hearing, or that she was not discharged for one of the statutory causes, or that the evidence did not support the order of dismissal. Her sole contention is that the notice of October 4, 1955, effected her discharge on that date in violation of G. S. 1949, 72-5407, and, consequently, denied her the right to 30 days written notice and to a hearing on causes for her dismissal. She maintains that appellee decided, rather than proposed, to dismiss her at its meeting on October 3, 1955, when she was not present, had no notice to appear or opportunity to be heard, and that decision was placed into effect by the notice of October 4,1955.
The evident purpose of the Tenure of Instructors Act is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind — political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear, but it does not confer special privileges upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public-school system; and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.
Did appellee comply with the provisions of the Tenure of Instructors Act when it discharged appellant? An examination of the provisions of the act answers the query. . G. S. 1949, 72-5405 provides that the proposed discharge of an instructor having permanent tenure on account of incompetency or neglect of duty (both of which were specified in paragraph three of the Notice of Discharge) shall be preceded by a warning and specific statement in writing of defects or reasons for the proposed discharge so that the instructor may be given an opportunity for improvement. That notice was given appellant April 6, 1955, and we do not regard her re-employment as waiving its purpose. On the contrary, her re-employment indicates appellee’s good faith and desire to assist her in becoming a competent and efficient instructor. Moreover, under the facts disclosed by this record, appellee was required to re-employ appellant to comply with the provisions of the Continuing Contract Law and the Tenure of Instructors Act. The statute was complied with.
G. S. 1949, 72-5406 sets forth the causes for discharge. The notice of October 4, 1955, contained five causes enumerated in the statute which formed the basis for appellant’s dismissal. That was sufficient.
G. S. 1949, 72-5407 provides that in case it is proposed to discharge an instructor having permanent tenure, he shall be given 30 days written notice stating the causes for discharge and shall have the right to a hearing before the Board of Education where he may be represented by counsel, present evidence and call and examine witnesses on his behalf. If he desires a hearing, he must file a request within fifteen days after receipt of notice. Nothing contained in the statute shall prevent his suspension from duty pending a decision on the cancellation of his contract.
Was the Notice of Discharge defective? Although it was entitled “Notice of Discharge” rather than “Notice of Proposed Discharge and Suspension,” or some other appropriate title, that fact alone did not render it insufficient when its full purport is gauged by the statute. It was served upon appellant October 4, 1955, and fixed the termination of her position and her salary as of November 7, 1955. That was more than 30 days following the date of its service. Appellee had the right to suspend appellant as an instructor, which it did on October 4, 1955, but the suspension did not discharge her. Her position and her salary were expressly continued until November 7, 1955, when her employment was fixed to terminate. She was advised of her right to apply for a hearing before appellee within fifteen days following service of that notice at which time she could be represented by counsel, present evidence and call and examine witnesses in her behalf. Pursuant to that notice, appellant requested a hearing, which was granted, the time of which was twice extended upon her request. As previously indicated, the hearing was lengthy, and appellant acknowledged she had a fair hearing and full opportunity to present her side of the controversy. We do not think her claim that the Notice of Discharge was defective because it terminated her employment on November 7, 1955, is meritorious. Appellee, not knowing whether she would request a hearing, was justified in fixing a definite date following 30 days service of the notice for her dismissal. We think the notice substantially complied with the statute. Moreover, if full credence is given appellant’s contention that the notice of October 4,1955, was defective for reasons asserted, her request for a hearing before appellee and her participation therein constituted an acquiescence and waiver of any purported insufficiency or defect of that notice (Board of Education v. Jewett, 21 Cal. App. 2d 64, 68 P. 2d 404; Kellison v. School Dist. No. 1, 20 Mont. 153, 50 Pac. 421.
The rule is stated in 47 Am. Jur., Schools, § 140, p. 399, as follows:
“. . . As to notices of dismissal, it has been held that even though such a notice is defective, a teacher who participates in a hearing for dismissal waives any defect in the notice.”
The rule is also stated in 78 C. J. S. Schools and School Districts, ¶ 204, p. 1095:
“Defects in the notice may be waived by the teacher, such as by appearing at, and participating in, the hearing on the charges.”
Appellant claims she was discharged October 4, 1955. It is clear she was not. Both appellant and appellee treated the notice of October 4, 1955, for what it was — a statement of her suspension from her duties on that date and of causes for discharge and termination of her employment November 7, 1955, subject to her right to request a hearing before appellee on the charges specified. That procedure accords with the statute. Moreover, appellant received her full salary until her employment was finally terminated December 12, 1955, which alone negates her discharge on October 4, 1955.
Appellant lastly contends that appellee decided at its meeting on October 3, 1955, to discharge her and that the notice of October 4, 1955, placed that decision into effect. The record does not support the contention. Furthermore, the fact that appellee proposed ap pell ant’s discharge does not disqualify its members to hear and determine the truth or falsity of the charges proposed (78 C. J. S., Schools and School Districts, §204, p. 1095). In Morris v. School District, supra, Mr. Justice Burch said:
“Of course the members of the board had made up their minds what to do, before the meeting. They were not acting in the capacity of jurors who must not form or express an opinion until the cause is finally submitted, and when they got what they believed to be the facts, integrity of mental process led inevitably to conviction. The fact they had concluded the teacher should be dismissed is no evidence the conclusion was corruptly reached or corruptly held. Convinced the teacher should be removed, they gave her a hearing at which their evidence was fully disclosed to her, and asked her what she had to say. She had nothing to say, and they closed the episode in the way they expected it would be closed, and in the way they had prepared to close it — by dismissing her.” (1. c. 279.)
When the Notice of Discharge is construed as a whole, which we are bound to do, and when the subsequent conduct and proceedings of both appellee and appellant are considered in connection with it, we are of the opinion it was in substantial compliance with the provisions of G. S. 1949, 72-5407; that appellant’s employment was lawfully terminated on December 12, 1955, and that the trial court did not err in denying a writ of mandamus compelling appellee to reinstate appellant as an instructor in its public-school system.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a judgment rendered by the district court of Neosho County granting plaintiff appellee separate maintenance and alimony in the sum of $27,000 payable at $100 per month; possession of the parties’ household goods; custody of their two minor children, with visitation rights to the defendant appellant; child support money in the sum of $50 per month during the minority of the minor children or until they become self-supporting; and, fees for plaintiff’s attorney. Dissatisfied with that judgment, the defendant brings the case here for review.
On March 17, 1956, plaintiff filed the instant action in the district court of Neosho County but no praecipe for summons was filed and no attempt was made to procure service upon the defendant until May 2, 1956, when he was personally served with summons in Iola, Allen County. On April 16, 1956, and prior to the issuance of summons in plaintiff’s separate maintenance action, defendant commenced an action in the district court of Allen County for divorce from the plaintiff, for custody of their minor children, and for a division of the property of the parties. Personal service of summons was had upon the plaintiff the same day in Chanute, Neosho County; however, no order was made for temporary alimony, or support or suit money for the wife, or for the custody, control and support of the minor children during the pendency of that action. When the separate maintenance action was tried in the district court of Neosho County July 3, 1956, the divorce action was still pending and undetermined in the district court of Allen County.
On the day the separate maintenance action was tried the defendant filed an answer containing a general denial, an admission of the marriage of the parties and the birth of the children as alleged in the petition, and in the third paragraph thereof he alleged in substance that at the time plaintiff commenced her action in the district court of Neosho County there was pending in the district court of Allen County an action filed by the defendant against the plaintiff for a divorce, for custody of the minor children, and for a settlement of the property rights of the parties; and further, that the district court of Allen County had jurisdiction of the parties and of the subject matter and had prior jurisdiction at the time plaintiff’s action for separate maintenance was filed. At the commencement of the trial and upon the oral motion of the plaintiff, the district court ordered the third paragraph of the defendant’s answer stricken.
The defendant has appealed from the judgment of July 3, 1956, granting plaintiff separate maintenance and alimony in the sum of $27,000; from the order striking the third paragraph from his answer, and from all other orders, decisions and judgments. However, defendant’s sole specification of error is “The amount of alimony allowed by the Court is excessive.” In considering this specification we note first that the defendant failed to file a motion for a new trial, and, consequently, we have difficulty in ascertaining any point subject to appellate review.
Although the defendant appealed from the order of the district court striking the third paragraph from his answer, this asserted erroneous ruling is not specified as error, and, consequently, is not subject to appellate review (Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631; Rice v. Hovey, 180 Kan. 38, 299 P. 2d 45). Error is never presumed' (Quivira, Inc. v. Quivira Co., Inc., 173 Kan. 339, 245 P. 2d 972; Elliott v. P. H. Albright Farm Loan Co., 129 Kan. 280, 282 Pac. 749), and it is incumbent upon the party appealing to specify the error alleged to have been committed (Fakes v. Osborne, 165 Kan. 176, 193 P. 2d 218; Quick, Receiver v. Purcell, supra).
Moreover, it has been decided many times that in the absence of a motion for a new trial, trial errors are not open to appellate review. These include rulings of the district court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant (Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105). In that case it was held:
“In an appeal from a judgment granting to plaintiff a divorce and the custody of a child and a monthly allowance for its support, the record examined, and held: (1) There being no motion for a new trial filed in the district court, no mere trial errors are open to appellate review; (2) the pleadings and findings of tire trial court support the judgment entered in plaintiff’s behalf.”
A few of our many cases which support this rule are: Holton v. Holton, 172 Kan. 681, 243 P. 2d 222; Billups v. American Surety Co., 173 Kan. 646, 251 P. 2d 237; Wingert v. Mouse, 174 Kan. 239, 255 P. 2d 1007; State, ex rel., v. Miller, 176 Kan. 175, 268 P. 2d 964; Brewer v. Hearne Motor Freight Lines, Inc., 179 Kan. 732, 297 P. 2d 1108; and, McIntyre v. Dickinson, 180 Kan. 710, 307 P. 2d 1068.
In Anderson v. Insurance Co., 55 Kan. 81, 39 Pac. 1038, it was held:
“The objection that the judgment is excessive in amount will not be considered on appeal where it was not raised by motion for a new trial.” (Syl. ¶ 1.)
That case was cited with approval in Robinson v. Davis, 162 Kan. 44, 174 P. 2d 111, wherein it was said:
“. . . Also, a contention that the amount of a judgment or verdict is not supported by sufficient competent evidence must affirmatively appear to have been asserted to the trial court in connection with a motion for a new trial before it can be considered in this court. (See Decker v. House, 30 Kan. 614, 1 Pac. 584; McNally v. Keplinger, 37 Kan. 556, 15 Pac. 534; Anderson v. Insurance Co., 55 Kan. 81, 39 Pac. 1038; Weaver v. City of Cherryvale, 102 Kan. 475, 170 Pac. 997; and Kinear v. Guthrie, 113 Kan. 692, 216 Pac. 280.) . . .” (l.c. 46.)
It is obvious by the decisions of this court that in the absence of a motion for a new trial, the scope of appellate review is limited to the question whether the judgment is supported by the pleadings and findings (Windmill Co. v. Buchanan, 46 Kan. 314, 26 Pac. 708; Benson v. Rosebaugh, 128 Kan. 357, 278 Pac. 41; Morgan v. Morgan, supra).
With respect to the pleadings, plaintiff’s petition clearly alleged her residence in Neosho County, her marriage to the defendant, the birth of their two children as issue of that marriage, the accumula Ron of household goods and a 1954 automobile, of defendant’s steady employment and his earning capacity, and of his gross neglect of duty and extreme cruelty. Defendant’s answer has been heretofore summarized, and on the issues thus framed, the district court found it had jurisdiction of the parties and the subject matter of the action; that defendant had been lawfully summoned, and, in addition, he had entered a general appearance in the action; that all material allegations of plaintiff’s petition were true and she was entitled to judgment for separate maintenance and alimony, custody of the minor children and possession of the household goods.
It is clear that the judgment is supported by the pleadings, but defendant contends the finding by the district court of Neosho County-that it had jurisdiction of the parties and of the subject matter is erroneous and that as a matter of law that court could not render a judgment for alimony when a prior action for divorce was pending and undetermined between the parties in Allen County.
Although the defendant attempted to raise the question of jurisdiction of the district court of Neosho County to hear the separate maintenance action in the third paragraph of his answer, which was ordered stricken, that claimed erroneous ruling is not subject to appellate review since, as previously noted, the defendant failed to file a motion for a new trial or to include such ruling in his specifications of error in his appeal. However, this court will inquire into the jurisdiction of the district court to render a judgment or decree even though it is not raised by the parties to the appeal. Where there is entire lack of jurisdiction, the question may be raised at any time — even for the first time on appeal, and whether the parties have raised the question or not, it is the duty of this court to inquire «whenever it appears there is any question as to jurisdiction (National Bank of Topeka v. Mitchell, 154 Kan. 276, 118 P. 2d 519; Porter v. Trapp, 160 Kan. 662, 165 P. 2d 591; Kelly v. Grimshaw, 161 Kan. 253, 167 P. 2d 627, 163 A. L. R. 1290; In re Estate of Dix, 161 Kan. 364, 168 P. 2d 537). Here, the defendant vigorously contends that as a matter of law the district court of Neosho County lacked jurisdiction of the subject matter and that the judgment rendered July 3,1956, was void.
It is clear the district court of Neosho County had jurisdiction of the parties; the defendant was lawfully summoned, and what is of equal significance, he did not appear specially for the purpose of raising the jurisdictional question he now asserts, but instead en tered his general appearance in the separate maintenance action. We think under the facts and circumstances presented by this record, the district court of Neosho County had jurisdiction of the subject matter, i. e., the power to hear the separate maintenance action and to render a judgment for separate maintenance, alimony, child custody and support, and award plaintiff the household goods.
G. S. 1949, 60-1516 expressly provides that a wife may obtain alimony from the husband without a divorce for any of the causes for which a divorce may be granted. We have previously held that an action by the wife against the husband for separate maintenance is a separate and distinct action from one by the wife against the husband or the husband against the wife, for divorce (Wohlfort v. Wohlfort, 116 Kan. 154, 159, 225 Pac. 746; Kraus v. Kraus, 171 Kan. 254, 232 P. 2d 233). See, also, Hardesty v. Hardesty, 115 Kan. 192, 195, 222 Pac. 102. In Kraus v. Kraus, supra, it was said:
"In our opinion it is unnecessary to take up and discuss the question of priority in the filing of tírese two actions, and neither is it necessary to refer to the statutes (G. S. 1949, 60-301 and 60-308) relating to the commencement of actions and the authorities relied upon by appellant husband for the reason that here we are dealing with two separate and distinct actions. G. S. 1949, 60-1516, provides that a wife may obtain alimony from the husband without a divorce, in an action brought for that purpose, for any of the causes for which a divorce may be granted. Here the wife filed such an action in Kingman county and through service of summons that court obtained jurisdiction over the husband. Under the pleadings as filed she could not have obtained a divorce from him in that action. His action against her, filed in Sedgwick county, was to secure a divorce. Neither action had gone to final judgment, and certainly under such stage of the proceedings the pendency of his suit for a divorce in Sedgwick county did not operate as a bar to the enforcement of the order for temporary support and maintenance of the wife and child in the separate maintenance action in Kingman county. Our statutory sanction of such a proceeding is in line with the general rule as stated in 27 Am. Jur., Husband and Wife, § 402, pp. 9 and 10:
“ ‘. . . According to the great weight of authority in this country, however, especially according to the more recent decisions, a court of equity is regarded as 'having inherent jurisdiction to entertain, independent of any suit for divorce or separation . . ., a suit by a wife for alimony, support, maintenance, or separate maintenance . . .
" ‘The mere fact that statutory provision has been made for awarding alimony when divorces are granted does not exclude, by implication, any jurisdiction the courts may have had to enforce the fulfillment of that obligation in an action independent of a proceeding for a divorce; for it cannot be presumed that the legislature, while carefully providing for the continuance of the obligation of maintenance after divorce, intended thereby to cut off any jurisdiction which might be in the courts to enforce that obligation while the bonds of matrimony still existed.’ ” (1. c. 256, 257.)
We have examined the record and find no error. We are of the opinion the district court of Neosho County had jurisdiction of the parties and the subject matter of the action, and since the pleadings and findings of the district court support the judgment entered in plaintiff’s behalf, that judgment should be affirmed. It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover for personal injuries sustained by plaintiff (appellee), who was severely and permanently injured when electricity from defendant’s (appellant’s) high voltage line jumped or arced into the mast portion of a television antenna. Defendant appeals from an order of the trial court overruling its demurrer to the petition.
The petition, omitting the formal parts, alleged that plaintiff was a part-time employee of one Mr. Starling in the installation of television receivers and antennas. The property upon which the accident in question occurred is known as 609 Lake Street in Topeka, and the residence thereon faces east and is bordered on the south by an alley. At a time prior to September 25, 1954, defendant had erected poles and strung high voltage, non-insulated wires and facilities along the north border of this alley in such a manner that the cross arms and the wiring (the power line of four wires had been joined to the cross arms by insulators) extended over, above, across and completely along the south side of the dwelling. On the day of the accident these wires were carrying a current of 33,000 volts, which amount was alleged by plaintiff to be extremely dangerous and necessitated the exercise of the utmost care and caution to avoid the injury or destruction of human life. Plaintiff also alleged the wires had been negligently strung, inasmuch as they were not high enough above the top of the residence to avoid contact with a radio aerial or television antenna and inasmuch as they were not insulated. He further alleged negligence in that no warning signs had been posted nor had any warning been given him or the other parties involved of the high voltage of the wiring and the possible danger in proximity thereto; in that no easement, grant, license or permit had ever been obtained by defendant from W. A. Voight, owner for fifty years of the property, from the tenant, or from their predecessors for the erection and operation of such power fine which encroached over, across and upon the mentioned dwelling, nor had any written or oral contract been entered into between the parties for that purpose.
On September 25, 1954, plaintiff and his employer, Herschel Starling, with the help of Joe Redman, tenant of the house at 609 Lake Street, completely and properly installed a television antenna — the top being forty and one-half feet from the ground— composed of a mast and four ten-foot strips of aluminum alloy telescoped together. The holder thereof was attached to the house approximately eighteen inches above the ground and nine and-one-half feet from the southwest corner of the dwelling. The antenna was held erect by three guy wires — one being attached to the north edge and one to the south edge of the roof and one, running west, to a shed in back of the house. The next day plaintiff and Mr. Starling returned to 609 Lake Street to check the antenna installation, a customary business procedure of plaintiff’s employer. Mr. Starling and Mr. Redman decided that a better reception of the Kansas City stations could be obtained by turning the antenna in a more northeasterly direction and they, with plaintiff, then loosened the bolt in the holder and began turning the antenna. In so doing, the extension arms on the top of the antenna mast came in close proximity with the uninsulated high tension power line above described, causing the 33,000 voltage current to “jump or arc” into the antenna mast, from which it was transmitted down the pipe section of the antenna and into the bodies of plaintiff, Mr. Starling and Mr. Redman. The latter two men were both killed instantly. Plaintiff was knocked down by the electrical shock and suffered severe injuries, the details of which are unnecessary to this opinion. Plaintiff asked for damages for injuries sustained and expenses in relation thereto.
Defendant demurred to plaintiff’s amended petition on the grounds that it failed to state facts sufficient to constitute a cause of action and that it disclosed contributory negligence by the plaintiff as a matter of law.
Defendant, in its effort to overcome the decision of the lower court overruling the demurrer to the petition, contends that it breached no duty owed plaintiff; that under the circumstances plaintiff was bound to see and appreciate the danger of the high voltage line; and that he was guilty of contributory negligence as a matter of law in not doing so. The trouble with defendant’s arguments lies in the fact that they are essentially matters of defense, whereas here we are dealing with allegations of the petition which for purposes of the demurrer are to be taken as true. This is fundamentally a fact case. The facts have not yet been developed. For that reason we think any discussion of the authorities and rules relied upon by the parties would be entirely improper at this time and would as a practical matter tend to adjudicate the rights of the parties in advance of trial. We have no way of knowing what the proof may establish. We, therefore, deem it unnecessary to discuss the many decisions dealing with or to write a thesis on the subject of the rights, duties and liabilities of the power companies engaged in the transmission of electricity, or regarding contributory negligence on plaintiff’s part, if any, without any idea what the proof in this respect might be. Whether plaintiff can prove the allegations of his petition or defendant can establish defenses thereto are matters with which we are not at present concerned. All that is required for purposes of this appeal is to hold, and we have concluded, that under the facts, conditions and circumstances set forth in the petition the trial court did not err in holding that the petition stated a cause of action and that plaintiff was not guilty of contributory negligence as a matter of law. (Roehrman v. D. S. & O. Rural Electric Cooperative Ass’n, 174 Kan. 498, 505, 256 P. 2d 872; McGuire v. Danielson, 178 Kan. 166, 169, 283 P. 2d 254.)
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
Fatzer, J.:
The plaintiff, the City of Garden City, appeals from a ruling of the trial court sustaining a motion to discharge the defendant and dismiss a complaint drawn under a city ordinance. The ordinance reads as follows:
“Section 17-515 Revised Ordinances of the City of Garden City, Kansas 1951.
“Persons Under the Influence of Intoxicating Liquors or Narcotic Drugs. Section 15.
“(a) It shall be unlawful for any person who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle within the city.
“(b) Every person who is convicted of a violation of this section shall be punished by imprisonment for not more than one (1) year or by fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than ninety (90) days nor more than one (1) year, and, in the discretion of the court, a fine of not more than Five Hundred Dollars ($500.00). Provided, that the Police Judge of the city shall report any conviction hereunder to the vehicle department of tire State Highway Commission and shall take up and endorse the license of the operator’s or chauffeur’s license of any such person and forward the same to the said department as provided by law.”
The complaint, omitting its signature, caption and verification, reads:
“Before the Police Judge of the City of Garden City, in Finney County, Kansas.
“State of Kansas, Finney County, ss
“Dale Davis, being duly sworn, on oath says that on the 1st day of January, A. D. 1956 in the City of Garden City, in Finney County and State of Kansas, one Frederick Willis Miller then and there being did then and there wilfully and unlawfully drive and operate a motor vehicle within the city limits of said city while under the influence of intoxicating liquor or narcotic drug (17-515) contrary to the ordinances of said city in such cases made and provided.”
The motion to discharge the defendant and dismiss the complaint filed May 11,1956, reads, in part:
“In support of this motion, defendant respectfully represents to the Court that the Ordinance of the City of Garden City, Kansas, under which judgment was rendered against him in the Police Court of said City, being Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951, and under which Ordinance the prosecution herein was brought, is invalid, illegal, void and of no force or effect for the following reasons:
“1. That the same is a violation of and in conflict with Chapter 14, Article 4, Section 14-439, of the General Statutes of Kansas, 1949.
“2. That the same is in conflict with and a violation of the provisions of Chapter 8, Article 5, Section 8-507, 8-508 and 8-530 of the General Statutes of Kansas, 1949.
“3. That the same is not authorized under the laws of the State of Kansas, that no power to adopt that Ordinance has been granted the said City, and that by reason thereof, the same is illegal and void.”
The order of the trial court of September 11, 1956, sustaining the defendant’s motion to discharge and dismiss the complaint, reads in part as follows:
“1. That Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951, under which judgment rendered against the defendant in the police court of said city is invalid, illegal, void and of no force or effect in that the penalty provisions of said section are a violation of and in conflict with Chapter 14, Article 4, Section 14-439 of the General Statutes of Kansas, 1949, and amendments thereto.
“2. That there is no expressed statutory authority granting said city, plaintiff herein, the power to enact the provisions of said Section 17-515; that by virtue thereof the police court of said city was and is without jurisdiction to hear the action herein against said defendant.”
The plaintiff made exception to the ruling of the trial court, and, pursuant to G. S. 1949, 12-1102, reserved the following legal questions, which are here presented:
“1. Is Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951, invalid, illegal and void because the penalty provisions therein are in conflict with the provisions of G. S. 1949, 14-439, and amendments thereto?
“2. Did the governing body of the City of Garden City, Kansas, 'have the power to pass an ordinance containing the provisions of Section 17-515 of the Revised Ordinances of the City of Garden City, Kansas, 1951?” •
We first discuss the second question reserved by the plaintiff, and note that the provisions of the ordinance are identical with G. S. 1949, 8-530 except the statute applies to “any vehicle within this state,” and that the ordinance directs the police judge to report convictions to the vehicle department of the State Highway Commission and to take up the operator’s or chauffeur’s license of persons convicted and forward it to that department.
As preliminary to considering this question, we next note the long and well-established rule of this jurisdiction to the effect that the power of a city to pass an ordinance must be vested by the, legislature in the governing body in express terms or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purposes of the corporation (City of Leavenworth v. Rankin, 2 Kan. 357; Anderson v. City of Wellington, 40 Kan. 173, 176, 19 Pac. 719; Brown v. City of Topeka, 146 Kan. 974, 74 P. 2d 142; State v. Hannigan, 161 Kan. 492, 170 P. 2d 138); that cities in this state are municipal corporations created primarily for the purpose of local government and have only such power and authority as is specifically given them by the legislature or those that are necessarily implied in the powers specifically given (Beach v. Leahy, Treasurer, 11 Kan. 23; In re Pryor, Petitioner, 55 Kan. 724, 728, 41 Pac. 958; The State v. Downs, 60 Kan. 788, 792, 57 Pac. 962; City of Mankato v. Jewell County Comm’rs, 125 Kan. 674, 676, 266 Pac. 96; State, ex rel., v. Sedgwick County Comm'rs, 150 Kan. 143, 91 P. 2d 2); and that any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied (Anderson v. City of Wellington, supra; State, ex rel., v. City of Coffeyville, 127 Kan. 663, 274 Pac. 258; Brown v. Arkansas City, 135 Kan. 453, 455, 11 P. 2d 607; Ash v. Gibson, 145 6Kan. 825, 829, 67 P. 2d 1101). For additional authorities on this general subject see 7 West’s Kansas Digest, Municipal Corp. §§ 57, 59, and 4 Hatcher’s Kansas Digest (Rev. ed.) Muncipal Corporations, §§ 31, 34.
The plaintiff contends it has the power to enact the ordinance by virtue of the Uniform Act regulating traffic on streets and highways enacted by the legislature in 1937 (Laws 1937, Ch. 283; G. S. 1949, 8-501 to 8-5,134, inclusive, as amended), and specifically points to G. S. 1949, 8-507 as authorizing cities to adopt additional traffic regulations so long as the provisions of the ordinance adopted do not conflict with those of the Uniform Act.
The defendant contends generally that the Uniform Act was expressly intended to be applicable and uniform throughout the state and in all. municipalities therein; that it occupied the entire field relating to traffic on streets and highways and no city has authority to enact ordinances concerning any of the provisions contained therein except where expressly authorized to do so; and, that it makes invalid the ordinance of any city purporting to cover the same subject matter of any of its sections as being necessarily in conflict with the section or sections of the Uniform Act purported to be adopted by the ordinance.
The Uniform Act (G. S. 1949, 8-501, et seq.) is a complete and independent code dealing with the subject of vehicle and pedestrian traffic, and was intended by the legislature to be applicable and uniform throughout the state and in all counties and cities, and local authorities may not enact or enforce any rule or regulation in conflict therewith but may adopt additional trafile regulations not inconsistent with its provisions. G. S. 1949, 8-507, reads:
“The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this act.” (Emphasis ours.)
The defendant asserts that G. S. 1949, 8-508 contains the only power expressly granted to local authorities and no express authority exists therein to enact the ordinance in question. This section reads:
“(a) The provisions of this act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from: 1. Regulating the standing or parking of vehicles. 2. Regulating traffic by means of police officers or traffic-control signals. 3. Regulating or prohibiting processions or assemblages on the highways. 4. Designating particular highways as one-way highways and requiring that all vehicles thereon be moved in one specific direction. 5. Regulating the speed of vehicles in public parks. 6. Designating any highway as a through highway and requiring that all vehicles stop before entering or crossing the same or designating any intersection as a stop intersection and requiring all vehicles to stop at one or more entrances to such intersections. 7. Restricting the use of highways as authorized in sections 111 to 122 [8-5,111 to 8-5,122], inclusive, of this act. (h) No ordinance or regulation enacted under subdivisions (4), (5), (6), or (7) of this section shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.”
G. S. 1949, 8-5,111 to 8-5,122, inclusive, referred to in subsection 7 above quoted, deals with the inspection, enforcement, size, weight, load, width, height and length of vehicles which may use the streets of any city and contains no authority to adopt the ordinance in question.
We observe from the provisions of G. S. 1949, 8-507 that local authorities shall not enact or enforce any rule or regulation in conflict with the provisions of the act, but that local authorities may adopt additional traffic regulations, which are not in conflict with the provisions of the act. As we read this section the terms “rule or regulation” and “additional traffic regulations” were intended by the legislature to mean the manner in which cities generally adopt legislative enactments: i. e., by “ordinance,” and as thus construed, local authorities may adopt additional traffic ordinances which are not in conflict with the provisions of the Uniform Act.
The defendant contends that to construe the statute in this manner would subject persons driving motor vehicles upon the streets of a city while under the influence of intoxicating liquor to prosecution in a police court for violation of the city ordinance as well as in a state court for a violation of G. S. 1949, 8-530. While this may occur, the contention nevertheless is without merit.
This court will take judicial notice of the steady migration of the population of Kansas from the rural areas to the cities, resulting in our being an urban state. This fact is frequently brought to public attention, and it is commonly understood that due to increased industrialization in and near the larger centers of population and of changing farming practices, more people reside and more vehicles are registered in the cities than in the rural areas. Undoubtedly, the tragic and ever-growing list of fatalities and the property damage occurring on our streets and highways caused, in part, by persons driving motor vehicles while under the influence of intoxicating liquor was one of the reasons for the enactment of the Uniform Act. We think it clear the legislature intended by G. S. 1949, 8-507 that every force of government be permitted to mobilize and combat this public menace, and that by authorizing local authorities to adopt additional traffic regulations not inconsistent with that act it thereby empowered all cities of the state to adopt ordinances making unlawful the driving of a motor vehicle while under the influence of narcotic drugs or intoxicating liquor within such cities, as one of such additional regulations. This view finds support in G. S. 1955 Supp. 8-1001 to 1007, inclusive, enacted in 1955 to assist law enforcement officials in determining whether persons who are apprehended for driving motor vehicles while under the influence of intoxicating liquor are, in fact, under the influence of intoxicating liquor as therein defined. G. S. 1955 Supp. 8-1001 reads in part:
“Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood whenever he shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute o-r- a city ordinance and the arresting officer has reasonable grounds to believe that prior to his arrest the person was driving under the influence of intoxicating liquor. . . .” (Emphasis ours.)
G. S. 1955 Supp. 8-1005 reads in part:
“. . . or in any prosecution for a violation of city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor . .
The inclusion in the statutes of the terms “in violation of . . . a city ordinance” and “or in any prosecution for a violation of city ordinance” accords with the view of this court that G. S. 1949, 8-507 authorizes cities to adopt ordinances such as the one in question as “additional traffic regulations” pursuant' to the Uniform Act.
The fact that the state has enacted legislation on a subject does not necessarily deprive a city of the power to deal with the same subject by ordinance. (City of Kansas City v. Grubel, 57 Kan. 436, 46 Pac. 714; Minneola v. Naylor, 84 Kan. 147, 113 Pac. 309; Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548; Garden City v. Legg, 126 Kan. 569, 268 Pac. 827; Clemons v. Wilson, 151 Kan. 250, 98 P. 2d 423.) A municipality may legislate on the same subject so long as the municipal ordinance does not conflict with the state law (In re Van Tuyl, 71 Kan. 659, 81 Pac. 181; Trimble v. City of Topeka, 147 Kan. 111, 75 P. 2d 241; State v. Hannigan, supra), and if there is no conflict, both laws may stand. (Garden City v. Legg, supra; Clemons v. Wilson, supra; City of Fort Scott v. Arbuckle, 165 Kan. 374, 196 P. 2d 217.) Moreover, a conviction under a municipal ordinance covering the same subject matter as a state law constitutes no bar in this state to a conviction for the same act under the state statute (In re Jahn, Petitioner, 55 Kan. 694, 41 Pac. 956; In re Kinsel, 64 Kan. 1, 67 Pac. 634; Garden City v. Legg, supra), nor does such practice violate a citizen s rights guaranteed him by either the federal or state constitution. (City of Fort Scott v. Arbuckle, supra; 15 Am. Jur., Criminal Law, § 398, p. 71; 22 C. J. S., Criminal Law, § 296b, p. 449; Note, 48 A. L. R. 1106.)
In City of Fort Scott v. Arbuckle, supra, it was said:
“It has long been settled that a single act of an individual may be punished as a' violation of a city ordinance, of a state law, and of a federal law. Thus it is conceivable that a defendant found hauling liquor in his car on the streets of Topeka could be charged, tried and punished in police court for violating the city ordinance which prohibits such traffic, charged in a state court by the prosecuting attorney for this county with violation of the statute making that an offense, and if it should be made to appear that he brought the liquor into Kansas, prosecuted by the federal government for interstate transportation. . . .” (1. c. 385, 386.)
Manifestly, the ordinance in question does not conflict with G. S. 1949, 8-530 since, as we have previously noted, the language, with minor exceptions, is identical to that of the statute both with respect to defining the offense and prescribing the penalty. The ordinance merely complements the statute and is nowhere antagonistic or in conflict with it. Furthermore, the restrictions imposed upon local authorities by G. S. 1949, 8-507 is that additional traffic regulations or ordinances shall not conflict with the provisions of the act. This act does not restrict local authorities from adopting an ordinance containing the provisions of one of its sections, and in the absence of such restriction, we know of no reason why a city may not lawfully adopt and enforce an ordinance containing the provisions of G. S. 1949,8-530.
The defendant cites cases from other jurisdictions: California, North Dakota, Arizona, Minnesota and New York, as supporting his position. We have reviewed these authorities but they do not lend support since the statutes of those states in the main expressly declare the general law to be exclusive on the subject. Our statute contains no such provision. Furthermore, we note the following authorities support the views of this court on the question presented: Salt Lake City v. Kusse, 97 Utah 113, 93 P. 2d 671; Shaw v. City of Norfolk, 167 Va. 346, 189 S. E. 335; State v. Poynter, 70 Idaho 438, 220 P. 2d 386; Kistler v. City of Warren, 58 Ohio App. 531, 16 N, E. 2d 948; Village of Struthers v. Sokol, 108 Ohio 263, 140 N. E. 519; State v. McCall, 58 N. M. 534, 273 P. 2d 642; City of Clovis v. Dendy, 35 N. M. 347, 297 Pac. 141; Mares v. Kool, 51 N. M. 36, 177 P. 2d 532; State v. Hauser, 137 Neb. 138, 288 N. W. 518; Gembler v. City of Seward, 136 Neb. 196, 285 N. W. 542; Village of Winnetka v. Sinnett, 272 Ill. App. 143; State v. Hughes, 182 Minn. 144, 233 N. W. 874; and, City of Aberdeen v. Forkel, 72 S. D. 536, 37 N. W. 2d 407. A great majority of the decided cases sustain the validity of this ordinance. See annotations 21 A. L. R. 1212, 64 A. L. R. 1005 and 147 A. L. R. 566.
In view of the foregoing we conclude that the plaintiff had the power to adopt the ordinance in question, and that the trial court erred in sustaining the defendant’s motion to discharge him and to dismiss the complaint.
We next discuss the first question reserved by plaintiff as to whether the ordinance is void because the penalties conflict with the provisions of G. S. 1955 Supp. 14-439. While the penalties prescribed in the ordinance differ from those provided in G. S. 1955 Supp. 14-439, we have concluded they were authorized by G. S. 1949, 8-507 and do not conflict with G. S. 1949, 8-530. Both statutes, G. S. 1955 Supp. 14-439 and G. S. 1949, 8-507, contain sufficient authorization to permit cities of the second class to adopt the ordinance in question. The former statute deals generally with the powers of such cities to maintain the peace, good government and welfare of the city, while the latter deals specifically with regulation of traffic on streets and highways and expressly declares, “The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein. . . .” (G. S. 1949, 8-507.) These statutes should be construed harmoniously so that each has a field of operation, if that can be reasonably done. Obviously, this can be done. Following the general rule that a statute pertaining to a specific thing takes precedence over a general statute which might be construed to relate to it, we hold that G. S. 1949, 8-530 is applicable to the specific subject to which it relates notwithstanding the provisions of G. S. 1955 Supp. 14-439. In Sherman County Comm'rs v. Alden, 158 Kan. 487, 148 P. 2d 509, it was held:
“The terms of a statute dealing with a specific subject are controlling as against divergent provisions of a statute having more general application.” (Syl. f 2.)
In Cutrel v. Best, 169 Kan. 16, 217 P. 2d 270, it was held:
“Where there is a conflict between a statute dealing generally with a subject, and another statute dealing specifically with a certain phase of it, the specific legislation controls.” (Syl. f 1.)
See, also, Wulf v. Fitzpatrick, 124 Kan. 642, 261 Pac. 838; Harkrader v. Whitman, 142 Kan. 186, 46 P. 2d 1; Smith v. Henry, 155 Kan. 283, 287, 124 P. 2d 448; and, Moody v. Edmondson, 176 Kan. 116, 269 P. 2d 462.
In view of the foregoing we hold that the governing body of the city of Garden City was empowered and authorized by G. S. 1949, 8-507 to adopt § 17-515 Revised Ordinances, 1951.
The judgment of the trial court is reversed with directions to overrule the motion of the defendant and to proceed in accordance with the views expressed in this opinion. It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover damages for personal injuries sustained at about 1:15 a. m. on March 11, 1956, in a collision between two motor vehicles at a point approximately one and one-half miles east of the City of Wichita on U. S. Highway 54. At the time of the accident the appellant (plaintiff), Patricia Blasi, was a passenger in an automobile operated by one Erple Byrd, which collided with the rear-end of an automobile operated by appellee (defendant), Marlin C. Miller, a/k/a M. Clare Miller, while both vehicles were proceeding in a westerly direction on such highway. Issues were joined in the district court of McPherson County respecting negligence on the part of all individuals mentioned and the case was tried by a jury which returned a verdict for the defendant. Upon the overruling of post trial motions the Honorable Alfred G. Schroeder, who was then trial judge of such court and is now ineligible to participate in appellate review of his trial court rulings and decisions because he is now a member of this court, approved the verdict and rendered judgment in accord therewith. Thereupon plaintiff appealed from such judgment and all intermediate rulings.
For reasons to be presently stated it would serve no useful purpose and add nothing to the body of our law to make detailed reference to the contentions advanced by the parties in their briefs and on oral argument respecting the merits of this appeal. It suffices to say that after an extended conference regarding its disposition, during which all briefs and oral arguments were thoroughly discussed and carefully considered three of the qualified members of this court are of the opinion the judgment should be affirmed and three are convinced it should be reversed and the cause remanded for a hew trial.
The established rule of this jurisdiction (See, e. g., Ward v. Davis, 177 Kan. 629, 281 P. 2d 1084; State, ex rel., v. Holsman, 175 Kan. 476, 264 P. 2d 919; Hoiderman v. Hood, 67 Kan. 851, 73 Pac. 1132) is that where one of the Justices is legally disqualified to participate in a- decision of the issues raised on an appeal and the remaining six Justices are equally divided in their conclusions as to how such appeal should be disposed of the judgment of the trial court must stand. . Conformance with the rule, to which we adhere, requires an affirmance of the judgment.
It is so ordered.
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The opinion of the court was delivered by
Mason, J.:
On August 1, 1910, O. B. Manross was employed by the Uncle Sam Oil Company for one year at a salary of $2,050, payable $150 on the first days of September and October, and $175 a month thereafter. On October 14 he was discharged. In November, 1910, he brought an action against the company for $175 as his compensation for the month of October.' He recovered a judgment for that amount, which was reversed in December, 1912, because of the omission of an instruction to the effect that the general manager of the company had authority to discharge the plaintiff, if sufficient cause existed, and in that case he could recover only what was due him at the time of his discharge. (Manross v. Oil Co., 88 Kan. 237, 128 Pac. 385.) In June, 1916, the plaintiff amended his petition so as to claim a recovery for $2,212.50, being the full amount of the agreed salary, with interest, less what he had been paid. He was given judgment for that sum, with interest, less what he testified he had been able to earn at other employment during the remainder of the year, amounting to $648. The defendant appeals.
1. The petition after setting out the contract of employment alleged that the plaintiff had at all times been ready to perform' the services required of him thereunder, and had performed them so far as permitted by the defendant. Under various assignments of error the defendant urges that no recovery should have been permitted as compensation for constructive services because the theory on which such a recovery has sometimes been allowed is unsound and is not, and ought not to be, recognized in this jurisdiction; and that no recovery-should have been permitted as damages for the breach of contract because that was not pleaded — the petition not alleging a wrongful discharge.
The common-law doctrine of “constructive service,” by which an employee wrongfully discharged is permitted to recover wages as such for the period subsequent to his discharge, being founded on fiction, has not been widely accepted in this country, the remedy of an action for damages for a breach of the contract being regarded as adequate and more in keeping with the modern tendency to conform the pleadings to the actual facts. (Notes, 5 L. R. A., n. s., 439, and 6 L. R. A., n. s., 50.) The constructive-service theory appears to have received some recognition in this state (James v. Parsons, 70 Kan. 156, 158, 78 Pac. 438), but its soundness need not be passed upon in this case. The defendant in the opening statement on its behalf admitted the validity of the contract of employment, asserted that the plaintiff was discharged for incompetency and insubordination, and “elected to submit the case upon that issue.” The vital controversy between the parties was whether the plaintiff was discharged wrongfully or rightfully. That question was fairly submitted under an instruction (of which the defendant complains) that it was all the jury had to determine. The measure of recovery applied by the court was the amount of the unpaid salary less what the plaintiff testified that he had been able to earn at other work after his discharge, during the remainder of the year covered by his contract. This did no injustice to the defendant, whether the amount awarded be regarded as damages for the breach of the contract, or as compensation for constructive service. Whether or not the petition was defective in not alleging that the plaintiff had been wrongfully discharged, no prejudice could possibly have resulted to the( defendant from the omission, and it would be manifestly unjust to reverse the judgment by reason thereof.
The jury were told that they might return a verdict for the plaintiff if they should find that he had carried out his part of the contract so far as permitted, and was ready, willing and able to finish it according to its terms. This instruction is objected to as adopting the common-law doctrine referred to. Considered in connection with that previously stated, it amounted to no more than saying that the plaintiff’s claim was valid if the fact that he did not perform the services for which he was employed was due, not to any fault on his part, but to the action of his employer — in other words, that his discharge, which the parties agreed had taken place, was wrongful. The verdict necessarily implied a finding that the defendant wrongfully discharged the plaintiff, and that being true, the objections made to it lack substance; they concern matters of procedure having no relation to the fair determination of the essential issue of fact upon which the rights of the parties depended.
2. An instruction was given to the effect that the amount of recovery was not in dispute — that if the plaintiff was found to have been wrongfully discharged he was entitled to the salary promised him, less what he had been paid and what he testified he had been able to earn. The defendant complains of this as invading the province of the jury. The plaintiff’s testimony as to what he had earned and that it was all he was able to earn during the remainder of the year after his discharge, was uncontradicted. The cross-examination developed nothing to discredit it, and the defendant introduced no evidence on the subject. There was no occasion to submit the matter to the jury, for if that had been done, and a larger allowance had been made for the possible earnings of the plaintiff, the verdict could have been set a,side as without support. (Hollicke v. Railway Co., 99 Kan. 261, 161 Pac. 594.)
3. The amount of recovery indicated by the court and adopted by the jury included no allowance for interest, the verdict explicitly so stating. The court in rendering judgment corrected the omission, and complaint is made on that account. There was no real controversy of fact as to the amount of recovery, and the addition of the interest by the court is not a ground of reversal. (Smith v. Railway Co., 90 Kan. 757, 136 Pac. 253.)
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from an order under section 35 or 42 of the code of civil procedure. .
The petition alleged in substance that one W. A. Moyer contracted with one Domineck to sell him a certain piece of land on which there was to be a cash payment of $3,000; that the deed and money were deposited in the defendant bank as an escrow, the exact terms of which were alleged to be unknown, but were in substance that the deed was to be delivered to Domineck and the $3,000 to Moyer, or placed to his credit when Moyer presented an abstract showing merchantable title; that after the money was placed in the bank Moyer became indebted to the plaintiff for $3,000 and agreed to transfer to him the amount of the money so deposited upon completion of the terms of the escrow and undertook to make a written assignment to him believing that the money could be transferred to the plaintiff, and wrote an order to the bank to turn over to the plaintiff the $3,000 “placed in escrow subject to deed and abstract to be delivered by myself, when title is complete”; that Moyer and plaintiff together presented this order to the defendant, whose cashier accepted it and placed it among the other papers; that thereafter the defendant conspired with Moyer to prevent the plaintiff from receiving the money and with the intent to aid Moyer to obtain it and not pay it to the plaintiff; that the bank arranged with Moyer not to comply with the terms of the escrow literally and induced him not to have the money placed to his credit, but arranged with Moyer to turn the money over to him and placed it to some one’s credit for him in some way unknown to the plaintiff, which was in effect complying with the escrow but in such a manner as to give the appearance that the terms of the escrow had not been completed; that thereupon the bank returned the order to the plaintiff; and that the terms of the escrow were complied with or waived so that Moyer received the benefit of the $3,000 and the bank refused to turn it over to the plaintiff. The plaintiff prayed for a decree that the instrument and the conduct of the parties constituted an equitable assignment of the amount of money named in the order, and that the plaintiff have judgment against the bank for that amount. The bank filed an affidavit under section 42 of the code of civil procedure (Gen. Stat. 1915, § 6932) stating that Moyer and wife, without collusion with the defendant, had and make a claim to the subject of the action. The bank asked that the Moyers be substituted and that the defendant be discharged from all liability to the plaintiff. The court made the following order:
“That the said W. A. Moyer and Katie Moyer, his wife, be and they are hereby ordered on or before thirty days from this date to appear in this action and maintain and set up or relinquish all their claims to the fund of $3,000.00, the subject of this action; and it is further ordered that said fund be held by the said defendant, The Citizens National Bank, until the further order of the court.”
1. The plaintiff contends that for the statutory procedure to be effective the bank must be entirely free of any claim made against it by either of the other parties; that the statute applies only in an action on contract or to recover personal property; that this is an action on a tort; and that the bank has no right to be relieved by its affidavit from the effects of the alleged conspiracy. It is clear that the plaintiff bases his action on the written order given by Moyer. But for this the bank would have been under no obligation to the plaintiff. The allegation of conspiracy to avoid complying with the order is only another way of saying that the order is the foundation of this action; hence, it must be held that the action is one on contract rather than the one sounding in tort, and that the action is one in which an order of substitution can properly be made.
2. The defendant claims that the order was not appealable and asks that the appeal be dismissed. It must be noted that the order did not state that W. A. Moyer and Katie Moyer should be substituted for the bank, nor that the bank should be discharged. In these particulars the order of the court did not comply with section 42 of the code of civil procedure, but did comply with section 35. Unless the bank was finally and completely discharged, there was no final order so far as the bank was concerned; but it may be argued that when the Moyers were made parties, the statute compelled the substitution and discharged the bank. If there was a substitution, the question is concluded by C. K. & W. Rld. Co. v. Butts, 55 Kan. 660, 41 Pac. 948, where this court said that “an order of substitution is not a final one.” (Syl. ¶ 1.)
There is room for argument that the court did not make the Moyers parties under section 42 of the code of civil procedure, but did make them parties under section 35, which reads:
“Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” (Gen. Stat. 1915, § 6925.)
If they were made parties under the latter section, the bank was not discharged and no final order was made or judgment rendered in favor of or against any party to the action. In neither of the two situations thus presented has there been any judgment or final order from which an appeal can be taken.
The appeal is dismissed.
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The opinion of the court was delivered by
Burch, J.:
In a petition for rehearing the plaintiffs bring to the attention of the court the case of Golden Star Lodge No. 1 v. Watterson, 158 Mich. 696. It is said the question presented in that case is identical with the one presented by the plaintiffs, and that the conclusion reached by the Michigan court is opposed to that announced by this court.
The action in the cited case was one of mandamus to compel restoration of a forfeited lodge charter. In the opinion it was said:
“There is no provision in the charter of this society for an appeal by a subordinate lodge. The only appeal provided is by an aggrieved member; and, even in that case, the charter does not make the determination of the appellate tribunal final. Consequently, Fillmore v Knights of Maceabees, 103 Mich. 437 (61 N. W. 785), and like cases, have no application to the facts of this case. It is, however, insisted that it was the duty of the members of the relator to apply for admission to some other subordinate lodge; but such applicant cannot become a member of some other lodge as a matter of right. Four black balls will defeat her election; and, be sides, she is required to pay a fee of fifty cents as a condition to admission. The law will not leave property right of members to such an uncertain remedy. The fifty-two members composing the relator are one body of individuals, just as much as are the stockholders of a corporation. Their organized body is authorized to represent them in controversies which involve the rights of all. In these controversies they have chosen certain officers to speak for them and to protect their rights. One suit can settle the rights of all; but respondents’ contention would leave each member to fight her own battle. I find no authority sustaining this contention.” (Golden Star Lodge No. 1 v. Walterson, 158 Mich. 696, 701.)
The decision has no bearing whatever on the present controversy. The action was brought by the dissolved lodge, and not by a member of the lodge. While members might resort to tribunals of the order, the lodge itself was denied that remedy, and consequently it was permitted to go directly to the civil courts. The question in this case — the privilege of a member to invoke aid of a court without taking' advantage of a by-law allowing him to appeal — was not adjudicated, and could not be.
In the petition for rehearing it is said this court, in the former opinion, held that Capital Council No. 1 had a right to appeal. The plaintiffs have not given the opinion careful attention, or the assertion would not have been made. The court did not have before it the subject of the remedies available to Capital Council No. 1. The only allusion to the subject was the statement that “there is no specific provision for an appeal by a subordinate council from a decision to dissolve it” (Tucker v. Kirkpatrick, 106 Kan. 881, 882), and the opinion was confined to the subject of remedies of a member.
The petition for rehearing makes much of the Michigan court’s treatment of the suggestion made in the case before it, that members of the dissolved lodge should have applied for admission to some other lodge. This court treated the same subject in the same way, and reached a conclusion identical with that of the Michigan court.
The petition for rehearing makés much of the Michigan court’s argument that the lodge, in the case before it, was an organized body, having authority to represent its members in controversies affecting the rights of all, that one suit could settle the rights of all, and that the respondent’s contention would leave each member to fight her own battles. This argu ment was made in vindication of the privilege of the lodge, which was not permitted to appeal, to resort to the courts. If Capital Council No. 1 were here in place of the plaintiffs, this court would be pleased to consider the argument. Capital Council No. 1, however, is not here. It has left the plaintiffs to fight their own battle, and the question is, What course were the plaintiffs required to pursue? They claim an injustice has been done them in dissolving their council, taking over its money and property, depriving them of their insurance, and depriving them of membership in the order. They were given authority to apply to the national council for relief, and consequently they were in a situation analogous to that of the plaintiff in the case of Finnerty v. S. Council C. K. of A., 115 Iowa, 398, in which the court said:
“There was a provision of defendant’s constitution to the effect that any member who considered that an injustice had been done him by any action of the order, might within one month appeal to the supreme council, if it was in session, or to the president-during a recess. Here was a provision for obtaining redress by a member within the tribunals of the order. The general rule, we take it, is that where the laws of an association like defendant provide a remedy in the tribunals of the order for a grievance complained of, which has not been pursued and exhausted, such fact is a complete defense to an action in the courts.” (p. 400.)
It may be remarked here that no multiplicity of proceedings is involved in applying the general rule, because the successful appeal of one member of Capital Council No. 1 from an order dissolving it would reinstate the council.
In the petition for rehearing it is said the court did not give sufficient consideration to the fact that property rights are involved. The case would have been out of court long ago if it had not been recognized that property rights are involved. Other matters presented by the petition for rehearing are sufficiently dealt with in the former opinion, and the petition is denied.
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The opinion of the court was delivered by
Mason, J.:
On May 13, 1919, an election was held upon the question whether a rural high school should be established in McPherson county, in conformity with the statute. (Gen. Stat. 1915, § 9348, as amended by Laws 1917, ch. 284, § 2.) The vote was canvassed and the proposition was declared carried. On June 24 the organizátion of the district was effected by the election of a school board, which on the same day contracted for supplies to the amount of $150 and for the renting for ten months of a building for school purposes. On June 28 a petition purporting to be signed by a majority of the electors of the district was filed with the county clerk asking that an election be called to vote upon the question of the disorganization of the school. On July 7 the county commissioners made an order calling such an election. On July 11 this action was brought by the state on the relation of the county attorney against the commissioners and other officers to enjoin the holding of the election, and the various ministerial acts preliminary thereto, on the ground that no such proceeding was authorized by the statute. A demurrer to the petition was overruled and an answer was filed, the court sustaining a demurrer to all of it excepting a general denial. The case was submitted upon the pleadings and a judgment was rendered in favor of the plaintiff, enjoining the performance of any acts looking to the holding of the election. The defendants appeal.
1. The portion of the answer to which a demurrer was sustained contained an allegation that five ballots (enough to affect the result) cast at the election at which the proposal to establish the school was submitted, which should have been counted in the negative, were rejected altogether because marked with a cross near, instead of within, the square provided for the use of the voters. The appellant’s argument appears to concede that the rules peculiar to the Australian ballot system should control — a matter concerning which there may be some doubt. (Abrahams v. School District, 97 Kan. 325, 155 Pac. 16.) Neither that question nor the correctness of the result reached on the canvass of the returns of the election need be now determined. The present action is one brought by the state to enjoin the holding of the election to vote upon the disorganization of the school, on the ground that such a proceeding is unknown to the law. If the plaintiff is otherwise entitled to the relief sought, its right thereto cannot be impaired by any defect in the steps by which the establishment of the school was brought about. If it be true that the electors of the district decided against the establishment of the school, that fact obviously could not justify the holding of an election not warranted by the statute to vote upon a proposition for its disorganization.
2. It is urged that an action will not lie to enjoin the holding of an election, or the preliminary acts necessary thereto. Such is without doubt the general rule. (Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; 9 R. C. L. 1001; see, however, 22 Cyc. 885, 886; 2 Joyce on Injunctions, §§ 1386, 1386a; The State, ex rel. Attorney-general, v. Cunningham, 81 Wis. 440, and The State, ex rel. Lamb, v. Cunningham, Secretary of State, 83 Wis. 90.) The present case, however, differs in two respects from those in which that rule has ordinarily been applied. Here the action is brought in behalf of the public and not of individuals, and the objection is not based upon the existence of mere irregularities in the procedure followed, but upon the contention that the election is one for which there is no legal authority whatever. The government may invoke the aid of a court of equity without showing a pecuniary interest.
“The obligations which it is under to promote the interest of all and to prevent the wrongdoing of one, resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.” (In re Debs, Petitioner, 158 U. S. 564, 584.)
“The state may maintain injunction against a public officer to restrain him from a violation of his official duty, although other remedies may he open, and he may have given a sufficient bond. It has an interest in seeing that the will of the legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury.” (State v. Lawrence, 80 Kan. 707, 103 Pac. 839.)
If in fact the law does not contemplate the holding under any circumstances of such an election as that here involved, we think it within the province of a court of equity, at the instance of the representative of the public, to interfere to prevent the doing of an entirely fruitless act, involving some expense and perhaps serving as a practical impediment to the functioning of a school.
3. Prior to 1917 the law in relation to rural high schools made no provision for a vote upon a proposition for disorganization. At the legislative session of that year an act was passed amending it in many respects and adding to the section relating to the establishment of such a school, this provision:
“If any rural high school shall heretofore have voted to organize under the provision of this section, and shall not have accumulated any property, nor incurred any expense or obligation, nor issued any bonds or other evidence of indebtedness, such rural high school may be disorganized upon a petition, notice, and election presented, given and held for the disorganization of such rural high school upon the same terms and provisions as are hereinbefore prescribed in this section for the establishing and locating thereof, except that such petition shall pray, such notice shall declare and such election shall be held for the disorganization of said rural high school; provided, that this shall not affect any district in which a suit has been brought concerning the organization, or issuance of bonds.” (Laws 1917, ch. 284, § 2.).
The language quoted makes the provision for disorganization applicable only to such rural high schools as had already been established. It could be held to apply to the school here involved only by adopting a construction that would give to the word “heretofore” the effect of “heretofore or hereafter.” It is true that-great liberality of interpretation of words indicating the period to which a statute relates is allowed for the purpose of carrying out the manifest will of the legislature. (The State, ex rel., v. City of Lawrence, 101 Kan. 225, 165 Pac. 826.) But we discover nothing in the present instance to suggest that the framers of the law in question desired to affect any schools excepting such as at the time of its passage had already been created. This court has recently refused to give to “heretofore” the force of “theretofore” even when that construction might have prevented a statute from being held unconstitutional. (Patrick v. Haskell County, 105 Kan. 153, 160, 181 Pac. 611.) The rule that a retrospective operation of a statute is disfavored is based-largely upon the policy of avoiding in terference with antecedent rights, and in any event couid be of no aid here, because whether the statute has a prospective operation or not, it does explicitly affect districts already created. It seems reasonable to suppose that the legislature intended to supply a means of disposing of schools which at the time of the enactment were known to have become dormant, rather than to adopt a practice which in effect would allow an immediate reconsideration whenever the people of a district might in the future vote to establish a rural high school.
We conclude that the legislature intended the provision regarding disorganization to apply only to districts which were in existence when it was enacted. This conclusion justifies the injunction against the election, and makes it unnecessary to consider any of the other questions that have been argued.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendant railway company for failing to place an underground crossing, fences and proper cattle guards along and upon its newly constructed railway on the plaintiff’s farm.
In 1916, the defendant’s railway was built. By contract it acquired a right of way over plaintiff’s farm, cutting his pasture into two parts, 60 acres west of the railway track and 80 acres east of it. In the contract the railway agreed to put in an underground crossing to connect the two parts of the pasture. There was some delay in building the fences, especially on the east side of the right of way; no underground crossing was constructed, and the cattle guards first put in where the railway entered and left the pasture were temporary and defective. The plaintiff was thus deprived of the use of 80 acres of his pasture, and he had to hire pasture elsewhere for part of his cattle, and he had to feed his cattle for a longer season than usual.
The jury returned a verdict for the plaintiff in the sum of $240, and answered certain questions:
“Q. 2. . . . Was the use of the pasture impaired for grazing purposes by reason of any acts or omissions of the defendant? A. 2. Yes.
“Q.' 3. . . . What acts or omissions of the defendant caused the impairment of the land for grazing purposes and in what way was its use impaired? A. 3. Insufficient cattle guards.
“Q. 4. ... Was any part of the damages based on the failure of the defendant to install and maintain proper cattle guards? A. ‘4. Yes.
“Q. 5. If so, what part of said damages have you found was the result of such failure of the defendant? A. 5. All.
“Q. 10. Has the plaintiff promptly exercised diligence in preventing or minimizing his damages? A. 10. Yes.
“Q. 11. If you answer the above question in the affirmative, when and what acts did he do to prevent or minimize his damages? A. 11. By keeping his stock in small pasture and feeding them after the railroad was constructed.”
The railway company assigns trial errors in overruling its demurrer to the petition, its demurrer to the evidence, and in refusing two instructions which it requested.
Noting these in order, the action was not based alone upon breach of the contract to construct an underground crossing, but also upon breach of the defendant’s statutory duty. The petition recited all the pertinent facts, and alleged—
“Plaintiff further says that the defendant has failed and neglected to construct said underground crossing or cattle guards and has failed to fence its said right of way as provided in said contract and as required by law, though often requested to do so.”
Whether an obligation to build fences might be implied in the contract from the specific agreement of the railway company that “an underground crossing should be put in” — an obviously useless arrangement unless the right of way was fenced on both sides, is not now material. The trial court instructed the jury that the defendant was under no legal obligation to fence its right of way, and that alleged dereliction of the defendant went out of the case. And while the defendant clearly did obligate itself to construct an underground crossing, that phase of the lawsuit went out of the case by the jury’s findings. There remained, in the petition, however, the failure of the defendant to construct the cattle guards — a duty imposed by statute on the railway company. Sections 8459 and 8460 of the General Statutes of 1915, provide:
“Sec. 8459. When any railroad runs through any improved or fenced land, said railroad company shall make proper cattle guards on -such railroad when they enter and when they leave such improved or fenced land.
“Sec. 8460. Any railroad company neglecting or refusing to comply with the provisions of sections one and two of this act shall be liable for all damages sustained by any one by reason of such neglect and refusal; and in order for the injured party to recover all damages he has sustained, it shall only be necessary for him to prove such neglect or refusal.”
The petition.was good against a demurrer.
Defendant’s next contention is that its demurrer to the evidence should have been sustained. The evidence tended to show that the cattle guards were defective wooden contrivances, and that the plaintiff’s stock passed over them. The plaintiff’s son testified:
“We could not use the east pasture in June, because there was nothing to keep the cattle in where the road went through north and south. They would walk right out. They had not cattle guards when the road was first constructed. Wooden cattle guards were put in in the fall of 1916, but the cattle walked over them. The wooden guards were just one by fours and setting up endways about three inches apart and about four or five feet long, lying lengthwise across the track the same way the rails run. . . . Whenever the cattle went across it would break the boards and sometimes the wind filled them up with dirt. ... We tried a number of times to use the east pasture, but the cattle would get out. . . . I took away the stock from section 29, in May of last year, because we could not pasture them on the east side of the track. We had to feed these cattle in the fall of 1916. We never even had a little pasture on the west side and had to keep stock in the lot and feed them when they first came through with the road. . . . If we turned them into the east pasture they never stayed there.”
The plaintiff testified:
“We were prevented from using it close to six months. • There was close to eighty acres of pasture east of the railroad. My water and feed lot is in that part of the pasture west of the railroad. . . . When that was built we could use the pasture west-of the railroad. They provided barbed wire gates where they filled in between- the pastures, but put no cattle guards at that crossing.....It was in September when they commenced running the trains that they put up wooden cattle guards. . . . I was prevented from using the east pasture' for six months or over. ... I mean the eighty acre tract on the east side of the railroad. We could not let them into this pasture, because they always went on across.”
Elsewhere the son testified:
“I took thirty-two head of cattle over to -a river bottom pasture and paid one dollar per head per month because we could not pasture them at home.”
The defendant cites several cases touching the measure of damages for its failure to make proper cattle guards at the railway entrance to and exit from the pasture. But surely the measure of damages is not-restricted to such of the particular items as are approved in those particular cases. The statute says the injured party may recover “all damages,” and “it shall only be necessary for him to prove such neglect or refusal.” The damages were sufficiently established; and so, too, were the defendant's neglect and refusal. Loss of pasturage was held to be a proper item of damages in Railway Co. v. Billings, 77 Kan. 119, 120, 93 Pac. 590. While it may be correct that the plaintiff might have employed herders to keep the stdek from passing over the defective cattle guards it is certain that the wages of such herders would have been a greater item than the total loss of the pasturage, and one, too, which properly might have been assessed against the defendant. (Freeman v. Railway Co., 101 Kan. 516, 521, 167 Pac. 1062.) It is, of course, the duty of the injured party to minimize his damages, and that duty, we think, was fully discharged by the plaintiff when he abandoned the use of the pasture east of the railway and confined and fed his live stock in the smaller pasture, and hired other pasturage for part of his cattle.
Complaint is made of an instruction relating to plaintiff’s duty to observe diligence to prevent his cattle passing over the defective cattle guards, but this subject was adequately and more pertinently covered in those given by the court.
Another instruction refused would have declared the law to be that if the plaintiff suffered damage by reason of the defendant’s failure to maintain proper and sufficient cattle guards the jury should not consider any consequent damage for a period of more than sixty days commencing from the completion of the railway. Presumably this was because of defendant’s viewpoint that the statute limited the damage to some such period unless notice and demand for proper cattle guards were made upon the railway company. The statute, however, contains no such provision; and, moreover, we think, the evidence showed that such notice and demand were repeatedly made.
The court cannot see its way to disturb this judgment, and it is therefore affirmed.
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The opinion of the court was delivered by
Mason, J.:
Several questions have arisen concerning the precise form in which the official ballot for use at the coming election should be printed. In order that these may be authoritatively decided in time for the decision to be made effective, the attorney-general has brought this action against the secretary of state challenging the correctness of the form prepared by him for certification to the county clerks, and asking an order directing certain changes to be made therein.
1. The principal question involved is whether the statute requires a square for the use of the voter to be placed opposite the name of each of the candidates for presidential electors nominated by the several political parties, or whether,a single square opposite the names of the candidates of each party for president and vice- president is all that is necessary. The doubt upon the subject arises from the fact that while the latter practice is indicated by the language of the body of the act, the “sample ballot” which is made a part of it does not conform thereto. The purpose of the sample ballot is largely illustrative and explanatory, and while it must control as to matters not otherwise provided for, and may throw light upon the meaning of an ambiguous provision of the text, it must yield to a positive declaration with which it is in conflict.
As already suggested, the sample ballot included in the statute calls for a square opposite the name of each candidate for elector. It is introduced, however, by the phrase “All as is shown in the accompanying sample ballot,” showing that its purpose is merely to illustrate, explain and perhaps amplify the detailed directions concerning the form of the ballot by which it is preceded — certainly not to nullify any of them. These directions conclude thus:
“The names of candidates for presidential electors shall be arranged in groups as presented in the several certificates of nomination or nomination papers. The groups shall be arranged in the alphabetical order of the surnames of the candidates for president. The surnames of the candidates of each political party for the offices of president and vice president with the political designation thereof at the right of the surnames, shall be placed in one line above the group of candidates of such party for electors. A sufficient square in which each voter may designate by a cross X his choice for electors shall be left at the right of each political designationand no other space or margin shall be left in any such group of candidates. All as is shown in the accompanying sample ballot.” (Laws 1913, ch. 189, § 1, Gen. Stat. 1915, § 4208.)
We regard it as clear that the words “and no other space or margin shall be left in any such group of candidates” mean that no provision shall be made and no opportunity be given for placing a cross opposite the name of any individual elector included in the group. The manifest purpose of the provision is that one who wishes to vote for all the electors nominated by the party whose candidates for president and vice president he favors may give effective expression to that wish by merely placing a cross in the square at the right of the names of the party’s nominees for president and vice president — just as under a former practice a vote for an entire party ticket was registered by placing a cross in a circle under the emblem at the head of the column.
The sentences above quoted are taken without change from the Massachusetts statute upon which the amendment of the election law of this state enacted in 1913 was largely founded. (Supp. Rev. Laws Mass., 1902-1908, ch. 11, § 232.) In that state it has received the practical interpretation which we adopt, as is shown by an official specimen ballot presented at the hearing, in which only one square is used in connection with a group of candidates for presidential electors — and that is placed opposite the names of the party candidates for president and vice president. Not only is no square used after the name of an individual elector, but no blank space is left there in which a voter might be tempted to place a cross; the portion of the line not occupied with the name and residence of the candidate is filled to the edge of the column with a scroll, so that the statute is literally complied with and no space or margin is left.
No sample ballot is contained in the Massachusetts statute. The one inserted in the Kansas act conflicts in another respect with the language of the act already quoted. Instead of the groups of nominees for presidential electors being arranged in the alphabetical order of the surnames of the candidates for president, the name of Wilson appears first, that of Taft second and that of Debs third. Of course no one would doubt that the explicit direction should control. Another discrepancy-in a less important matter is the use of the full names of the candidates instead of merely the surnames.
The conclusion we have reached seems to us to follow necessarily from the language used. It also appears to accord fully with the spirit of the act. As is well understood, a presidential elector was originally expected to exercise his own judgment in casting his vote as a member of the electoral college. He is now regarded as a mere representative of his party, selected to voice its choice in the matter. The voting for a list of presidential electors is with the vast majority a mere form by which they seek to give expression to their preference for the offices of president and vice president, being utterly indifferent as to the persons through whom legal effect is to be given to their action. What the legislature evidently had in mind was to simplify the process by which voters of that type may indicate their choice. But the form as prepared by the secretary of state does not deny to the exceptional voter, in the rare instance in which he is not satisfied with any of the groups for whom he may vote by marking a cross in a single square, the privilege of voting for whatever persons for electors he may see fit. In accordance with another provision of the section of which those already quoted are a part, ten blank spaces are left on the ballot, at the end of the lists of candidates for electors, in which the voter may write whatever names he pleases, whether or not they are included in any of the preceding groups — even if he should be so eccentric as to prefer to vote,for instance, for five republicans and five democrats. The prohibition found in the same, section that “no name that is printed on the ballot can be written elsewhere on the ballot” does not apply to that situation. Its intention is not to restrict the choice of the voter in the slightest degree. It merely requires him, where provision has been made for his voting for a particular person by placing a cross in the square opposite the name of that person as printed on the ballot, to pursue that method and not unnecessarily write in the name in a blank space. While the name of each individual nominated by a political party for a presidential elector is literally printed on the ballot, it is not so printed within the spirit and meaning of the prohibition in question. It is not printed on the ballot in such a manner as to enable the voter to make use of the printed name in voting for that particular candidate individually. It appears only as one of a group the persons designated in which can be voted for, by means of the printed names, only in a body. They must be voted for, in that place, collectively or not at all. The fact that their names are not printed on the ballots as individuals does not constitute a departure from the statutory requirement that the names of persons duly nominated shall be placed thereon, for their names are tendered to the voters in accordance with the intention of the organizations— the political parties — nominating them — in groups which collectively represent the presidential and vice presidential candidates whom they are pledged to support by a custom and understanding so strong as to have almost the force of positive law. They are nominated by their party, not to run for the office of elector in competition with each other, but to be submitted in a block, to be accepted or rejected as a whole; and the statute recognizes this fact and undertakes to spare the normal voter the necessity of marking ten crosses where one will answer the purpose.
In the form of ballot prepared by the secretary of state these paragraphs are printed at the head of the electoral tickets:
“If you wish to vote for the group of electors nominated by one of the political parties place a cross (X) in the square opposite the names of the candidates of that party for president and vice president.
“If you do not wish to vote for the group of electors nominated by any of the political parties you may write in the blank spaces, found below, the names of all the electors for whom you wish to vote, placing a cross. (X ) in the square at the right of each.”
The statute, in the section already quoted from, authorizes such directions as will aid the voter, to be printed upon the ballot, and these are appropriate as tending to prevent a failure on the part of the voter to understand the method to be pursued in voting for electors.
2. A question incidentally involved is whether the names of candidates for electors are required to be rotated. The provision that “the names of candidates for presidential electors shall be arranged in groups as presented in the several certificates of nomination or nomination papers” might indicate that the order used in such certificates should be followed. The provision that “the groups shall be arranged in alphabetical order of the surnames of the candidates for president” appears to refer to the order in which the several groups shall be printed and to have no relation to the order of the names in each group. In the same section it is provided with respect to candidates generally that their names shall be rotated on the ballot — shall be so arranged that each shall have an equal opportunity. We regard this provision as having no application whatever to the candidates of a party for presidential electors. Inasmuch as they are voted for collectively (if their names as printed on the ballot are made use of by the voter) there could be no possible purpose in the rotation.
3. The other question requiring to be settled is whether the names of the candidates for congress should appear on the ballot following those of candidates for the United States senate (which immediately follow the electoral ticket), as indicated in the form prepared by the secretary of state, or following those of candidates for state offices, as suggested by the attorney-general.
The text of the section already discussed (Gen. Stat. 1915, § 4208) makes no reference to the order in which the candidates for different offices shall be arranged unless -it is to be found in the opening sentence, providing for the printing on the ballot of the names of all candidates for “national, state, congressional, legislative, judicial and county officers.” A congressman is in a sense a national officer, but inasmuch as a separate class is made of “congressional” candidates it is clear that they were not intended in this particular classification to be included under the other and more general term. If the order in which the classes of candidates are named in this preliminary statement is to be taken as indicating their sequence on the ballot, then the names of the congressional candidates should follow those for state offices. This is the order shown by the sample ballot, and inasmuch as it is not in conflict with anything in the body of the act we think it must be followed.
The original sample ballot printed as a part .of the Australian ballot law of this state showed the names of no candidates other than for state offices, and only a part of them. (Laws 1897, ch. 129, § 14.) The first amendment of the section cited contained parts of the electoral, state and county tickets, without specific reference to the candidates either for United States senator or for congressman, but the names of the nominees for presidential electors shown were followed by the words: “And continuing in like manner as to all candidates on national ticket.” (Laws 1901, ch. 177, § 6.) In that condition of the statute it would doubtless have been proper to regard congressional candidates as covered by the word “national” and to place their names on the ballot preceding those of candidates for state offices. In 1905 the words just quoted were retained, United States senators were not mentioned, but the candidates for congress were placed after the state officers. (Laws 1905, ch. 222, § 1.) In the sample ballot of the present law the words referring to the national ticket are omitted and the order indicated by the Í905 act is retained. The making of these various changes seems fairly to show that the place upon the ballot to be occupied by the names of congressional candidates is a matter that has received the attention of the legislature and to strengthen the argument in favor of following the prescribed form in this regard.
In a statute passed in 1915 to facilitate the count by providing for double election boards and separate ballots it was provided that “the national and state tickets shall be printed upon one ballot, and the district county and township tickets shall be printed upon another ballot.” (Laws 1915, ch. 205, § 1.) Under this provision wé think it clear that the office of congressman should be classified as “national” rather than as “district,” and the names of candidates therefor should be placed upon the general rather than the local ballot. But this cannot affect the interpretation of the act here involved which was passed in 1913, because it makes no reference to it, is not in any way in conflict with it, and can shed no light upon what was in the mind of the legislature.
It follows from what has been said that the form of ballot prepared by the secretary of state should stand without change, except that the names of the candidates for congress should follow those of candidates for state offices instead of those of candidates for United States senator. The application of the plaintiff is therefore held to be well founded so far as relates to that matter, but not otherwise. It will of course be unnecessary that any writ shall issue.
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered a judgment for $10,000 for the death of her husband, alleged to have been caused by the negligence of the defendant in kicking certain cars against those connected with the caboose where he was working. The defendant appeals, and in its brief complains of rulings refusing instructions, denying motions to sét aside certain findings and for judgment on the special findings, and refusing a new trial.
The deceased was in the employ of the defendant as a brakeman, and on the morning in question was engaged at Emporia in helping make up a west-bound freight train. The way car and six freight cars coupled together were standing on track No. 4, the way car being attached at the east end of the string, and the deceased was at the east end of the way car. Another part of the train to be made up was propelled against these cars, and in some way the deceased was caught and run over and suffered fatal injuries.
The petition alleged that the death of the deceased was caused by the negligence of the defendant in this: That while he was at the rear or east end of the way car, the defendant, its agents, servants and employees, negligently ran the switch engine with freight cars attached thereto and being shoved at a dangerous rate of speed, and negligently kicked the way car and ran the engine and cars with great force and violence, and without warning, and in a negligent manner against the west portion of the train then made up, thereby negligently causing such portion of the train and way car to be suddenly moved backward and over the body of McMullen.
The train was being made up on a curved track, so that the signals had to be relayed to the engineer, and it is claimed that the trouble arose from the fact that one of the train crew who received a signal to come ahead signalled to the engineer to make a kick, meaning to move his engine rapidly and then suddenly stop so that cars uncoupled from those still attached to the engine would be kicked or propelled violently in the direction in which they had been started.
The defendant filed a general denial, and pleaded contributory negligence and assumption of risk. The jury with their verdict answered several questions and, having been required to retire and answer certain ones more definitely, came in with seventeen findings, one to the effect that the verdict was based on negligence of the switching crew in transmitting signal to the engineer; another that the evidence did not show what the deceased did to protect himself from the time he placed himself in the position where he was struck. As to whether there was anything to prevent McMullen from seeing, hearing and ascertaining that the switching crew were engaged in shifting and moving cars in and about the making up of the train, the answer was:
“McMullen had a right to assume that switching crew knew where he was at that time. No evidence to show that McMullen did not know switching crew were making up train.
15. If the come-ahead signal given by switchman Moomaw had been correctly transmitted by the switchman Philips to the engineer, and the engineer had obeyed the signal, would the brakeman Mr. McMullen have been injured? Ans, No.
“17. Is it not a fact that switchman Moomaw gave the come-ahead signal and that the switchman Philips transmitted the kick signal to the engineer? Ans. Yes.”
The defendant contends that it was guilty of no negligence towards McMullen. It is argued that his presence at the way car was unknown to any member of the switching crew engaged in making up the train; that the way car had been coupled to the switch engine and kicked a number of times before the accident; that McMullen just before the injury was in the way car and knew what the switching crew were doing; and that he was an experienced brakeman and fully understood the manner in which trains were made up. It seems that the duty he had to perform was to connect the air hose on the cars as they were coupled up by the switching crew, and it is beyond dispute that kicking was a common practice of which he, with his two years’ experience, was quite well aware. It was equally well known to the switch crew that it was the duty of some one of the train crew1 to be on hand to attend to this coupling, although it does not appear that they had any knowledge that McMullen was actually the one at work at this time. It was alleged in the answer.that it was the duty of McMullen to see that the air hose on the train was in proper condition before the train started, and to attend to the coupling up of the cars therein.
One of the switchmen testified :
“They couple up the air between each of the cars and open up the' angle cock. You have to go in between the cars when that is done. That is done by the brakeman when the train is being made up. That is the general rule. As the cars are put in they step in and couple up the air. That ■ is the custom and practice'. Our engine crew knew that fact.”
It was testified that after the six cars and caboose were kicked down on track 4, a car was kicked to track 5, as it was' desired to run the car on the head end of the train, and it was left on track No. 5 temporarily—
“Then we kicked two more towards 4 track. We gave them a little kick to kick them clear of No. 5. . . . Those two cars did not clear track 5. The head car was pointed into 4 and the hind car of the two stopped so that it fouled 5, so that this car couldn’t go into 5 without cornering it. In other words the west end of those two cars didn’t quite clear track 5. The drag was standing a little west of 5 track about half way between. I would imagine there were about 50 or 70 cars between the end of the drag that we had hold of and the west end of the car that stopped. When we kicked them down in there I stepped on the other side to see if the other cars went to clear No. 5 and I saw that they didn’t and I lined the switch back for the lead, and I stepped over on the south side and gave them the sign, to come ahead and shove them into the clear. . . . When I gave the come-ahead signal Philips gave the come-ahead signal. The engineer came ahead and shoved down against those two cars. When we coupled into them I gave the sign to come ahead, to come on in. I saw Philips, he gave them a sign to give them a kick. . . . When the high-ball or kick signal was given by Philips the engineer opened her up and gave it a shot. As quick as I seen the high-ball and seen that the engineer was going to kick them, I commenced to stop him, flag him down. I gave a stop sign. . . . After the two cars stopped, and we had come up to them, we intended to shove them in far enough to clear No. 5. . . . The effect of the two cars coming up against the six cars that were standing on track 4 was this, the distance was so short between the string of cars attached to the way car, and the rest that we had hold of after we had coupled in to those, that it hit those cars a pretty hard rap, and it had a tendency to give them a violent jar backwards. I should judge that the caboose moved about four car lengths by reason of that impact. A car length is generally figured about 40 feet. . . . The difference in the movement of those cars by reason of the high-ball or kick signal being given by Philips instead of the slow and easy come-ahead signal, caused them to hit the' drag of cars and give them a lurch backwards. ... If the engineer had only responded to the come-ahead signal that Taylor and I were giving at that time we would not have hit the west end of those standing cars at that time.”
The condition of the deceased’s body when found showed that he had been dragged for some distance and cinders were ground into the wounds. The engineer of the switching crew testified:
“A. If it was kicked hard enough to move the way car four car lengths, it was an awful hard lick they got. I don’t know that it was moved that far.
“Q. Assuming that it did move that far, you would say it got an awful hard lick. A. Yes, sir; if it moved it that far it must have got an awful lick.”
This is not a case of a trespasser or track walker, or even of a switchman working where he could be seen by the engineer and those in charge of the train movement. It was the duty of the switching crew to make up the trains, except attending to the air hose, and that was the deceased’s duty. A rule of the company provided that brakemen must be at their trains and ready for duty thirty minutes before leaving time, and earlier if required—
“Brakemen of freight trains will be expected to couple air-hose in making up trains at terminal points, and have train in readiness to test air when engine reaches train. - They will begin invariably at the rear end of train and see that stop-cock in train-pipe at rear of last air car is closed, and all other stop-cocks in train-pipe at end of cars are' open; that the hose are all coupled; that the stop-cock in branch-pipe of each car is open; the handle of pressure-retaining valve on each ear turned down, and all hand brakes released unless they are needed to hold the cars while making up train.”
It was testified that these cars were equipped with automatic air brakes—
“There is a hose between each car and when they are coupled up and the angle cock is open, and they are coupled on to the engine, there is an air pump and the engine pumps air into the reservoir and into the train line, so that when they want to stop and want to set the brakes, the engineer makes a reduction and that squeezes the train line and the reservoir and that has a tendency to push the brake cylinder ahead and set the brake. ... In the coupling up of the air hose and air line, the first thing for a man to do in connection with that duty on that, morning would be to shut the angle cock. . . . He would have something to do with reference to the tail hose. ... It has always been customary for the rear brakeman to couple up the air hose.”
The conductor testified that he said nothing to McMullen about the work to be done that morning—
“He knew what was to be done. All there was left for him to do was to couple up the hose on the train. He would commence at the rear end of the way car then turn the angle- cock. ... . He was supposed to commence his duties thirty minutes before the time come to leave. . . . .McMullen was supposed to hang up the tail hose on the hook provided for it.”
After the injury conductor Tenney examined the rear end of the way car and found the angle cock closed. He did not believe the tail hose was hung up. He thought it was hanging down. He had gotton four cars ahead of the way car in checking the train when the injury occurred. The witness said that, assuming McMullen was hanging up the tail hose or adjusting the angle cock, he would say that he was in the performance of his duty at that time.
Philips, one of the switching crew, testified that when they gave the kick signal the distance between the ends of the cars they had hold of and the train on the track was about ten or twelve feet. Another bTakeman of the train crew testified that he went on duty at 6:30. McMullen was in the way car when he arrived. After the witness left the way car he proceeded to check the train, the same as the conductor did, and while they were checking up the train all that McMullen had to do would be to couple up the air hose. McMullen’s first duty to perform in connection with the coupling up of the air line would be to go to the rear end of the way car and couple up the tail hose and turn the angle cock on the rear end of the way car. At the time they arrived at the way car the angle cock would be open and the tail hose down. He examined the rear end of the way car after McMullen was injured. The angle cock was closed. The tail hose was still down. If McMullen was at the rear of the way car closing the angle cock and hanging up the tail hose at the time he was injured, he would then be in the performance of his duty. There would not be any other occasion for his being back there at all, except to close the angle cock and hang the tail hose up.
Counsel for the defendant in their brief say:
“There was no eyewitness to the accident nor was there any testimony , as to how it occurred. It may be assumed, however, that very shortly after the conductor and brakeman left the way car, he' left the car and closed the angle cock and at that time the cars were kicked in on track 4, and by the impact, while he was between the rails on track 4, and at the rear end of the way car, was knocked down and run over. This assumption is based entirely on the situation appearing after the accident. . . . The duty of the conductor and brakeman of the train crew was to examine the seals and check the cars in the train, and that of McMullen was to close the angle cock, hang up the tail hose, and couple up the air hose on the train. This was usually done after the' train was made up and just before or after the road engine was attached to the train. Although, from what he told Dr. Eekdall, it was not the proper time to do so, he thought it had to be done and he would perform that duty while the train was being made up.”
From all this testimony and the rules of the company referred to, and the condition of affairs assumed by counsel for defendant, it seems unreasonable to hold that McMullen was not engaged in the performance of his duty when injured, or that he was not located and engaged as the switch crew knew he or some other brakeman ought to be.
While it may not have been the duty of the switch crew to keep a lookout under ordinary circumstances for a member of the train crew attending to the air couplings, the violent collision caused by the wrong signal and its effects were such as to make it a question for the jury whether such operation was negligent or not. (Saar v. Railway Co., 97 Kan. 441, 155 Pac. 954.)
But it is urged that the negligence on which the jury based the verdict was other than that alleged in the petition. We hold, however, the charge that the switch engine and cars were shoved at a dangerous rate of speed and run with great force and violence without warning against the other cars of the train, causing the way car suddenly and violently to move backwards over the body of McMullen, fairly includes the cause of such alleged violence, which was the transmission of the wrong signal. (Linker v. Railroad Co., 82 Kan. 580, 109 Pac. 678.)
It is also urged that the deceased assumed the risk, thereby exonerating the defendant. In Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747, we held that in an action under the Federal employer’s liability act it was error to instruct that the assumption of risk could only be established by showing that its danger was so glaring that a person of ordinary prudence would not have attempted it. In the opinion it was said:
“The employee is not regarded as assuming unknown or -unappreciated risks arising from his employer’s neglect, unless they are so obvious that an ordinarily prudent person would observe and appreciate them.” (p. 476.)
The Federal supreme court, in Seaboard Air Line v. Horton, 233 U. S. 492, held that Congress in enacting this legislation based the action upon negligence only, and excluded responsibility of the carrier to its employees for defects not attributable to negligence. Touching risks not naturally incident to the occupation, it was said:
“These the employé is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them.” (p. 504.)
The same court, in Reese v. Phila. & Reading Ry., 239 U. S. 463, held that a railroad is bound to exercise under the circumstances the care towards its employees “which the exigency reasonably demands in furnishing proper roadbed, tracks, and other structures” (syl. ¶ 1), and that failure to exercise this care constituted negligence. In Ches. & Ohio Ry. v. De Atley, 241 U. S. 310, the plaintiff was the head brakeman on a fast interstate freight train and was directed by the engineer to go to a telephone at a certain station to ascertain the whereabouts of another train so as to determine whether it was safe to proceed ahead of it. He was unable to understand the operator and so reported to the engineer, then got into the cab and rode until it stopped for coal and water. He was then directed by the engineer to go forward and ascertain the whereabouts of the other train. He at once left the cab and saw the other train approaching. When it reached the platform he attempted to board the engine. He could not accurately judge the speed of it, but it appeared to be going slowly enough for him to board it. But in attempting to do so he fell beneath the wheels and his arm was cut off. He had been employed about six weeks and had made two round trips to get familiar with his duties. He had frequently been called on to leave the train and go forward for signal orders. On this occasion the train was running about 12 miles an hour. The case went to the jury under instructions making the defendant’s liability dependent upon whether the engineer, with knowledge of the plaintiff’s presence and of his attempt to board, operated the train at such a speed as to make the attempt unusually hazardous. There was a verdict for the plaintiff. The court said:
“It is insisted that the true test is, not whether the employee did, in fact, know the speed of the train and appreciate the danger, but whether he ought to have known and comprehended; whether, in effect, he ought to have anticipated and taken precautions to discover the danger. This is inconsistent with the rule repeatedly laid down and uniformly adhered to by this court. According to our decisions the settled rule is, not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper dare with respect to his safety until notified- to the contrary, unless the want of care and the danger arising from it are so obvious that an ordina'rily careful person, under the circumstances, would observe and appreciate them.” (p. 315.)
It was further stated that the court was unable to concur in the view that there was no question for the jury—
“Whether the risk was an extraordinary risk depended upon whether the speed of the train was greater than plaintiff reasonably might have anticipated; and this rested upon the same considerations that were determinative of .the question of the engineer’s negligence.” (p. 317.)
In Ches. & Ohio Ry. v. Proffit, 241 U. S. 462, the plaintiff was head brakeman on a fast interstate freight train comprising about forty cars which had just come into the terminal yards and were about to be taken forward. He got upon the road engine and this was attached to the train,. plaintiff making the coupling. Just after this he met the yardmaster, who directed him to cut out three cars at the head end of the train and switch them off on a sidetrack and come back and couple up. The plaintiff went with the engine and crew to take out the three cars and returned to the main track with the engine and one car, coupled the latter to the forward end of the train and was in the act of coupling up the air hose, an operation which required him to step between the rails. While he was in this position a collision took place, caused by the acts of the yard crew, who, unknown to the plaintiff, under orders of the yardmaster were engaged in switching cars at the rear end of the train and drove a cut of twenty-nine cars into the standing cars with undue violence. The impact was such that the plaintiff was knocked down, run over and injured. There was the usual conflict in the testimony about what happened and what the custom of the railroad men was. The trial court instructed that if the jury found the method of making up trains employed by the defendant on this occasion was such as a reasonably prudent man would have adopted in the conduct of his business, then the plaintiff assumed the risks reasonably and usually incident thereto. It refused to give a requested instruction that if the method employed was the usual and ordinary method then the plaintiff assumed all the risks incident thereto. The supreme court said:
“To subject an employee, without warning, to unusual dangers not normally incident to the employment, is itself an act of negligence. And, as has been laid down in repeated decisions of this court, while an employee assumes the risks and dangers ordinarily incident to the employment in which he voluntarily engages, so far as these are not attributable to the negligence of the employer or of those for whose conduct the employer is responsible, the employee has a right to assume that the employer has exercised proper care with respect to providing a reasonably safe place of work (and this includes care in establishing a reasonably safe system or method of work) and is not to be treated as assuming a risk that is attributable to the employer’s negligence until he becomes aware of it, or it is So' plainly observable that he must be presumed to have known it. The employee is not obliged to exercise care to discover dangers not ordinarily incident to the employment, but which result from the' employer’s negligence.” (p. 468.)
In Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18, decided by the same court March 1, 1920, it was held—
“In the absence of notice to the contrary, a switchman on a cut of cars to be cut off from the engine had a right) to act on the belief that the usual method would be followed and the cars cut off at the proper time, so that he might safely proceed to perform his duty of setting the brake to check the cars.
“A switchman, whose duty it was to set the brake on a cut of cars after it had been cut off from the engine, and who was injured by the sudden checking of the cars, due to the engine foreman’s failure to make the disconnection when the speed of the engine was reduced, did not assume the risk, as the injury did not result from an obvious condition of danger, but from the negligent operation of the particular cut of cars.” (Syl. ¶¶4, 5.)
The trial court instructed that when an employee knows, or in the exercise of reasonable and ordinary care should know, the risk to which he is exposed, he will as a rule be held to have assumed such risk. The supreme court said this charge was not applicable, and quoted from the De Alley decision that it is not the duty of the employee to exercise care to discover extraordinary dangers that may arise from the negligence of' the employer or those for whose conduct he is responsible, and that the employee may assume that the employer has exercised proper care for his safety until notified to the contrary,' unless the want of care and danger arising from it are so obvious that an ordinarily careful person under the circumstances would observe and appreciate them. The United States circuit court of appeals, second circuit, in Erie R. Co. v. Linnekogal, 248 Fed. 389, decided January 16, 1917, held that one acting as brakeman, while assuming the risk of falling from the car on which he was riding, did not assume the risk of being thrown therefrom by the negligent act of the company; ‘Tor such risks are not risks incidental to the employment assumed under the act.” (Syl. ¶ 1.)
While, as already observed, it was a frequent thing to make up trains by responding to the kick signal, and the jury were asked whether on this occasion the switching crew were engaged in making up trains by kicking, shoving and shifting cars in about the same manner as defendant’s employees had frequently done before, and the answer was: “No, on account of transmitting signals.” In reply to another question, No. 7, whether it was customary and necessary to kick and' bump cars against each other in order to make up trains, they said: “It was customary, but done in negligent manner at time of deceased’s injury.”
The trial court is criticised for refusing to instruct that if the members of the switch crew had no notice and were ignorant that the deceased was in a position of danger when the cars were moved against him, they should find for the defendant, and cite Ivey v. Railroad Co., 99 Kan. 613, 162 Pac. 288. But in that case the jury found that no member of the switching crew other than the plaintiff had reasonable cause to think he was in a position of danger when the car in which he was working was moved, while here the switching crew not only ought to have known, but did know, that in the ordinary operation of the train the deceased or some one else would be engaged in coupling the air hose, hence the refusal to give the instruction was not error.
Fault is found with the refusal to require more definite answers to questions Nos. 4, 5 and 13. No. 4 asked if any of the switching crew knew that McMullen was in a position of danger, and the answer was, they knew he was on duty. Under the evidence that they knew he or some other employee ought to be on duty, this answer was not so evasive as to render the ruling materially prejudicial. To question No. 5, as to what McMullen did to protect himself from the time he placed himself where he was struck, the answer was: “Evidence don’t show.” This was about the only correct answer that could have been given, for there was no evidence on this point. Question No. 13 inquired whether in making up trains the switching crew often kicked and bumped cars as hard and often lighter than they were kicked on this occasion, and the answer was: “Yes, when signals call for such movements;” We see nothing wrong with this answer, which was evidently intended to mean that hard kicks were frequently given when signals therefor were made, but it was not intended by this to find that it was customary to give wrong signals therefor.
Findings Nos. 6, 7, and 9 were sought to be set aside as against the evidence and not supported thereby. No. 6 asked whether or not the switch crew were making up the train “by kicking, shoving, and shifting cars in about the same manner as defendant’s employees had frequently done before in defendant’s yards?” and the jury said: “No, on account of transmitting signals.” We regard this as a direct and fair answer borne out by the evidence. No. 7 has already been given. . We can find in the record no ground for setting aside this finding. No. 9 was an inquiry as to what there was to prevent McMullen from learning that the crew was engaged in shifting and moving cars in making up the train had he taken pains to look and listen:
“Ans. McMullen had a right to assume that switching crew knew where he was at that time. No evidence to show that McMullen did not know switching crew were making up train.”
This was not a very direct answer, but we cannot perceive that failure to set it aside worked any material prejudice.
Following the applicable rules which have been laid down by the national courts and which are our guide in cases under the Federal act, we find no material error in the record, and the judgment is affirmed.
Burch, J., concurs in the affirmance of the judgment.
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The opinion of the court was delivered by
Burch, J.:
These cases grew out of a sale of shares of corporate stock,'and are to be determined by application of principles of the law of sales, including election of remedy.
Adams purchased shares of the capital stock of the Mills Dry Goods Company. He had an agreement with the company that it would take back the stock should he sp desire. Adams became dissatisfied with the stock, and sold it to W. W. Mills, who at the time was president of the dry goods company. The memorandum of sale reads as follows:
“January 23, 1915.
“MEMORANDUM RECEIPT AND AGREEMENT.
“Keceived of Mr. W. W. Mills his personal check for $314.20 and eight promissory notes for $500 each, dated February 1, 1915, due on the first day of March, April, May, June, July, August, September and October, 1915, each bearing six per cent interest from date, all payable at the Central Savings Bank of Oakland, Cal., being purchase price of 40 and ~Ao shares of the capital stock of the Mills Dry Goods Company, incorporated under the laws of the state of Kansas, represented by certificates Nos. 574, 575, 580, 581, and 605, which said'Stock and certificates I hereby agree to transfer to said W. W. Mills on the full payment of said purchase price of $4,314.20. “[Signed] Isaac Adams.”
The first four notes were paid at maturity. Default was made in payment of the note due July 1, and in payment of the notes subsequently maturing. In January, 1916, after due notice to Mills, Adams resold the stock at private sale. The proceeds of the resale were applied to payment of the notes maturing July 1 and August 1,1915, and satisfied them. After-wards Mills died, and the unpaid notes which had matured on September 1 and October 1, 1915, were presented to the probate court, and allowed as valid claims against his estate. The administrator appealed to the district court. The claim against the Mills estate was filed in the probate court on November 20, 1918. On December 6, 1918, the administrator sued Adams to recover the cash payment acknowledged in the memorandum of sale, and to recover the sums advanced to satisfy the four notes which Mills paid. The theory of the petition was that by reselling the stock Adams rendered himself unable to perform the contract, and consequently should return the portion of the price which he had received. The appeal from the probate court and the suit against Adams were heard together in the district court, and the administrator was defeated in both proceedings.
The sale was obviously a sale on credit. The memorandum regards the portion of the price evidenced by the notes as unpaid. The certificates of stock were to be delivered on pay ment of the full purchase price, and if the cash and notes paid the price in full, the certificates were deliverable at once, and there was no occasion for the memorandum.
While the subject is not important, the parties have relieved the court from determining whether or not title to the stock passed with the execution of the memorandum of sale. In the administrator’s petition it is alleged that the title did pass, and Adams assents.
The memorandum of sale created no contract lien of any kind to secure payment of the, notes, and there is no evidence of any collateral contract, oral or written, creating any form of lien to secure payment of the notes. We start, therefore, with a very simple and very common transaction. There was a sale of goods on credit, installments of the price were represented by notes, title passed to the buyer, possession remained with the seller, and delivery was to be made on full payment of the price.
The buyer defaulted. His delinquency was persistent, so far as the evidence discloses was unexplained, and the seller was at liberty to choose some remedy from those which the law afforded him. He chose the remedy of self-help, resold the goods, and applied the proceeds of the resale to satisfaction of the oldest notes.
There is debate in the books concerning the capacity in which a seller like Adams acts when holding the goods, and when reselling them for the account of the buyer. Much of the debate is logomachy, resulting from the craving to name, and by naming to bring within some established general category, something not quite fitting into such category. The word “lien” is broad enough and descriptive enough to permit its employment in this connection; and it is enough to designate it “seller’s lien.” Likewise when the seller resells the goods, if is enough to say that he acts as a seller having a seller’s lien.
It is quite elementary that just before resale of the stock Adams stood at a point from which three paths diverged. He could eliminate the contract by rescinding the sale, treat the goods as his own, and do as he liked with them. He could affirm the contract, treat the buyer’s obligation as subsisting, tender the goods to him or keep them for him, and enforce payment of the price. He could treat the contract as broken, resell the goods to recompense himself, as far as possible, for whatever loss he had sustained, and sue for the remaining damages. He could take one path and only one, and having made a choice, he could not afterwards return to the starting place and take another.
Adams testified that he resold the stock as collateral security for the debt. The testimony is '.not important, because it amounts to no more than his characterization of the nature of a past transaction. It adds nothing to the facts which have been stated, and the court must deduce legal consequences from the facts rather than from his opinion.
The administrator would infer intention to rescind from the, fact of resale, and there are some authorities to the effect that resale works rescission. The better view is that intention to rescind is not necessarily indicated by resale, because resale is perfectly consistent with intention to insist on damages for breach of contract, and the law does not execute an intention to rescind when none has been manifested. If in this instance the seller, before resale, had voted the stock at a corporate meeting, or had otherwise exhibited a distinct purpose to resume full dominion over the stock, rescission would be inferred; but without something more than resale, the natural conclusion is that the seller merely intended to fix his damages.
Resale did establish a criterion for admeasurement of the seller’s damages. There is no complaint about time, place, method, or result of the sale, and presumably the amount of the damages was the difference between the sum received and the contract price. Election to resell, however, constituted an election of remedy, which precluded the seller from after-wards suing for the price or the unpaid portion of the price. He could do that only on the theory that he held the stock subject to the buyer’s order, and resale made it impossible for him to comply with the buyer’s order and deliver the stock on payment or collection of the price. (Note, 42 L. R. A., n. s., 669, 672.)
When the seller elected to take damages instead of price, he elected to renounce recovery on the notes. They were obligations to pay price, and not damages. The probate court could not adjudicate damages, and its allowance of the abandoned notes as a claim against the Mills estate was a judicial error, which the district court repeated.
The administrator’s action against Adams treats presentation of the notes to the probate court as a first election between inconsistent courses of conduct, and acquiesces in that election. The court does not regard invoking aid of the probate court as an intentional recalling of the election made by resale of 'the stock. It so happened that after application of the proceeds of resale, the unpaid notes exactly or substantially equaled the remainder of the damages resulting from breach of the contract, and Adams simply mistook his remedy. He had no cause of action on the notes, and no choice between remedies, after the irrevocable act of resale. But one remedy was then available, an action for damages, and his attempt to complete his relief by unauthorized means did not constitute an election, within the proper meaning of that term, which applies to the first pronounced act of election. (Note, Ann. Cas. 1913 D, 1199.)
The judgment in the case originating in the probate court is reversed, and the cause is remanded with direction to render judgment against the claimant. The judgment in the case originating in the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal is brought to review trial errors and a judgment in favor of the plaintiff, based upon a beneficiary certificate issued by the defendant to the husband of plaintiff.
The certificate was issued on January 14, 1916, and the insured died on February 4, 1918. In the application for insurance the insured made a number of representations as to his bodily health and as to whether he had consulted or been attended by physicians within a period of five years preceding his application. These answers, it was contended, were false and such as avoided the beneficiary certificate. It is contended that the findings and verdict of the jury are unsupported by the evidence and that the case was tried upon an erroneous theory of the law. Defendant asserts that the case was tried and submitted to the jury upon the theory that chapter 226 of the Laws of 1907, General Statutes, 1915, §§ 5290, 5291, providing that misrepresentations of an applicant for life insurance shall not defeat the insurance policy unless the matters misrepresented contributed to the contingency or event on which the policy was to become due, applies to fraternal benefit societies. The record does not contain all of the instructions, but the contention of defendant that the case was submitted on that theory is not denied by plaintiff, and as other parts of the record indicate that it was so submitted, the question will be considered.
The act of 1907, in title and body, refers generally to insurance on the lives of persons who are citizens of this state, and to life policies and premiums. In its enactment the legislature did not in terms limit its application to any particular kind of life insurance, nor treat it as an amendment of any of the insurance laws. Being general in its terms it has been held to be applicable to a policy issued by an accident insurance company which provided indemnity for loss of life by accidental means. (Becker v. Surety Co., 105 Kan. 99, 181 Pac. 549.) It does not follow" from this ruling that the provision covers and applies to fraternal benefit societies. The legislative purpose and policy as to these hqve been declared in other legislation. Because of differences in design and nature, the legislature has placed these organizations in a class separate from insurance companies, and provided for each a distinct code of laws for their regulation and control. While benefit societies have insurance features, they are not designed to give indemnity or insurance for profit, as are insurance companies, but the theory on which they are organized is to provide mutual benefits and benevolences to members and their families with no profit in view, and the benefits and relief extended are confined to those associated together in their lodges and societies. Most of the statutory provisions regulating insurance companies are inconsistent with those governing benefit societies, and to make the distinction clear and prevent the application of the governing rules of one organization to the operations of the other, it was expressly provided in the fraternal- benefit act:
“. . . Such association shall "be governed by this act and shall be exempt from the provisions of insurance laws of this state, and no law hereafter passed shall apply to them unless they be expressly designated therein.” (Laws 1898, Special Session, ch. 23, § 1.)
This provision- has been retained in the subsequent amendments of the act and is still in force. (Laws 1899, ch. 147, § 1 [Gen. Stat. 1915, § 5401]; Laws 1917, ch. 208, § 1; Laws 1919, ch. 216, § 1.) It was given consideration in Boice v. Shepard, 78 Kan. 308, 96 Pac. 485, where it was held that the acts relating to insurance companies had no application to fraternal benefit societies, and it was added that:
“The legislature, having separated beneficiary societies from insurance companies and made special provisions for providing and paying benefits to members, simply declared that hereafter this distinction should be maintained, and that acts relating to insurance should not be understood as applicable to beneficiary societies unless they were expressly mentioned in the act. The act in question, instead of making express reference to beneficiary societies, uses language, as we have seen, appropriate only to insurance companies, and its provisions are not in harmony with the theory of beneficiary societies.” (p. 312.)
In providing for the organization and regulation of fraternal benefit societies, it was the manifest purpose of the legislature that insurance statutes then in force ■ or thereafter enacted should not be applicable to benefit societies unless they were expressly included in such statutes. There is no reference to benefit societies in chapter 226 of the Laws of 1907, and nothing in the nature of the societies or the acts relating to them indicates a purpose to include them in the provision in question; and following the legislative interpretation, it must be held that this provision is not applicable to benefit societies, since it is not expressly made so by its own terms.
There remains the question whether the findings and verdict of the jury are contrary to the evidence and the law. In his application the insured represented and warranted that he was of sound bodily health and had no diseases that would tend to shorten his life, and he warranted that the answers he had made upon his application for a beneficiary certificate were full, true, and complete. The truthfulness of the answers to material questions, being a part of the warranty, was essential to the validity of the contract. Among the representations and warranties made by him was one to the effect that he had never had certain named diseases nor any kidney disease or dropsy; another, that he had never consultéd or been attended by a physician during the past five years for any injury or disease, except on one occasion in 1918 when he had been attended by Doctor Lowther for chills and fever. There was testimony by Doctor Clifton that he had treated the insured in 1915 when he found his kidneys diseased, his urine heavily loaded with albumen, his condition dropsical, and that he had then informed the insured that he had Bright’s disease. Furthermore, he testified that afterwards the insured applied to him for an examination preparatory to obtaining insurance with the defendant, but that he (Doctor Clifton) declined to make the. examination, saying that owing to the physical condition of the insured he could not certify that he was a fit subject for insurance. The testimony of the witness is that in reply to this statement the insured remarked, “Well, if you won’t examine me, I can get one that will.” Another witness, Doctor Bobo, testified that the insured consulted him in 1915 as to his illness, and that the diagnosis then made 'by him was that the insured had cirrhosis of the liver and chronic nephritis, or Bright’s disease. Doctor Bobo testified that he then informed the insured as to his con dition and also that his ailments were incurable. Doctor Lowther, who was mentioned in the application as having treated the insured for chills and fever, testified that the insured came to him for examination and treatment several times during 1914 and 1915, and that he found him to have an infection of the kidneys known as chronic Bright’s disease, and that he communicated to Glasgow the nature of his ailments, telling him that he regarded them to be incurable.
As against this evidence there was a certificate of Doctor Davis, the physician of the Camp, given when the application was made, to the effect that the insured was in good health, free from the diseases mentioned and safely insurable. Besides this certificate, the evidence offered by plaintiff was negative in character and was mainly that of the widow of the. insured, who testified that she- did not know of the treatment of her husband for Bright’s disease nor of his having any ailment except chills and fever. However, she did corroborate the testimony of Doctor Clifton in one respect. She testified that she called Doctor Clifton in 1915 to visit and treat her husband for an illness which she said' was the result of inhaling a poisonous gas. She admitted that the doctor made an examination of his condition and prescribed certain medicine which was given to the insured. The finding that he had not consulted nor been attended professionally by Doctor Clifton was therefore contrary to the evidence of both plaintiff and defendant. It was practically admitted that there was a consultation, and while there is a dispute as to the nature of the ailment for which the doctor was called, it is conceded that he made an examination and attended the insured within the period named in the application. This is a material question to which an untruthful answer was given by the applicant. It has been held that a false answer to a material question operates to annul the insurance contract. (Hoover v. Royal Neighbors, 65 Kan. 616, 70 Pac. 595). In Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62, the effect of a false answer to a like question was under consideration, and it was said:
“The question is important because if- an affirmative answer be given the company may make an investigation and ascertain the exact truth regarding the cause for the consultation and the state of health it revealed or ought to have revealed. It requires no argument to show that the action of the company may well he influenced by the answer to this question.” (p. 151.)
In the finding made, the jury manifestly ignored the evidence, and this of itself is enough to overthrow the verdict returned. While the jury were at liberty to disbelieve and disregard the testimony of any witness, if they deemed it unworthy of belief, that given by the medical witnesses who stated that they had been consulted by the applicant, and had treated him for Bright’s disease, was circumstantially given and has the marks of verity. It was corroborated by a witness to whom the insured admitted that he had been attended by these physicians and that they had treated him for kidney diseases. The jury had no right to disregard credible testimony merely because the plaintiff testified that she had no knowledge of such consultation and treatment. Negative testimony of that character is entitled to little, if any, weight, since the insured might have consulted the physicians and been treated by them without her knowledge. Their testimony on these questions can hardly be said to have been contradicted, and is of a very convincing character.
We place the decision, however, upon the baseless finding that the insured had not consulted or been attended by Doctor Clifton in 1915. For the error of the court in upholding the finding and verdict, the judgment is reversed, and the cause is remanded for a new trial.
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The opinion of the court was delivered by
DAWSON, J.:
This lawsuit arose between plaintiff and defendant, both grain dealers, over the sale of a carload of wheat. Sales of other carloads of wheat were incidentally involved.
The plaintiff was a grain dealer in Wichita and Winfield, and the defendant was engaged in the same business in Topeka. On August 3, 1917, by telephone communication the defendant purchased from the plaintiff two carloads of No. 2 hard wheat at $2.87 per bushel. Pursuant to the custom of grain merchants, written confirmations of this sale were mailed to each other by the parties. That of plaintiff reads:
“M. W. Cardwell Grain Co. “August 3, 1917. “Topeka, Kansas.
“We confirm sale to you today by telephone of two (2) cars No. 2 hard wheat at $2.87 per bu. basis Kansas City. Shipment within ten days via -. To be billed to Topeka and routed-. We do not accept any liability (save for our negligence) if .grain arrives otherwise than billing instructions.
“Test terms, official grades and weights to govern. Our drafts B-L attached to be paid by you on presentation. It is also agreed that this confirmation is part of a contract, and its acceptance without notifying us of error herein, is acknowledgment of contract as above. We reserve the right to route all shipments, except as otherwise agreed upon. . . .
“John Hayes Grain Co.”
Defendant’s confirmation reads:
“John Hayes Grain Company, “August 3, 1917.
“Winfield, Kansas. . . .
“We confirm sale two cars No. 2 hard wheat of 1,000 bushels each ..............at $2.87. Basis of Kansas City. Grade official, market’s difference for lower grade. Weights official. Shipment prompt. Via west of Enid on the Rock Island. Bill to Topeka, Kansas.
“This (sale purchase) is made subject to sight draft with B. L. attached unless otherwise stated hereon. . . .
“M. W. Cardwell Grain Co.”
Plaintiff received defendant’s confirmation the following day, and immediately wrote to the defendant—
“We note you confirm two cars 2 hard one thousand bushels each. We will try to furnish sixty capacity ears on this contract. .However, most of the Rock Island stuff has been running eighty capacity and it is probable that you will get eighty capacity cars.”
To this reply defendant made no response, and pursuant to this contract the plaintiff, on August 9, shipped one carload of wheat, containing 66,000 pounds of wheat, about 1,100 bushels, and drew a draft upon defendant for the agreed price, less a margin of $9 to cover discrepancy in weights and the like. Defendant honored and paid this draft and accepted this carload of wheat.
About this time Federal control of the price of wheat was foreshadowed, which caused a sharp decline in the market price. On August 10, plaintiff shipped the second carload of wheat to defendant, 87,130 pounds, or 1,452 bushels, and drew on defendant for the agreed price less a small margin for dis: crepancies; but defendant failed to pay, and the draft went to protest on August 13. On the same day, after plaintiff’s draft had been dishonored, defendant agreed with plaintiff’s Win-field agent to accept a 60,000-pounds capacity car in lieu of the larger one declined, and defendant agreed to extend the time for shipment another ten days. Thereupon plaintiff sold the larger carload elsewhere and shipped to defendant another carload, 64,800 pounds, or 1,080 bushels. Defendant received the invoice of this carload on August 16 and wired plaintiff to hold the car at Herington, and also telephoned the railway company requesting it to hold the car at Herington for diversion. The railway company complied. Next day, August 17, plaintiff’s draft for the agreed price, $2,965, less margin of $35 for discrepancies, was dishonored by defendant, his stated reason being that the amount was incorrect. While the amount of the draft was not too large, the plaintiff again tendered a bill of lading for the car, with a draft reduced to $2,700. This draft was likewise dishonored. The defendant wrote to the plaintiff that because of plaintiff’s failure to reduce the draft on this shipment on account of a claimed overpayment for the earlier shipment and upon another prior shipment not here concerned, “I herein cancel the contract on the third car of wheat.” Plaintiff promptly notified defendant that he would not agree, to such cancellation; he sold the wheat elsewhere at the then current market price; and brought this action for the difference, and for some small items of protest fees.
The trial court made findings of fact and gave judgment for plaintiff,, and allowed defendant a counterclaim for overpayment on one of the earlier shipments of wheat.
Defendant appeals, contending that there was no meeting of the minds of the parties as to the amount of wheat purchased and consequently no contract; that the contract was not enforceable because it was too indefinite and uncertain; that the plaintiff first breached the contract by insisting that the defendant accept and pay for more wheat than he agreed to purchase, and by plaintiff’s failure to deliver the amount of wheat which defendant had purchased. Another error assigned pertains to the measure of damages.
Touching the making of the contract, and its terms, the record shows that the parties by telephone closed a bargain for the sale and purchase of two carloads of wheat. Under that bargain, any ordinary carloads would answer the terms of the contract as no special carload capacity was prescribed. When defendant, in his written confirmation of the contract already made (Commission Co. v. Mowery, 99 Kan. 389, 161 Pac. 634, 162 Pac. 313), specified carloads of 1,000 bushels capacity, he attempted to inject a particular limitation not covered by the original bargain. The plaintiff did not assent to that limitation. He promptly notified defendant that the prevailing type of grain car in use in that part of the country was one of 80,000 capacity, and probably that was the capacity of the cars which would be furnished to him. Defendant raised no further discussion as to the capacity of the carloads which he had purchased, and he became bound to accept and pay for two carloads whether they were of the larger or smaller size. (Strong v. Ringle, 96 Kan. 573, 152 Pac. 631; Wallingford v. Grain Co., 100 Kan. 207, 164 Pac. 275.)
There is no merit to the defendant’s argument that the aggregate amount of wheat which he agreed to purchase was 2,000 bushels. It was shown by evidence that even if the carload capacity had been specified, such specification would only be an approximation, and that any carload of wheat may overrun its specified capacity by as much as ten per cent. Defendant was a grain merchant and he knew that fact; and the contention that he agreed only to buy and pay for 2,000 bushels of grain, neither more nor less, cannot be countenanced. Plaintiff was clearly within the terms of the contract when he furnished defendant the second and larger carload of wheat, but he did not need to insist on his strict legal right on that point; he might show some leniency to defendant on account of the falling price of wheat (Dubbs v. Haiworth, 102 Kan. 603, 606, 171 Pac. 624), and he could and did lawfully agree with defendant to divert the large carload and to supply a smaller one in its stead upon defendant’s expressed assent to waive the matter of delivery within the originally specified time. The defendant’s excuse for dishonoring the draft — that it was drawn for too large an amount, was ill-founded; it was not too large, and the money was then due. He should have paid it. Moreover, he had already exercised an act of ownership and dominion over the carload of wheat by causing the railway company to stop the car in Herington for diversion. It was then his carload of wheat, subject to the rights of the plaintiff for payment before surrender of the bill of lading — the evidence of title.
Nor did the item of overpayment on the earlier shipment of wheat affect the matter. That item was a subject to be settled according to the custom of grain merchants, when defendant should submit the official grades and weights pertaining to that earlier shipment. He had not submitted that data when he refused to honor the draft on the second carload of wheat.
Defendant also complains of the amount allowed plaintiff as damages. He points out the long delay which occurred after he breached the contract before the plaintiff effected a sale of the wheat elsewhere. It was not sold until September 7, and meantime the government control of wheat prices had become effective, whereas, defendant contends, if plaintiff had diligently sought a market for the wheat elsewhere it might or could have been sold with little loss to either party. But it was shown that defendant caused the railway company to hold the car at Herington. Meantime also, plaintiff, at defendant’s insistence of the amount of the draft being too large, had sent another draft reduced to $2,700, and it was not until August 25 that notice of its dishonor reached him. He then acted with dispatch. He wired another grain dealer to sell the carload, but as it was held in Herington for some days pursuant to defendant’s instructions to the railway company, the government price became effective September 1. The wheat was sold at that price September 7. There was some trouble about locating the car. Plaintiff did nothing to stop the car at Herington. He did not know that defendant had stopped it there. He supposed the car was in Topeka, and it was to another Topeka grain merchant that plaintiff addressed himself to sell the car. There was no unreasonable delay on plaintiff’s part in seeking and effecting another sale.
No error is discernible in this case, and the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
On February 22, 1918, James Strachan, being the owner of a quarter section in the southwestern part of Dickinson county, executed to Hannah Merrill, a minor, a deed therefor, reserving to himself the possession, rents, profits and control during his lifetime. A crop of wheat was sown on a portion of the farm in the fall of 1918 by Clarence Holmes, as a tenant of Strachan. By the terms of the tenancy Holmes was to deliver to Strachan at market one-third of the wheat grown on the place during 1918 and 1919. Nothing further is disclosed as to the character or conditions of the lease. Strachan died March 13, 1919. The wheat was presumably harvested by Holmes, whose right to retain two-thirds of -it is nbt challenged. The executor of Strachan, claiming to have been entitled to one-third of the wheat, amounting to 415 bushels, brought this action against the guardian and Holmes for its value, charging them with its conversion. A demurrer was sustained to the petition, which stated substantially these facts, and the plaintiff appeals.
The reservation in the deed executed by Strachan was merely of a life estate. There was nothing in the phrase employed in this connection to indicate a purpose to reserve anything further. The rent being payable in wheat delivered at the market, there is a fair implication that the grain was all the landlord was to receive of this crop. (Mull v. Boyle, 102 Kan. 579, 171 Pac. 652.) The question involved is therefore this— Where one having the title to a farm for his own life leases it for a share of the harvested annual crop and dies after the crop is planted and before it has matured, does such share go to his estate?
Under the common law if the life tenant sows a crop and dies before its maturity it goes to his personal representative under the doctrine of ¿mblements. (8 R. C. L. 365; 17 R. C. L. 634; 8 A. & E. Encycl. of L., 2d ed., 318; 16 Cyc. 621.) If he dies between seedtime and harvest after having procured a “cropper” to operate the farm for a -share of the crop, he is regarded as having had possession of the land and as having owned the growing crop or an interest therein (24 Cyc. 1464; 17 C. J. 382-383; 8 R. C. L. 373-374), and the title passes to his estate, perhaps in conjunction with the cropper, the remainderman taking nothing. (Vawter v. Frame, 48 Ind. App. 481.) If, however, he leases the land for a cash rent payable at a date subsequent to the harvest and dies before the maturity of the crop, the lease comes at once to an end, the remainderman becoming entitled to possession of the land, the lessee, however, owning the crop and having the right of ingress and egress for the purpose of caring for and harvesting it. (See the authorities concerning emblements, already cited.) In such a case the lessee is not required to pay rent to any one; not to the lessor because it had not fully accrued during the existence of the lease and the common law permits no apportionment; and not to the remainderman because he was a stranger to the lease, which could not inure to his benefit because it had ceased to exist the moment his title accrued. (II Blackstone,'*124, 1 Cooley’s Blackstone, 4th ed., 528; 1 Tiffany on Landlord and Tenant, § 176, p. 1072; 1 Washburn on Real Property, 6th ed., § 245.) The unfair advantage thus given to the lessee has been corrected in England by a statute (11 Geo. II, c. 19, § 15) allowing the executor or administrator of the life tenant to recover so much of the rent as was proportioned to the part of the rental period which had elapsed at the time of his death. A number of American states (Kansas not being among them) have enacted similar statutes. (1 Tiffany on Landlord and Tenant, § 176, p. 1077, note 383.)
It follows that the plaintiff in the present case — the executor of the life tenant — has no right of recovery under the common law unless by reason of the fact that the rent was to be paid in a share of a crop instead of in money or some other form of property. It had not accrued at the time of the landlord’s death. “Rents have not accrued until they become due, and grain rent, to be paid at threshing time, does not become due until that time.” (Vawter v. Frame, supra.)
If his executor is entitled to a share of the matured crop when the rent is payable in that commodity and not otherwise, it must be upon the theory that in that situation the life tenant is the owner or part owner of the growing crop. This is a matter concerning which there is some difference of judicial opinion. When land is leased for a part of the crop the more usual view is that the landlord has no title to any part of the crop until its division (24 Cyc. 1469-1470; 8 A. & E. Encycl. of L., 2d ed., 317) ; from which it would result that on the death of a landlord having only a life estate, between sowing and reaping, his executor or administrator would take nothing. (See Jennings v. Hembree [Ind. App.], 124 N. E. 876; Osborne v. Osborne [Tex. Civ. App.], 138 S. W. 1062; Borie v. Crissman, 82 Pa. St. 125.) In a dictum in Wilhoit v. Salmon, 146 Cal. 444, it is assumed that under such circumstances the landlord’s share of the crop would go to the personal representative of the life tenant, but the suggestion that the payment of the rent had not become due at the time of his death does not appear to have been considered. It is said that tenancy in common in the crop results from an agreement to cultivate land on shares (24 Cyc. 1471; 8 A. & E. Encycl. of L., 2d ed., 325) or any “contract whereby the use of land is given to a person to cultivate and return to the owner a specified portion of the crop produced” (8 R. C. L. 374). The words just quoted have obviously something of a common origin with a part of this language:
“Every form of agreement by -which land is let to one who is to cultivate the same and give the owner as compensation therefor a share of the produce, creates a tenancy in common in the crops. An agreement to cultivate land on the shares is not a lease.” (Freeman on Cotenancy and Partition, 2d ed., § 100.)
In a later note by the author of this text the proposition is stated in this form, which is warranted by a number of well considered cases:
“Every form of contract by which the use of land is given to one who is to cultivate it and give the owner as compensation therefor a share of the produce, creates a tenancy in common in the crop, and this is so whether the agreement between the parties is a lease or a mere cropping contract.” (Note, 98 Am. St. Rep. 959.)
There is some confusion in the decisions growing out of the difficulty in classifying particular contracts as leases or as cropper’s agreements, and some actual conflict. (See note, 37 Am. Dec. 317; 2 Tiffany on Landlord and Tenant, § 253, 6.) We accept the view, however, that where the relation of -landlord and tenant exists the landlord at the common law has no title to the growing crops (in the absence of a special provision of the contract to that effect), althpugh the rent is to be paid in a share of a matured crop; that there is a real distinction in this regard between a lease of the land, the rent being payable in a share of a specified crop, and a contract for its cultivation on shares. The fact that the income to be derived by the owner from his land is made to depend upon the prosperity of the season gives the transaction something the color of a joint enterprise, but is not sufficient to change its essential character. In a particular case the question whether the relation of the parties is that of lándlord and tenant, employer and employee, or participants in a common venture, must turn upon their actual intention as gathered from the entire contract, the use of such words as “lease” or “rent” not being necessarily controlling. Here there is nothing in the pleading to show that they were anything but those of lessor and lessee. It results from this view that except as the common law may be modified by statute the share of a crop that would go to a life tenant as rent if he lived, in the event of his death before its maturity does not go to his estate.
2. The plaintiff contends, however, that under the situation presented the landlord owned a third interest in the growing crop in virtue of the statute reading:
“When any such rent is payable in a share or certain proportion of the crop, the lessor shall be deemed the owner of such share or. proportion, and may,'if the tenant refuse to deliver him such share or proportion, enter upon the land and take possession of the same, or obtain possession thereof by action of replevin.” (Gen. Stat. 1915, § 5980.)
To determine the meaning of the term “such rent” it is necessary to examine the preceding section, which reads;
“Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as hereinafter provided.” (Gen. Stat. 1915, § 5979.)
It will be noted that in the provision last quoted the only qualifying word applied to the rent of farming land is “due.” It is true that that word is often used in the sense of “owing,” and applied to an indebtedness irrespective of its maturity. But some qualification is needed to arrive at a reasonable interpretation. It' cannot be supposed that the legislature intended that the landlord should have a lien upon the crop of each season for the entire rent that would eventually accrue upon a lease covering (for instance) a period of five years. A natural plan would seem to be to have the crop of each year stand as security for the rent of that year, but no such purpose is expressed. We conclude that the word “due” was used with the intention of limiting the amount of rent for which a lien is given to such as had matured — that for which the tenant was in arrears. It is true that in one instance this court has upheld a lien claimed for rent which had not matured, but the point now under discussion was not there raised or considered. (Neifert v. Ames, 26 Kan. 515.)
The rent referred to in section 5979 being that which had become due, the phrase “any such rent” as used in section 5980 is naturally to be interpreted as meaning matured rent. This construction is the more readily to be adopted because of the context. The section provides not only that the lessor shall be deemed the owner of a share of the crop, to which reference is had, but that he may, if the tenant refuse to deliver it, take possession of it or maintain replevin. Obviously within the meaning of the statute the tenant could not refuse delivery of a part of the crop, nor could the lessor take possession of it, until it had been harvested, or at all events, until it had matured. It is held that where a growing crop is destroyed by the tortious act of a third person the landlord has such an interest that he may maintain an action for damages. (Sayers v. Railway Co., 82 Kan. 123, 107 Pac. 641.) But in that situation, the ripening of the crop having been prevented, the maturity of the lessor’s claim for rent may be regarded as having been thereby accelerated. We conclude that where rent is payable in a share of the crop the statute does not give the lessor any title thereto prior to its maturity, and therefore that the rule of the common law as to the disposition of the landlord’s share in the circumstances stated still controls.
The provision of the statute that “rents from lands granted for life or lives may be recovered as other rents” (Gen. Stat. 1915, § 5972) has no bearing on the question here involved, its obvious purpose being to do away with the ancient rule that no action of debt lay for a freehold rent, reserved on a lease for life, during the continuance of the freehold out of which it issued. (Ill Blackstone, * 231, 232, 2 Cooley’s Blackstone, 4th ed., 1023.)
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The action was one to cancel an oil and gas lease, in which the plaintiffs prevailed, and the defendants appeal.
Except for a single word in one clause the instrument was an ordinary oil and gas lease for the term of one year, “and so long thereafter as gas or oil is produced or operations are continued,” etc. The stated consideration was the payment in cash of $520 and “the covenants and agreements hereinafter contained on the part of the parties of the second part, to be paid, kept and performed.” The lessors were to receive a royalty of one-eighth of all the oil produced and saved from the premises; and gas was to be piped to within fifty feet of their residence on the premises for their domestic use, free of charge.
The controversy turns over the effect to be given to a clause by which the lessees agreed, “to complete a well on said premises within sixty (60) days from the date hereof, or in case of a failure to complete a well within the time-above specified, to pay to the first parties fifteen dollars ($15) in advance for each additional month such completion is unavoidably delayed from the time above mentioned for the completion of such well, until the well is completed or this contract is surrendered, as is hereinafter provided; such payment for delays shall be made by check mailed to credit of parties of first part or deposited to their credit in” a certain bank at Elk City.
Plaintiffs’ evidence showed that the land embraced in the lease lies within an extensive gas field, and that at the time of the trial there was one well within 300 feet of plaintiffs’ land with a daily capacity of 23,000,000 cubic feet of gas, and within a quarter of a mile was another well with a daily capacity of 20,000,000 cubic feet. There was evidence that the defendants had a drilling rig of their own within four miles of the land at the time the lease was delivered, and that no effort was made by them to move a drilling rig onto plaintiffs’ land, and that no well had been commenced or completed. The trial court found that the defendants made no effort to develop the land within sixty days from the 10th day of August, 1918, the date the lease was executed, and that this failure was not the result of any unavoidable delays; and that on October 12 plaintiffs caused a written notice to be served upon defendants declaring that the lease was void for the defendants’ failure to keep and perform the conditions and covenants of the lease.
As conclusions of law the court held that the lease provided by its terms that a well should be completed within sixty days, except that its completion might be deferred by some unavoidable delay, and that by reason of the omission and neglect of the defendants to keep and perform this covenant they had forfeited their rights, and judgment was entered canceling and setting aside the lease.
Whether, as plaintiffs contend, the $520 cash payment was what is commonly known in the oil fields as a bonus paid the landowner to induce him to give the lease and was not intended as rental, nor to defer drilling nor to cover any neglect or omission on the part of the lessees, it is plain that part of the consideration was expressly stated to be the performance by the lessees of the covenants and promises contained in the instrument itself.
It is argued by the defendants that, inasmuch as forfeitures are not favored in law, and are despised in equity, it should be held that the clear grant, giving to defendants the rights as lessees for a period of one year, and as much longer as oil oi-gas might be found in paying quantities, cannot be cut down by implication or by ambiguous expressions. Authorities are cited to the effect that where a term is demised in clear and apt words it can only be defeated by words as strong and express as those by which it is created. (Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625.) It is- insisted that the clause upon which the plaintiffs rely does not, by any clear, express language, cut down the one-year period granted by the preceding clause; that if the word “unavoidably” had not been written in the lease, we would have the ordinary oil and gas lease, and by the payment of $15 monthly rental in advance the lessees could postpone drilling if they desired, and still hold the lease for the full period of one year. It is urged that the inquiry for the court is, not what either of the parties necessarily intended the lease to mean, but what does it, in fact, mean? The defendants say:
“It means that the lessees agreed to complete a well '. . . within sixty (60) days ... or ... in case of a failure to complete a well within the time above specified, . . . they would pay to the lessors for each month they were unavoidably delayed the sum of fifteen ($15.00) dollars. It means just that and nothing more. It does not mean that in case there should be no unavoidable delay . . . there should be no delay at all. That is what plaintiffs want to construe it to mean. Their idea doubtless is that the parties would not be foolish enough to allow a delay without any particular reason and not require a rental, and require it only when the delay was unavoidable, and still allow the lease to remain in force.”
Defendants’ argument is that there was no absolute agreement on their part to drill a well within sixty days; that the lease does not say, nor mean, that. It is insisted that the lease was granted for one year; the only limitation being that the lessees should complete a well'within the sixty days, or pay a certain rental for such time as they were unavoidably delayed; and attention is called to the fact that the trial court made a finding that defendants were not unavoidably prevented from commencing and completing a well within sixty days. It is therefore argued that in order to cut down the one-year period, expressly granted by the lease, it is necessary for the court to read into the sixty-day clause a provision that there could be no delay except where it was unavoidable.
The defendants’ construction of the lease, followed to its logical conclusion, would render the provision for completing a well within sixty days of no effect. By mere proof that they had determined to make no effort to drill a well within sixty days, and that their failure was not caused by unavoidable delay, the lessees could keep the lease in force for one year without the payment of the $15 per month. The agreement to complete a well within sixty days would not be binding because of the alternative provision, “or in case of a failure to complete a well within the time above specified, to pay” $15 for each additional month completion is unavoidably delayed.
We cannot agree with defendants’ contention that it is not the duty of the courts to determine what the parties to the contract intended. In any contract where the parties disagree as to the meaning of its terms, the question to be determined is: What must the parties be held to have intended by the terms used? The provision requiring completion of a well within sixty days was express, and not implied, and in our opinion it cannot be ignored. The defendants were not unavoidably delayed, so that we may disregard entirely the provision requiring them to pay $15 a month; but what becomes of their express agreement to complete a well within sixty days in case they were not unavoidably delayed? It was an express covenant that formed part of the consideration for the granting of the lease; its violation warranted the judgment canceling the lease, and it follows that the judgment must be affirmed.
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The opinion of the court was delivered by
Mason, J.:
While Nellie Weston was driving a one-horse wagon in the city of Coffeyville she was injured as the result of a collision with a part of a freight train which was backing along a track of the Santa Fe railroad intersecting the street at right angles. She brought an action against the director-general of railroads and recovered a judgment from which this appeal is taken. Reversal is asked on the grounds that there was no evidence to support the finding made by the jury as to the defendant’s negligence, and that in any event the plaintiff under the established facts was barred from recovery by her own negligence.
1. In reply to a question calling for a statement of the respect in which the defendant’s agents had been negligent the jury answered: “Insufficient flag service. Switching too fast. Yard not cleared.” The street was also crossed, at a distance of about a hundred feet west of the Santa Fe tracks, by tracks of the Missouri, Kansas & Texas railroad. A flagman was employed who did duty for both roads. The defendant inter-, prets the finding of “insufficient flag service” as meaning that an additional flagman should have been employed — that a watchman should have been employed specially to guard the Santa Fe tracks. It is, of course, necessary to give the language of the finding any construction of which it is reasonably susceptible in order to sustain the judgment. The plaintiff was driving from the west. Her testimony was that the flagman beckoned for her to come on and cross the Missouri, Kansas & Texas tracks, and that she did so; that then he kept motioning for, her to drive up a little faster, which she did, driving right on. In view of this evidence we think the finding that the defendant was negligent by reason of “insufficient flag service” may and therefore must be interpreted as meaning that the ' negligence consisted in the insufficiency, that is in the defective quality — the faulty character — of the service rendered by the flagman on duty, in signalling the plaintiff to keep on after she had crossed the Missouri, Kansas & Texas tracks, instead of warning her to wait until the cars had passed over the street. So understood, the finding is obviously supported by the evidence.
It is argued that the plaintiff’s injury was not due to the speed of the cars — that the accident would have occurred irrespective of the rate at which they were moving, since the plaintiff did not see them before trying to cross. It may be, however, that if they had been moving slower the employees in charge might have been able to stop them in time to avert the collision after discovering the plaintiff’s peril. But in any event, the finding as to the flagman’s remissness being sufficient to support the verdict, it is immaterial whether or not either of the other two forms of negligence mentioned was established. (City of Emporia v. Norton, 16 Kan. 236.)
2. The defendant argues that the plaintiff was under an absolute duty to ascertain whether any cars were approaching before crossing the track, by looking and listening and if necessary by stopping for the purpose, and that the evidence and findings show that she did not do so. The plaintiff contends that she was relieved from this obligation by the fact that the flagman signaled her to go ahead across the track. The defendant responds by saying that this contention is not available because it was excluded by the instructions. The jury were told that where a flagman is maintained at a crossing “and such flagman signals the traveler to cross, such traveler may rely to some extent upon the presumption that it is safe for him to go upon the crossing, nevertheless the traveler must exercise ordinary care as heretofore suggested, that is, care commensurate to the dangers to be apprehended. He must exercise, and continue to use his senses of sight and hearing and take every precaution that an ordinary prudent person would do under the same and similar circumstances.” Under this instruction the fact that the flagman signaled the plaintiff to go ahead did not relieve her wholly from the duty of looking out for herself, but did prevent her omission to .take any specific precaution from constituting' contributory negligence as a matter of law, the jury being left to determine whether in view of all the circumstances, including the giving of the signal by the flagman, she had exercised reasonable care. This view is in accordance with the weight of authority.
“It cannot be said as a matter of law that the plaintiff in such a case may rely solely upon the flagman; neither can it be said, as a question of law, that his failure to look or listen is not contributory negligence. It is á question of fact, to be determined by the jury.” (22 R. C. L. 1045.)
We conclude that whether or not the plaintiff would otherwise have been precluded as a matter of law from recovery by her failure to exercise greater care on her own part the fact that she was obeying the direction of the flagman made the question whether her conduct amounted to due diligence one for the jury.
Complaint is made of the refusal to give certain requested instructions, but as the legal propositions involved are those already considered they do not require discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
In a petition for rehearing filed by Adams it is said: “This cash payment and these eight notes were in payment of the purchase price of this stock.” (The italics are in the petition.) Later on in the petition the petitioner presumably contends — he offers to bet — that no court has ever held that a sale for an agreed price, part of the purchase money paid, notes executed for the balance, and the seller retaining possession until the notes are paid, “does not constitute a sale on credit.” (The italics are in the petition.) The petitioner will be allowed to settle this controversy with himself, in his own way. It is elementary law that money is not paid by a promise to pay. A note is not regarded as payment of the debt for which it is given unless there is an express agreement to that effect.- Without more, the giving of a note for the price of goods sold merely postpones right of action on the contract of sale until expiration of the period of credit stipulated in the note. In this instance the memorandum of sale made full payment of price depend on payment of the notes; that is, credit was extended until maturity of the notes.
Time and again in the petition the court is accused of treating the contract as rescinded. The argument of the petitioner’s adversary was that rescission occurred. The court gave a paragraph of the opinion to the subject, and held that the contract of sale was not rescinded.
The petitioner says:
“You have cited in your opinion the case of White Walnut Coal Company v. Krescent Coal and Mining Company, 42 L. R. A., n. s., 669, in support of your decision in this case.”
The coal company case is then discussed, and the petitioner concludes it is distinguishable from hig case. This court made no reference whatever to the coal company case. The court referred to an editorial note, beginning on page 669 of volume 42 of L. R. A., n. s., and containing pertinent authorities on page 672.
The petitioner says: “This court has treated this as an executory contract, when in fact it was an executed contract.” (The italics are in the petition.) The court considered it un necessary to employ the expressions “executory contract” and “executed contract,” and they do not appear in the opinion. The court chose to deal directly with the facts of the transaction, rather than give a name to it and then argue from the abstraction. The court was all the more inclined to adopt this method because of the confusion in the authorities respecting the meaning of the term “sale,” and respecting application of the terms “executory” and “executed” to contracts of sale. In this connection the petitioner cites the case of Echternach v. Moncrief, 94 Kan. 754, 147 Pac. 860, which quotes from Acme Food Co. v. Older, 64 W. Va. 255, 17 L. R. A., n. s., 807, as follows:
“There may be an executed contract, passing title, without delivery of possession, as in the case of the retention of a seller’s lien. There, a count for goods sold and delivered could not be maintained, but one for goods bargained and sold could be, for the contract is complete and the seller entitled to recover the price, although the goods have not been delivered. ' It is an executed contract.” (Echternach v. Moncrief, supra, p. 760.)
The petitioner says that if this quotation does not state the law, it is likely to mislead the profession.
It may be observed that the word “executed,” in the first line of the quotation, and the last sentence of the quotation, may be omitted without impairing its force; but it states the law, and should not mislead any one familiar with the law of pleading and the law of sales. Of course there could be no common-law count for goods sold and delivered, because while there had been a sale, there had been no delivery. Of course there could be a common-law count for goods bargained and sold, because all the elements of a bargain and sale were present. The words “bargained and sold,” in a common-law declaration against a buyer of goods, import a sale which vested title to the property in the buyer. In the hypothetical case title had passed, and the buyer was entitled to recover price, although the goods had not been delivered because retained under a seller’s lien. The situation was the same as it was in this case, before the petitioner elected to resell. He still held custody of the goods for the buyer when price was paid, and the buyer still had title to the goods. We are now dealing with an entirely different Situation, created by act of the petitioner.
The court freely concedes that according to good authority the contract in this case is properly classifiable as executed; but the fact is not of the slightest importance. The contract was executed because nothing remained to be done to constitute a completed sale, although price had not been paid and the goods had not been delivered. The prime effect of a sale — the vesting of title to the goods in the buyer — had been accomplished. It does not follow, however, that the seller could deprive the buyer of title, by resale of the goods, and still demand price.
When the petitioner resold the goods, he made a radical change in the relation of himself and of the buyer to the goods. He no longer held them for the buyer, and the buyer no longer owned them. Having chosen not to keep the goods to be delivered to the owner on payment of price, he could not sue for price. Goods on one side and price on the other resemble opposite terms of an equation, and whenever goods are eliminated, there is no equivalent for price. The right of the seller must then be stated in another way, that is, in terms of damages. Election to resell was an election to liquidate, as far as proceeds of resale would go, damages resulting from breach of the buyer’s obligation to pay price and take the goods, and then to rely on an action for damages for the remainder of the loss, if any. In case of a fair resale, the measure of damages is the difference between the net resale price and the contract price. The rule is precisely the same as if the contract had remained executory, and the seller had fixed his damages by proper resale. (Hardwick v. Can Co., 118 Tenn. 657.)
It requires no argument to demonstrate that the theory underlying recovery of damages is inconsistent with the theory underlying recovery of price. This is just as true when the contract is executed as when it is executory. The two theories are utterly incompatible with each other, and because of that fact, election to proceed according to one of them renders the other unavailable. (Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304, and cases cited in the opinion.)
The petitioner quotes from the opinion in the case of Moore v. Potter, 155 N. Y. 481, as follows:
“It is well established by the decisions of this court that a vendor of personal property, when the vendee has declined to take the property and pay for it, ordinarily has the choice of any of three methods to indemnify himself against loss: (1) He may store or retain the property for the vendee and sue him for the entire purchase price; (2) he may sell the property and recover the difference between the contract price and the price obtained upon a resale; or (3) he may keep the property as his own, and recover the difference between the market value at the time and place of delivery and the contract price.” (p. 486.)
The petitioner then says there seems to be some discrepancy between the three remedies. stated by this court and those stated by the New York court. In what the discrepancy consists the petitioner does not indicate. It is this: First, the rules are stated in different order; second, the extent to which the rules are elaborated is different; and third, different modes of expressing identical rules are employed. The-second and third observations apply to the statement of principle which the petitioner quotes from 24 Ruling Case Law, 108.
All the authorities which the petitioner cites have been discussed, and no sufficient reason for disturbing the former opinion having been offered, the petition for rehearing is denied.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a tenant for damages on account of conversion by the landlord of the tenant’s share of a crop of wheat. The plaintiff recovered, and the defendant appeals.
The defendant asserts that .the tenant forfeited his share of the crop by breach of covenants and abandonment of the premises, and that this subject was not properly presented to the jury. The evidence discloses that the landlord dealt with the tenant on the basis that the tenant had not forfeited and was the owner of the wheat. Just before harvest the landlord, in a letter to the tenant relating to harvesting the wheat, recognized the tenant’s ownership. Assuming that the instructions to the jury were faulty, a new trial would not benefit the defendant.
The defendant rightfully contends that the verdict was too large. The converted wheat was sold on the market for $1.30 and $1.60 per bushel, and these sales furnished the best evidence there was of value. While there was testimony that hard wheat sold for $1.78 per bushel, there was no evidence that the wheat in question was of a grade which would command that price. The number of bushels was not in dispute, and the plaintiff's damages amounted to $1,141.73. The defendant had undisputed claims against the plaintiff amounting to $612.05. The verdict was for $594.90, an excess of $65.22.
The plaintiff did not sow thirty acres of wheat which he agreed to sow, and the defendant was not able to utilize the ground. It lay in the middle of an 80-acre field, the rest of which the plaintiff sowed to wheat. Using the portion of the ■ field sowed to wheat as a standard, the defendant was damaged $91 on account of this breach of the plaintiff’s contract.
The.plaintiff gave his note for $705.50, the amount of which was computed on the basis of a price per acre for grass and alfalfa land. The defendant did make some use of the grass and alfalfa land. He claimed he was not able to derive as much benefit from it as the note amounted to, but no attempt was made to estimate the difference in dollars and cents, and there seemed to be no way of doing so.
There is so little left to try, and it is so manifest that a new trial would not result in greater certainty, that the litigation ought to end. Therefore, the district court is directed to modify its judgment so as to allow the plaintiff $438.68, with interest at six per cent from November 1, 1916. As modified, 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. C. Bradshaw, as administrator, against the Farmers & Bankers Life Insurance Company, upon a life insurance policy. The plaintiff recovered judgment and defendant appeals.
The policy was issued on the life of Emmett Elton Bradshaw on November 27, 1917, and the premium for the first year, $86.90, was paid. Included in the policy was a military and naval-service clause, which reads as follows:
“If, within five years from the date of this policy, the insured shall engage in military or naval service in time of war, the liability of the company, in event of the death of the insured while so engaged, or within six months thereafter, will be limited to the return of the regular premium paid hereon, exclusive of any extra premium, less any indebtedness to the company hereon;
“Unless, before or within one month after engaging in such service, or at the time of issuance hereof if the insured be already so engaged, ■the insured shall secure permit for such service and pay to the company, at its home office in Wichita, Kansas, such extra premium as may be required by the company, and, in like manner, shall pay, annually thereafter, on each anniversary of this policy or within one month thereafter, while the insured shall continue to be so engaged, such extra premium as may be required by the company.
“Within one year after the termination of the war the company will return such portion of the extra premium as in its judgment will not be required to cover the extra hazard. In event that the insured enters such service any total and permanent disability benefit or double indemnity for accidental death benefit shall be cancelled automatically upon such entry and any premium paid for such benefit or benefits shall no longer be collected.
“Service in the aviation corps or on submarines within five years from date of this policy is a risk not assumed under this contract and in event of death while engaged in such service the amount payable shall be limited to the return of the regular premium paid hereon exclusive of any extra premium paid for military or naval service, less any indebtedness to the cbmpany hereon.”
Under a rule of the insurance company permits for military and naval service were granted upon payment of an added premium of $37.50 per year on each $1,000 of insurance. After the issuance of the policy and about June 1, 1918, Emmett Elton Bradshaw was inducted into the military service under the provisions of the selective-service law and sent to Camp Ft. Logan in Colorado, where he was assigned to duty as a member of a cavalry troop which was shortly afterwards transferred to Ft. D. A. Russell in Wyoming. There he was assigned to duty as a blacksmith and horseshoér, but was drilled in the cavalry service and trained as a marksman. The troop to which he had been assigned was transferred into a battery of field artillery on September 8, 1918, and that battery was sent to a camp near West Point, Kentucky. After arriving at the camp in Kentucky he served as chief blacksmith for his company, drawing the pay of a top sergeant, but was not required to drill. About three weeks after arriving at that camp he had an attack of influenza and died as the result of lobar pneumonia on October 13, 1918, in a hospital at Camp Taylor. From the time he entered the military service until his illness he wore the uniform of a soldier and was under military supervision. While being transferred from the fort in Wyoming to the camp in Kentucky he traveled on a pass given by a superior officer, which read: “Pass Sergeant-and horseshoer Bradshaw.” When the claim for insurance was presented the defendant acknowledged liability for and offered to pay the amount of the premiums which had been paid by the insured for the policy, but refused to pay the face value of the policy because of the fact that the insured had entered and was in the military service when he died, and had not obtained a permit nor paid the added premium for the extra hazard arising from such service. There is no dispute as to the facts in the case, no question as to the validity of the contract of insurance, but there is a controversy as to the meaning and effect of the terms of the policy.
The provisions of the war clause, giving them their natural and ordinary meaning, fairly imply that to secure the full indemnity of $2,500, in case the insured engages in military service, he must have paid the extra premiums, and if these are not paid only the limited liability attaches. They recite that if the insured shall engage in military service and he dies while so engaged, the limit of liability will be the regular premiums that have been paid. They further stipulate that if he engages in such service he shall obtain a permit from the company and also pay the extra premiums required by the company and continue such payments at each anniversary of the policy while he is so engaged, and the company in turn agreed that when the war ended it would return any part of the extra premiums not required to cover the extra hazard. It is conceded that about six months after the policy was issued the insured entered the military service and continued in that service until his death, and it is further conceded that no permit was asked and no extra premiums were paid. However, the plaintiff contends that the provision for limited liability does not apply because Bradshaw was not in fact engaged in the military service and that his- death from pneumonia was not the result of military service. It is urged that the word “engage” as used in the policy implies more than that he is in the military service but carries the idea that the extra premium is based upon the hazards attendant upon active service and that the policy when liberally interpreted only exempts the company from liability for the face of the policy when the insured is actually and actively performing functions in or near the firing line or is otherwise exposed to war activities. The insured, it is contended,- was a company blacksmith while he was at the camp and the hazards were no greater than if he had been employed at the same work as a civilian outside of military service and, besides, his death did not result from war activities. The cases cited by counsel relating to war clauses of insurance policies, are not in harmony, but the differing views of the courts rest to quite an extent on the differing terms of these provisions. A somewhat similar provision was before this court in LaRue v. Insurance Co., 68 Kan. 539, 75 Pac. 494. There the policy provided that the insured might serve in the militia or the military or naval service of the United States in times of peace without prejudice to the insurance policy, and he might so serve in time of war by giving the insurer notice and paying an. extra premium for the war hazards, but in case of death the company should be liable for the reserve on the policy only. He enlisted in the United States service and aided in putting down the insurrection against the United States government in the Philippine Islands. No premium was paid and it was held that the company was not liable for more that the reserve on the policy.
Among the cases growing out of the late war is Mattox v. New England Mut. Life Ins. Co. (Ga.), 103 S. E. 180). The policy provided that the insured should not engage in military or naval service without the consent of the insurer, and in case he did engage in such service in time of war and his death occurred while so engaged, the liability of the insurer would be limited to the return of the premiums paid on the policy. The insured enlisted in the dental corps of the army and while aboard a transport bound for France he became ill with pneumonia and died while at sea. At the time of his death he was performing dental service and under the military regulations no combatant service was or could be required of him. The plaintiffs sought a recovery of the face value of the policy but the court gave effect to the terms of the war clause and rendered judgment for the insurer.
In Ruddock v. Detroit Life Ins. Co. (Mich.), 177 N. W. 242, the insured was inducted into the military service after he had obtained a policy which provided that it—
“ ‘shall be incontestable after one year from date, except for nonpayment of premium and except for naval or military service in time of war, without a permit, which are risks not assumed by the company, provided that, in case of the death of the insured while engaged in such service, without a permit, the amount payable hereunder shall be the reserve on the policy at date of death. Military and naval service in time of war shall be construed to include work as a civilian in any capacity whatever in connection with actual warfare.’ ” (p. 243.)
Within three months after entering the service the insured died from disease in a training camp. It was contended in the action that, as he entered the army by conscription and not voluntarily, and as he was not engaged in active military serv ice at the time of his death, the provisions of the military clause were not effective. The court held that such clauses are not contrary to public policy, that the insured was in the military service when he passed the examination, took the oath and was enrolled as a soldier, and that one so inducted into the army is as clearly engaged in the military service when in training as when before the enemy. It was further held that it was competent for the parties to draw the line when liability should cease in time of war, and that the court could not with- • out changing the contract ignore the war clause and hold the defendant liable for the amount named in the policy.
In a case from Missouri the policy provided that if the insured died .while engaged in naval or military service or in consequence of such service, the liability of the insurance company would be limited to an amount equal to the net reserve and, further, that this condition would be waived if extra premiums were paid by one engaged is such service. The insured entered the army under the selective-service act and he died of pneumonia while in training. The court held that the insured was engaged in the military service when he died, that the exemption in the military clause was one which the parties had a right to make and that the insurance company was not liable beyond the net reserve of the policy. (Reid v. American Nat. Assur. Co. [Mo. App.], 218 S. W. 957).
In another case the court of appeals of Missouri held under a stipulation in a war clause that if insured should engage in military br naval service in time of war the liability of the company in the event of death while so engaged or within six months thereafter as a result of such service, should be limited to a return of the premiums. The court held that it was not enough for the insurance company to prove that the insured was engaged in military service and died while so engaged, but that under the conditions of the clause it must further prove that he died as the result of such service. It was held that one who had been inducted into the army was engaged in military service, but that the exemption from liability for death rested not alone upon the insured being engaged in that service, but also upon the cause of death; that is, death “as the result of such service.” It was remarked that proof of the first by no means proved the second. (Malone v. State Life Ins. Co. [Mo. App.], 213 S. W. 877.)
In Redd & Thompson v. Am. Cent. Life Ins. Co., 200 Mo. App. 883, the policy involved contained a provision that “ ‘in case of death from service in war without permission from the company, the full reserve for this policy at the time of such death only will be paid.’ ” (p. 384.) In the application for the policy it was stated that active service in the army in time of war would invalidate the insurance unless a permit was given. The court in a divided opinion held that the term “active service” in a military sense meant the performance of duty against an enemy or operations carried on in his presence in time of war and that one in a training camp thousands of miles from the scene of hostilities was not engaged in active service. The case turned upon the use of the term “active service,” and it was interpreted to mean the service one renders when engaged or enlisted in actual hostilities, and the insured not being in such service at the time of his death, judgment was awarded the plaintiff for the face value of the policy.
In the late case of Miller v. Illinois Bankers’ Life Ass’n (Ark.), 212 S. W. 310, the supreme court of Arkansas passed on a policy containing a clause to the effect that the death of the insured while in military service is not a risk covered by the policy for any greater sum than the amounts actually paid as premiums. The insured died while in a camp in this country, and it was ruled that he was in the military service within the meaning of the provision-exempting the insurer from liability.
In a later case, Benham v. American Central Life Ins. Co. (Ark.), 217 S. W. 462, a condition of the policy was that “ ‘death while engaged in military or naval service in time of war, or in consequence of such service, shall render the company liable for only the reserve under this policy, unless the company’s permission to engage in such service shall have been obtained, and such extra premium or premiums as the company may require shall have been paid.’ ” (p. 4'62.) The insured died of influenza while undergoing training in this country, and it was held by a bare majority of the court that the term “engaged” denotes action and meant death while doing or taking part in some military service, and that taking this term in connection with the phrase “in consequence of such service,” the parties meant that the liability related to a death resulting from some act connected with the service in contradistinction to a period of time when he was in such service. A like interpretation was placed upon a similar clause in Nutt v. Security Life Ins. Co. of America (Ark.), 218 S. W. 675. The justices dissenting in the last two cases insisted that the cases were controlled by the rule of Miller v. Illinois Bankers’ Life Ass’n, supra, and made the forcible contention that the terms of the policy related to the status of the insured and not to the cause of death.
In a case decided a few days ago, the Missouri court of appeals declined to adopt or follow the interpretation placed by the Arkansas supreme court upon the word “engaged” and held that the exemption clause was enforceable where death resulted from pneumonia. (Slaughter v. Protective League Life Ins. Co. [Mo. App.], 223 S. W. 819.)
The supreme court of Wisconsin had before it a policy containing a military clause to the effect that if the insured engaged in any miltary or naval service or work as a civilian in connection with active warfare and died as a result of engaging in such service or work, only a limited liability would attach. Applying the rule that such exemption should be construed most strongly against the insurance company it was ruled that the clause did not limit liability for all deaths in military service but only for such as are due to some cause peculiar to military service. In this case the insured met his death while riding a motorcycle under circumstances it'is said which were not peculiar to military service and it was therefore held that the insured could recover all of the insurance. The court evidently gave force to the provision limiting liability where the service or work was performed in connection with actual warfare. It stated that—
“The hazards attendant upon riding a motorcycle, under the facts set out in this case, were no greater because the insured was engaged in the military service of the United States than if he were performing a like act as a civilian and apart from the military service. In other words, his death resulted ’ from circumstances which are common to military and civil life.” (Kelly v. Fidelity Mut. L. Ins. Co., 169 Wis. 274, 276.)
One of the cited cases is" Myli v. American Life Ins. Co. (N. D.), 175 N. W. 631, where the insured died of influenza while in the naval service. An insurance policy on his life provided that if his death occurred while engaged in military or naval service where no permit for such service had been granted, only a limited liability would attach. The court ruled that, because of other provisions in the policy relating to the payment of double indemnity which were united with the exemption for the extra hazards of military and naval service, the limitation did not apply unless the death resulted from such extra hazards.
Another case cited is Sandstedt v. American Cent. Life Ins. Co. (Wash.), 186 Pac. 1069, which involved a policy contain- ' ing a military clause limiting liability where the insured dies while engaged in military service, and it was determined that the exemption was controlling and judgment was given for the defendant. The principal controversy in that case was as to the effect of statements made by a local agent of the insurance company to the mother of the insured, and it was held that these did not constitute a modification or waiver of the conditions of the policy, and that under its terms no recovery could be had.
A case from West Virginia is cited, but the determination there was placed on a rule of estoppél arising on the representations made and interpretations placed on the policy by the agent of the insurance company when the insurance was taken, on which the insured relied, and had a right to rely, and therefore his failure to pay the extra premiums did not defeat a recovery of the insurance. (Edwards v. Masonic Mut. Life Ass’n [W. Va.], 103 S. E. 454.)
Although there is some conflict in the authorities the better reason is with those which hold that such limitations do not conflict with any public policy and that when they are plainly expressed in insurance contracts parties are bound by them. The extra hazards of military and naval service furnish a good ground for requiring the consent of the insurer and the payment of extra premiums. The decisions denying the enforcement of such provisions are mostly placed on exceptional conditions interpreted to mean that the limitation applies when death results in consequence of war activities or in connection with actual warfare, provisions' not found in the policy in question.
We are unable to agree with those decisions holding that the expression “engaged in military service” means the per formance of functions in actual war or in resisting the hostile action of the enemy. As used in the policy in question the term means no more than the insured was in the military service. Status and not causation is the ground for the limitation and it is plainly provided that anyone engaged in military service may, by obtaining consent of the insurer and paying added premiums, keep alive the whole insurance provided by the policy. Nor do we find anything in the conditions of the policy that gives ground for a distinction between those who volunteer and enter the service by enlistment and those who are taken in under the selective-service act. In either case there is freedom of contract to fix the extent of liability. As was said in Ruddock v. Detroit Life Ins. Co., supra:
“The government to which both owed allegiance had the right to call the deceased to the service. We are unable to perceive that public policy prevented them from contracting that if that event took place defendant should not be bound if death occurred while in such service unless a permit was given and an additional fee or premium paid. The parties did not differentiate between voluntary and involuntary service, between service performed under enlistment and service performed under the draft law, and we cannot, without making a contract for them, read such differentiation into the policy.” (p. 245.)
The judgment is reversed and the cause remanded with directions to enter judgment against the defendant for the amount of the premium paid on the policy by the insured.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to recover on a bond given under section 661 of the code of civil procedure (Gen. Stat. 1915, § 7569), for material furnished to defendant James A. Pringle, who, under contract, built a sewer for the city of Topeka. Action was commenced to recover $3,118.48, of which $2,161.47 was afterward paid. Judgment was rendered against the plaintiff in favor of the United States Fidelity and Guaranty Company for $957.01 with interest thereon. The plaintiff appeals from the judgment against it and in favor of the United States Fidelity and Guaranty Company. Answers to special questions were returned by the jury as follows:
“1. State when James A. Pringle completed the work on Sewer No. 46 on his contract with the city of Topeka, giving the day, month and years? Ans. January 9, 1917.
“2. State whether or not all the materials claimed to have been furnished by plaintiff to James A. Pringle to be used in the construction of said Sewer No. 46 were in fact used by Pringle in the construction of said sewer; and if not, give the value of the material not used? Ans. No. $1,209.97.”
On the 'facts stated therein these answers are conclusive if there was evidence to .support them. Concerning the answer to the first question, the plaintiff in its abstract says:
“The evidence on the point of the date of the completion of the work' by Mr. Pringle was in conflict, some of the evidence putting the date of the completion on January 9, 1917, and the evidence of the defendant Pringle putting it on January 12, 1917. The evidence, however, without contradiction, showed that the work was not accepted by the city engineer and by the mayor and board of commissioners of the city until January 11, 1917.”
An examination of the abstract discloses that there was ample evidence to support the answer to each question.
The statute under which the bond was given, reads:
“That whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, suc;h officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor' or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.” (Gen. Stat. 1915, § 7569.)
The bond reads:
“That we, James A. Pringle, of Topeka, Kansas, as principal, and the United States Fidelity and Guaranty Company, a corporation organized under the laws of the state of Maryland, as surety, are held and firmly bound unto the State of Kansas in the penal sum of one hundred twenty-five thousand eight hundred thirty-four and 89-100 (125,834.89) dollars, lawful money of the United States, for the payment of which we hereby bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.
“Dated this 29th day of July, 1915.
“The condition of the above obligation is such that,
“Whereas, the said James A. Pringle did on the 29th day of July, 1915, enter into a certain contract with the city oij Topeka, Kansas, for the construction of a sewer in Sewer District No. 46 of said city in accordance with said contract and the plans and specifications thereto.
“Now, therefore, if the said James A. Pringle shall well and truly pay and discharge all bills for labor performed and materials used in said work, then this obligation to be null and void; otherwise to be in full force and effect.”
The statute provides that “no action shall be brought on said bond after six months from the completion of said public improvements or public buildings.” (Civ. Code, § 662, Gen. Stat. 1915, § 7570.) The jury found that the sewer was completed on January 9, 1917. This action was commenced on July 10, 1917, more than six months after the completion of the improvement.
The plaintiff seeks to avoid the finding of the jury, contending that, under the contract between the city and Pringle, the improvement was not completed until it was accepted by the city, January 11, 1917. The contract was a long one, and it is not advisable to set it out or to quote extensively from it. It gave large powers to the city engineer in approving and rejecting work done, in making changes in the work to be done, and in ordering work done taken out and other work put in its place. The contract also provided that “the whole of said work must be executed to the full satisfaction of the city engineer in every respect,” and that “the acceptance of work and material will not be final and conclusive in any respect until the completion of the work and the engineer’s final estimate is approved by the mayor and board of commissioners.”
It must be noticed that the language last quoted separates the completion of the work from the final estimate of the engineer and the approval by the mayor and board of commissioners. If the contract was complied with, the work was completed before the engineer made his final estimate, and the final estimate was made before it was approved by the mayor and board of commissioners. The improvement was completed when the last work on it was done; the acceptance of the improvement did not fix the time of its completion. Acceptance might have been delayed by various causes, but not one of them would have delayed the time of completion. If the argument of the plaintiff were good, it would place a meaning on the statute not justified by its language; in other words that argument would change the language of the statute. The legislative mandate controls, and must be followed.
To sustain its contention, the plaintiff has been diligent in the examination of authorities, but those cited are practically of no assistance to the court for the reason that either the circumstances or the controlling statutes are different from those that must be considered in determining the question now under consideration.
The action was begun too late. It was barred by section 662 of the code of civil procedure.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit arose over the custody of a child. Charles A. Woodall and the intervener were married and divorced in Oklahoma. In the action for the divorce the intervener was given the exclusive custody of the child in question, but the husband and father was given the right to see the child at all reasonable times. Later the original decree was modified by the trial court of Oklahoma, and the father was given the right to visit the child at reasonable intervals—
“Such-visits to be made in the presence of the said plaintiff, Eva May Woodall, and when the said defendant is accompanied by some disinterested person, agreeable to both parties aforesaid to this action, and at such places as are agreeable to both said parties to be previously arranged by them in each instance.”
Later the divorced wife moved to Hutchinson, Kan., and married Mr. Hegarty. The child was taken to Kansas, and thereafter the father was put to considerable trouble and expense in visiting it. The mother’s situation was such that the child was in the custody of its maternal grandmother in and near Hutchinson for periods of considerable duration, perhaps over half the time. At one time the father brought an' action in the district court of Reno county to enforce his right to see and visit the child, and judgment was given in his favor.
The present action was brought by Woodall against the child’s maternal grandmother and her husband to procure the unqualified custody of the child. The mother intervened. The trial court decreed that hereafter the mother should have the exclusive custody of the child and its maternal grandmother and her husband should have no direction, custody or control of it, nor should it be allowed to visit them except when accompanied by its mother; and that the father should have full right to visit the child at reasonable times, and—
“It is further ordered that the said father, at any time when the child is not in school or detained hy other sufficient reasons, by giving bond in in the sum of $500, to be approved by the clerk of the district court of Reno county, Kansas, that he will return the child to the custody of said intervener, or in lieu thereof deposit with the clerk of the court $500 in cash or a certified hank check, payable to the order of said clerk of the district court of Reno county, Kansas, shall be allowed to take said child to the state of Oklahoma to visit him and his people for a period of time not to exceed two weeks, and not oftener than three times a year.
“It is further ordered by the court that the said intervener and the said defendants, and all of them, refrain from in any way speaking disrespectfully of the father of the child to the child or influencing or biasing, or attempting to influence or bias the mind of the child against his said father in any manner whatsoever.
“It is further ordered that this court retain jurisdiction of this cause for the purpose of seeing that the conditions of this order are carried out, and if they are not or if the good of the child demands it, to change- the custody of the child.”
The one assignment of error is based upon part of the decree which permitted the father to take the child to Oklahoma three times a year for two weeks at a time.
The judgments of the-district court of Oklahoma were only res judicata, as to the custody of the child so long as the situation of the parties was unchanged. (In re King, 66 Kan. 695, 696, 72 Pac. 263; In re Hamilton, 66 Kan. 754, 71 Pac. 817; In re Petitt, 84 Kan. 637, 643, 114 Pac. 1071; Pinney v. Sulzen, 91 Kan. 407, 414, 137 Pac. 987.) Moreover, the welfare of the child being the paramount consideration, the circumstances pertaining to its custody may always be inquired into, and any order relating thereto may be made whenever the child’s best interests so demand. Thus, in the- analogous case of In re Bort, Petitioner, etc., 25 Kan. 308, where the parents of two children had been divorced in Wisconsin and the custody of the children had been conferred upon their father by that court, it was held that the Wisconsin judgment, while binding the parents inter sese, did not preclude this court from changing the custody of the children from the father to the mother, and it was so decreed.
In this case the altered circumstances amply justified the scant relief accorded the plaintiff by the trial court. When the custody of the child was given to the mother by the Oklahoma court it was an infant a few months old. It was about five years of age when the present judgment was entered — an age when, if ever, it should enjoy the society of its father, with the ennobling influences which that society may quicken in both father and child. When the Oklahoma decree was entered the child was within that court’s jurisdiction. Now it is altogether beyond that jurisdiction. Then the father could, without much if any expense, visit his child at any convenient interval; now he must make an extended and expensive journey into another state to gratify his natural affection by a sight of his child. It was shown that the father had a good home with his own parents, on a farm in Oklahoma, and the circumstances tended to show that periodical visits by the child to that home would advance its interests and welfare.
It is but a small concession which the judgment extends to the plaintiff, and that judgment contains no error — at least none of which the mother can rightfully complain.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a'creditor to enforce the promise of a third person who had assumed and agreed to pay the debt. The district court directed a verdict for the defendants, and the plaintiff appeals.
The plaintiff’s petition and evidence disclosed the following basis for recovery: Sakdol owned a crop of several hundred acres of kafir corn and maize, which was ready for harvest, and which he was financially unable to care for. Sakdol was indebted to Gestenslager for labor performed in growing the crop. Sakdol was indebted to other farm laborers, to the Home State‘Bank of Greensburg, and to others, and in his financial distress had resorted to the practice of giving checks without funds in bank to meet them! Gestenslager, believing he was in danger of losing his claim unless he could make it out of the crop, went to Garden City, the county seat of the county in which the crop was growing, for the purpose of bringing an attachment suit. Sakdol, who lived in Greensburg, had sent Gestenslager a telegram that Rixon and Smith would be in Garden City that night, and Sakdol would be with them. Rixon and Smith represented the bank. When Rixon and Smith arrived, they conferred with Gestenslager, and induced him to forego bringing his attachment suit, on these terms: Rixon and Smith would go out to the land, look at the crop, and if satisfied with it they would take over the crop, harvest and market it, and pay Gestenslager and the other farm laborers. The next day Rixon and Smith went to the land, inspected the crop, and were satisfied with it. They took from Sakdol a bill of sale for which they paid Sakdol fifty dollars, and proceeded to harvest and market the crop. The bank expected to profit by the transaction. Instead of that, the crop did not pay the expense of harvesting and marketing, and the bank refused to pay Gestenslager.
There was evidence in opposition to that favorable to the plaintiff, but thé court declined to submit the case to the jury on the ground the promise sued on was within the statute of frauds. The promise was an original undertaking- by the bank, made to secure possession of the crop, in order that the bank might make its claim out of the crop. Incidentally, Sakdol would be benefited by having his debts paid, but he was helpless in the matter, and in order to save itself the bank intervened. The plaintiff’s threatened attachment of the crop stood in the bank’s way, and his forbearance to sue constituted consideration for the bank’s promise. The principles of law governing the transaction are sufficiently discussed in the opinion in the case of Johnson v. Huffaker, 99 Kan. 466, 162 Pac. 1150, and in the authorities there cited.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injuries to plaintiff’s automobile, resulting from collision with trains of the defendant at a street crossing. A demurrer to the plaintiff’s evidence was sustained, and he appeals.
The street extended from east to west, and crossed six parallel railroad tracks of standard- gauge, six or eight feet apart, extending from north to south. Tracks one, two, and three, numbered from the east, were occupied by box. cars, which encroached on the street so that the way left open was but ten to twenty feet wide. These cars completely obstructed vision of trains on tracks four and five north and south of the narrow way. The plaintiff, accompanied by three other men, drove his automobile up to track one, stopped, looked, and listened, and then proceeded over the crossing, attaining a speed of five or six miles per hour by the time track three was passed. There were no cars on track four, and as the angle of vision from behind the cars on track three widened, a train was discovered on track five backing toward the crossing from the north. The plaintiff acted quickly, but was unsuccessful in shifting his gear, and was going so fast it was impossible to stop until his automobile was on track five. The occupants of the automobile jumped out, the train struck it, pushed it to the south some thirty feet, and then left it between tracks four and five. About two or three minutes later another train, backing toward the north on track four, struck the automobile and carried it some distance. There was no brakeman on the rear of either train, and no warning of the approach of either train was given.
When the plaintiff stopped to look and listen he was confronted by standing cars massed on the three tracks for long distances north and south of the street, and by a narrow way through which other tracks to be crossed were visible. Listening could give but doubtful information concerning the peril beyond the lines of cars, and looking, which was also essential, could give none at all. The lines of cars had been cut for the crossing, the cars were standing still, and there was no indication that they would be moved. So far as the plaintiff was apprised, whatever danger there might be in attempting to cross lay beyond. Under these conditions, it was important for the plaintiff to further inform himself at track three, and if he did not choose to stop there in order to use his eyes, he should have had his automobile under such control that he could stop quickly, if necessary, as soon as he could see. The rules of law governing the case have been stated so many times, it is not necessary to do so again. Applying the law to the facts, but one sound conclusion is possible, and that is, the plaintiff was guilty of negligence bordering clpsely on recklessness.
The plaintiff says that as soon as he jumped from the automobile and the south-bound car struck it, his negligence had spent its force. He could do nothing more to avert demolition of his automobile, while the employees of the defendant had time and opportunity to stop the north-bound car before the automobile was battered the second time.
The standing cars concealed the automobile from the southbound train to the same extent that they concealed the train from the automobile, and a brakeman on the rear of the train could not have discovered approach of the automobile, at the speed it was traveling, appreciably sooner than the plaintiff discovered the train. There was no evidence that the train-could have been stopped "after the automobile came in view, within the distance the train carried it. So far as the second train was concerned, the effect of the plaintiff’s initial negligence continued until the automobile was finally deposited between tracks four and five south of the crossing. The plaintiff was responsible for its presence there. None of the trainmen knew what had occurred. The crew of the northbound train had no reason to anticipate that its progress would be impeded by a wrecked and abandoned automobile lying at the place of the collision, and the automobile was in the situation of a trespasser whose presence was not known at the time of the collision. Besides that, the plaintiff’s evidence was that the tracks were straight toward the south for a longdistance, and that there was nothing to obstruct view of the movement of trains after track three was passed; yet he made no effort to give warning to the north-bound train, approaching in plain sight, within the two or three minutes which elapsed before the second collision. Under these circumstances, the doctrine of last clear chance has no application.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Bruce Brothers Grain Company to recover damages resulting to it from the failure of the defendant to stop a car of corn at Wichita for inspection. On May 25, 1918, the plaintiff purchased a car of No. 3 corn from a firm, at Valley Center, at $1.52 per bushel on destination weights and Wichita Federal inspection, the shipment to be made on the day of purchase. On that day the plaintiff sold the corn to the National Grain Company of Wichita for $1.52% per bushel, basis Valley Center, destination weights and Wichita inspection, and that company in turn sold the corn to the Hardaman-King Grain Company of Oklahoma City on the same basis, weights and grades. The car was billed direct to Oklahoma City with instructions to notify Hardaman-King Grain Company, and to have the car stopped at Wichita for inspection. The defendant issued a bill of lading to the consignor which on its face was marked “stop at Wichita for inspection.” On May 25, the shipment was started towards its destination. The bill of lading was sent to the plaintiff by the Valley Center firm, and was received by it on May 26 when it remitted the price of the corn, $1,833.21. On the same day the plaintiff turned over the bill of lading to the National Grain Company and received from it the sale price thereof, based on No. 3 corn, Wichita inspection, the plaintiff to furnish inspection certificate. The defendant failed to stop the car at Wichita for inspection but carried it on to Oklahoma City. Plaintiff’s vendee, upon learning that there had been no inspection at Wichita, made a demand upon the plaintiff that it return the amount paid for the corn, and plaintiff then tried to turn the corn back to the Valley Center firm, but it refused to accept the car or refund the money. When the corn was received at Oklahoma City it was found that it had heated and deteriorated below No. 3 and the Hardaman-King Grain Company refused to accept it. The plaintiff being unable to sell the corn because it was out of condition, had it unloaded, run through an elevator and dried. It was then sold at Oklahoma City for $1,474.11, and the defendant refusing to pay the loss, which was $374.40, plaintiff brought this action.
At the conclusion of plaintiff’s evidence the defendant demurred thereto on the ground that no cause of action was proven, but the court overruled the demurrer. The defendant stood on his demurrer and judgment was given for plaintiff in the sum of $385.66, the court holding that plaintiff’s loss resulted from the failure of the defendant to stop the car at Wichita for inspection.
It is insisted by defendant that the damage was not caused by the failure to stop the car at Wichita but did result from the heating and deterioration of the corn in transit during the month of May. It is said that plaintiff must have known that the corn was likely to germinate during transportation to Oklahoma City in that season, and that since there was no delay in transportation the defendant should not be held liable for the loss. Plaintiff’s contract with the defendant stipulated that the car was to be stopped for inspection at Wichita. It is admitted that the car was carried through Wichita without inspection. The corn was sold by plaintiff on the basis of inspection at Wichita, which was from ten to fifteen miles from Valley Center and the time of transportation between the two points was less than an hour. It was shown that the corn was in good condition when it was shipped and could not have heated or deteriorated while being carried to Wichita. An inspection at Wichita showing that the corn graded No. 3 entitled the plaintiff to close the transaction with its vendee and to collect the price at which it was sold without regard to the grade or condition of the corn when it reached Oklahoma City. On the other hand, if the inspection at Wichita had shown the corn was not in good condition and of the grade sold, plaintiff could have turned it back on the original shipper and secured the return of its money. It is reasonably clear that so far as the plaintiff is concerned, its loss is the direct result of defendant’s failure to comply with the transportation contract. With the inspection contracted for, plaintiff could have avoided loss, and the breach of the contract resulted in the loss for which judgment was given.
The case does not turn on the damage to the corn during shipment but on the loss or damage sustained by the plaintiff because of the lack of inspection. Plaintiff’s sale was made on the basis of inspection near the origin of the shipment, at Wichita, and it appears that the National Grain Company turned back the bill of lading and demanded the return of its money before it had even learned of the condition of the corn at Oklahoma City. The return was not made by reason of the condition of the corn, but because there had been no inspection at Wichita as stipulated in the contract of sale. The defendant must have known of the common practice of stopping cars for inspection and that grain shipped in that way was bought and sold on inspection and the rights of the dealers were determined by it. There was reason, therefore, for the defendant to anticipate that loss might result to some dealer because of a lack of inspection, and we think that the plaintiff’s loss was the direct and proximate result of defendant’s breach of contract.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
Despite quibbles by the parties as to its nature it may be stated that this, in reality, was an action by the plaintiff to recover from the defendant for breach of an oral contract. Neither party being satisfied with the judgment rendered by the trial court, in conformity with the general verdict of a jury, each has appealed.
Nothing would be gained by detailing the pleadings and, for present purposes, it will suffice to say they join issue on questions respecting the terms and provisions of, and the force and effect to be given, an alleged oral agreement whereby plaintiff gave defendant a check for $3,500, the proceeds of which were to be ultimately deposited in the open checking account of one Vern Newby, who was tiren a customer of the bank, for the purpose of enabling such individual to purchase cattle.
With issues joined as heretofore related, and after the court had overruled a demurrer to the petition which defendant had made a part of its answer, the cause came on for trial by a jury. During a spirited trial, covering the major portion of three days, defendant’s demurrer to plaintiff’s evidence was overruled. Thereafter, and at the close of defendant’s evidence, the trial court gave the jury written instructions. Among such instructions was instruction No. 5 which, so far as the record discloses, was unobjected to at the time of its submission and therefore became the law of the case.
The instruction just mentioned outlines in a general way the issues joined by the pleadings, as well as the theory on which the cause was tried, and is therefore of value for informative purposes. It reads:
“The Jury are instructed that in this case if the plaintiff has established by a preponderance of the evidence that the defendant bank and plaintiff entered into an agreement whereby plaintiff was to advance the $3,500.00 and the bank was to service the loan to Newby in order that Newby could buy cattle, and was to take a note and mortgage from Newby, and that plaintiff was to receive two-thirds of six percent interest to be charged on the note, and the bank was to receive one-third of the six percent interest, and that the defendant bank failed to comply with the agreement and neglected to obtain the note and mortgage from Newby, then plaintiff would be entitled to recover from the defendant bank the sum of $3,500.00, together with the full amount of six percent interest per annum from January 7, 1947.
“Should you find, however, that the agreement was that the plaintiff simply left the money at the bank to advance to Newby to buy cattle with, and that the defendant bank instead of advancing to Newby the entire amount of $3,500.00, first applied the amount of $1,747.22 to indebtedness therefore incurred by Newby by reason of the bank’s having advanced him that amount plus interest to buy cattle, then, the plaintiff if he establishes that fact by the preponderance of the evidence, would be entitled to recover from the defendant bank the portion of the $3,500.00 which was not directly advanced to Newby, or $1,747.22, with interest at six percent per annum from January 7, 1947.
“It is the contention of the defendant in this case, however, that the plaintiff left the $3,500.00 with the bank to be advanced to Newby, that the plaintiff was to bring Newby to the bank, or see that he came to the bank, in order to have a note and mortgage prepared, and that in addition that plaintiff knew that the bank had advanced money to Newby prior to the plaintiff’s leaving $3,500.00 with the bank and that those advancements by the bank to Newby were part of the same transaction for the purchase of cattle by Newby. Now, if the defendant establishes these facts in support of his contention as to the transaction, then it will be the duty of the jury to find a verdict in favor of the defendant.”
Following the giving of instructions the cause was submitted to the jury which in due time returned a verdict in favor of the plaintiff and against the defendant for the sum of $1,747.22, with interest at six percent from January 7, 1947, along with its answers to special questions submitted by the trial court. Thereupon plaintiff filed a motion for judgment on the special questions and the defendant filed a motion to set aside answers to certain special questions and a motion for a new trial. When all these motions were overruled the trial court approved the general verdict and rendered judgment. These appeals, wherein plaintiff contends he was entitled to judgment for the full amount of his claim and the defendant that plaintiff was entitled to no recovery whatsoever, followed.
Heretofore we have quoted instruction No. 5 at length, wherein the trial court specifically instructed the jury that on the basis of the evidence presented by the parties it could return one of three verdicts in the case. We have also noted that, since the record disclosed no objection thereto, such instruction became the law of the case. From what has been previously related it appears that the jury returned a verdict in exact accord with the second paragraph of such instruction, thereby rejecting the theory on which appellant based his right of recovery under the evidence (See first paragraph of instruction No. 5) and likewise rejecting the theory on which appellee and cross-appellant based its right to a verdict in its favor under the evidence. (See third paragraph of instruction No. 5.)
Notwithstanding what has been heretofore related, appellant contends the answers made to two of the special questions, which we must assume were submitted by the trial court for the purpose of clarifying whatever verdict the jury might reach on the basis of instruction No. 5 as submitted, compel a judgment on the special questions non obstante veredicto. Under the confronting facts and circumstances, since it is not contended the answers to the special questions compel a verdict on either of the other theories submitted under the foregoing instruction and it cannot be denied the jury returned a verdict in accord with the law of the case, we are inclined to the view appellant cannot be heard to say that he is entitled to judgment non obstante veredicto on a theory different from those submitted under such instruction. Even so we are not inclined to base this decision entirely upon that premise. We have examined all answers to special questions, including the two on which appellant relies, and find nothing in any of such answers which, when reviewed in the light of the entire record, warrant a conclusion that the jury found, as appellant contends, that under the evidence the $3,500.00 paid appellee by appellant (1) was to be credited to Vern Newby as a special deposit under the agreement or (2) that appellee had misappropriated the full amount of that sum in violation of its terms. So construed the special questions are consistent with each other, as well as the general verdict. If follows the trial court did not err in approving such verdict or in rendering judgment in accord therewith.
We come now to errors assigned by appellee and cross-appellant as grounds for reversal of the judgment. Having carefully examined the record, and all arguments'advanced with respect thereto, we have no difficulty whatsoever in concluding its claims that the trial court erred in overruling (1) its demurrer to the petition; (2) its demurrer to the appellant’s evidence; and (3) its motion to strike the answers to certain special questions on the ground they are not supported by evidence, lacks merit and cannot be upheld.
So far as appellee’s motion for a new trial is concerned it must be conceded there is some merit to questions it raises with respect to the admission of evidence and remarks made by the trial court ■in ruling thereon. Nevertheless, our extended examination of the record convinces us that such irregularities were technical in nature and did not prejudice appellee’s substantial rights. Therefore, under express mandate of our statute (G. S. 1949, 60-3317) and all decisions construing the force and effect to be given its terms (See Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§ 509, 583, 592, and West’s Kansas Digest, Appeal & Error, §§ 901, 1026, 1034), such irregularities must be disregarded and afford no sound basis for the granting of a new trial or reversal of the judgment.
The judgment is affirmed.
Fatzer, J., not participating.
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The opinion of the court was delivered by
Fatzer, J.:
The principal question here presented is whether the district court had jurisdiction to enjoin the defendant labor unions and their agents from peacefully picketing construction projects and general contractors who employed union labor, with an objective of forcing termination of their contracts with plaintiff who employed nonunion labor, the ultimate objective being to force plaintiff’s recognition of one of the defendants as the bargaining agent of its employees and cause it to enter into an all-union agreement without approval of a majority of its employees to be governed thereby, in violation of G. S. 1955 Supp. 44-809 (4).
Both parties introduced evidence at a hearing for a temporary injunction, at the conclusion of which, upon motion of defendants, the district court dismissed the action upon two grounds: First, that it did not have jurisdiction of the subject matter since the controversy was governed by the Labor Management Relations Act, 1947, hereafter referred to as Taft-Hartley (29 U. S. C. A. § 141, et seq.); and second, that the National Labor Relations Board (29 U. S. C. A. § 160 [a]) had exclusive jurisdiction of the controversy. Plaintiff has appealed from that ruling.
Defendant S. E. Smith was business agent for defendant Teamsters Local Union No. 795, and defendant Olin Miles was business agent for defendant Hoisting and Portable Engineers Local Union No. 101. Both defendant labor unions are affiliated with American Federation of Labor and each has a business office in Wichita.
We summarize or quote portions of the record bearing upon the question presented, as follows: Plaintiff is a Kansas corporation engaged in the business of paving parking lots and driveways with asphalt and does an annual gross business of approximately $200,000. It performs no state or municipal work. Jobs of less than $1,000 constitute seventy-five percent of its volume. Plaintiff’s mixing plant and principal office are located on North Broadway in Wichita, Sedgwick County, Kansas, where it employs ten to twelve men, none of whom belong to defendant unions or any other labor union. No controversy of any character existed between plaintiff and its employees; the relationship between them was mutually harmonious. Plaintiff performed all its work in Sedgwick County and procured all materials there or in adjoining Butler County. It purchased all its equipment within the state of Kansas, although one roller and one grader of the approximate value of $21,700 were manufactured outside the state.
Plaintiff alleged unlawful acts of combination in restraint of trade, and that various employees of general contractors were induced to strike their employment, the objective being to force the general contractors to cease doing business with plaintiff; conspiracy on the part of defendants and their agents to injure and destroy its good will, trade and business, and of irreparable damage thereto; lack of adequate remedy at law; and, that the devices and activities of defendants were in violation of the provisions of Ch. 252, Laws of Kansas 1955. (G. S. 1955 Supp. Ch. 44, Art. 8.) No pleadings were filed by the defendants.
Evidence at the hearing for a temporary injunction established, among other things, the following: In January, 1955, plaintiff was installing an asphalt parking lot for a Safeway store at Douglas and West Streets in Wichita and was forced to complete that job by using drivers who were members of defendant Teamsters Union.
Prior to July 1955 one Pearson, representing the defendant Hoisting Engineers, requested a conference with plaintiff, saying he had contacted the other trades and that they would like to sit in on the conference. At that conference, plaintiff was advised by Miles and Pearson that it would have to use union labor as long as the Union could furnish proper employees, and that it could not use nonunion labor on its small or noncommercial jobs. Plaintiff refused defendants’ demand since the larger part of its annual gross dollar volume was from small noncommercial jobs and to employ union labor would make it economically infeasible to compete in the construction business.
During October 1955 plaintiff had subcontracts with general contractors and contracts with owners of construction projects to install asphalt covering on parking lots adjacent to five buildings in the process of construction, where only union labor was employed by the general contractors. One of such contracts was with Love Box Company, an industry conceded to be subject to the jurisdiction of Taft-Hartley, where Hahner & Foreman, Inc., the general contractor, was finishing a new factory building. Hahner & Foreman did a gross annual business of $1,500,000 of which approximately $400,000 in materials was purchased in the state of Kansas but originated outside the state in interstate commerce. In addition, purchases of $16,111 were made directly from interstate points. Another contract was with Bleckley, Inc., where Weller & Boucher Construction Company, the general contractor, was constructing a medical office building. Weller & Boucher did a gross annual business of approximately $1,000,000, of which $500,000 of materials were purchased locally but originated outside the state of Kansas in interstate commerce. Another contract was with Soderberg Construction Company which was constructing a Safeway store and a retaining wall at Kellogg and Lightner Streets in Wichita. The fourth contract was with the East Side State Bank, which was having its bank building constructed by Soderberg Construction Company at Windsor and Kellogg Streets in Wichita. Of Soderberg’s $1,000,000 annual volume, $300,000 was in materials purchased locally but originated outside the state in interstate commerce. The fifth contract was with Cessna Aircraft Company, an interstate concern, by which that company was having Vollmer Construction Company, its general contractor, extend and repair an airplane hangar. Vollmer did a gross annual business of $3,700,000, and purchased locally $661,000 worth of materials originating in interstate commerce and $60,000 worth directly from interstate points outside the state of Kansas.
In an attempt to unionize plaintiff’s employees and secure an all-union agreement affecting them, the Hoisting Engineers peacefully picketed the work area at Safeway at Kellogg and Lightner Streets, and both defendants peacefully picketed the work areas at Cessna and Love Box. As a result of the picketing and because of plaintiff’s nonunion status, unionized masons, carpenters, electricians and other craftsmen employed by Hahner & Foreman, by Soderberg, and by Vollmer, walked off the jobs. Plaintiff’s plant on North Broadway was not picketed. At the other two construction areas, threats were made by agents of defendant Hoisting Engineers to Weller & Boucher and to Soderberg that unless plaintiff’s contracts were terminated, union employees of those general contractors would strike and walk off the jobs. As a result, plaintiff’s contracts were terminated at each of the five construction projects.
The testimony of Robert Love, Vice President of Love Box, illustrates the technique of defendants at that company’s work area. Love testified that Miles of Hoisting Engineers and Smith of Teamsters directed the picketing. At a conference following the strike of union employees as a result of the picketing, Smith and Miles entered into negotiations with Love and told him that as a condition for withdrawal of the pickets and resumption of work by the union employees of Hahner & Foreman, the Love Box contract with plaintiff would have to be canceled. Acceding to that pressure, Love ordered plaintiff to leave the job and called Inland Construction Company, a unionized employer, to complete the parking lot. Smith, confirmed the Inland contract, and stated he would "show” plaintiff it would do no commercial work until it "got right with the union.” Later, the pickets were withdrawn and work was resumed by union employees of Hahner & Foreman. Inland Construction Company is one of the larger foreign corporations engaged in the construction industry in Kansas and in the Middle West.
Plaintiff vigorously contends the trial court had jurisdiction over the subject matter of the controversy, asserting three grounds: First, that its business operations were so local in nature that neither its operations nor defendants’ activities affected interstate commerce within the meaning of Section 2 (29 U. S. C. A. § 152 [6] and [7]) and Section 10 (a) (29 U. S. C. A. § 160 [a]) of Taft-Hartley; second, that Section 14 (b) (29 U. S. C. A. § 164 [b]) leaves open to the states, where the union shop is prohibited or regulated, the determination of any matter bearing upon the execution or application of union security agreements, and, in such cases, the general law with respect to unlawful conduct, applies; and third, assuming, arguendo, that defendants’ activities affected interstate commerce, plaintiff need not apply to the National Labor Relations Board for relief when that board would manifestly decline jurisdiction of the controversy on the basis of jurisdictional standards adopted by it in 1954.
Two questions are. intertwined in plaintiff’s first contention of jurisdiction: (1) Were the activities of defendants an “unfair labor practice” prohibited by Section 8 (b) (29 U. S. C. A. § 158 [b]) of Taft-Hartley? (2) If they were, did those activities “affect commerce” as defined in 29 U. S. C. A. § 152 (6) and (7), so as to empower the National Labor Relations Board to prevent a continuation of the prohibited practices (29 U. S. C. A. § 160 [a])? If the record before us requires affirmative answers to both questions, we must uphold dismissal of plaintiff’s action, as related to its first jurisdictional contention.
Preliminary to discussing this phase of the controversy, we turn to what we consider established rules enunciated by the Supreme Court of the United States in its interpretation of Taft-Hartley: First, in the exercise of its constitutional authority to protect interstate commerce, Congress may regulate not merely transactions or goods in interstate commerce, but activities which in isolation might be deemed to be local and yet in the course of the interlacing of business, affect adversely interstate commerce (Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 81 L. Ed. 893, 57 S. Ct. 615, 108 A. L. R. 1352; Wickard v. Filburn, 317 U. S. 111, 87 L. Ed. 122, 63 S. Ct. 82; Polish Alliance v. Labor Board, 322 U. S. 643, 88 L. Ed. 1509, 64 S. Ct. 1196; Bethlehem Co. v. State Board, 330 U. S. 767, 91 L. Ed. 1234, 67 S. Ct. 1026); second, as explained by the Supreme Court in one of its recent cases treating congressional preemption in the labor field, “a state may not prohibit the exercise of rights which the federal act protects” (Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 99 L. Ed. 546, 75 S. Ct. 480; Hill v. Florida, 325 U. S. 538, 89 L. Ed. 1782, 65 S. Ct. 1373; Automobile Workers v. O’Brien, 339 U. S. 454, 94 L. Ed. 978, 70 S. Ct. 781; Bus Employees v. Wisconsin Board, 340 U. S. 383, 95 L. Ed. 364, 71 S. Ct. 359) nor enjoin under its own labor statute in the furtherance of its public policy, conduct which has been made an “unfair labor practice” under Section 8 (29 U. S. C. A. § 158) of Taft-Hartley (Garner v. Teamsters Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161; Plankinton Packing Co. v. Wisconsin Employment Relations Board et al, 338 U. S. 953, 94 L. Ed. 588, 70 S. Ct. 491; Weber v. AnheuserBusch, Inc., supra); third, Congress, by the enactment of TaftHartley, has regulated labor relations to the full extent of its legislative power under the commerce clause (Art. I, Sec. 8) whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces, but as to both categories, the areas that have been pre-empted by federal authority have been withdrawn from state power (Bus Employees v. Wisconsin Board, supra; Labor Board v. Fainblatt, 306 U. S. 601, 83 L. Ed. 1014, 59 S. Ct. 668; Weber v. Anheuser-Busch, Inc., supra, pp. 475, 476; Garner v. Teamsters Union, supra; Guss v. Utah Labor Board, 353 U. S. 1, 1 L. Ed. 2d 601, 77 S. Ct. 598).
On the other hand, the following cases are authority that state power has not been exclusively absorbed by Taft-Hartley with respect to conduct affecting interstate commerce, and that state courts may enjoin mass picketing, threatening employees, obstructing streets and highways, picketing homes, blocking the entrance to or egress from a factory, coercing employees who wish to refrain from striking, interfering with others approaching an area where a strike is in progress, recurrent unannounced work stoppages, enforcement of a maintenance-of-membership clause in union security agreements, and they may award damages for a common law tort based on violent conduct and enforce criminal statutes against con duct violative of them (Allen-Bradley Local v. Board, 315 U. S. 740, 86 L. Ed. 1154, 62 S. Ct. 820; Auto Workers v. Wis. Board, 336 U. S. 245, 93 L. Ed. 651, 69 S. Ct. 516; United Workers v. Laburnum Corp., 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833; Auto Workers v. Wisconsin Board, 351 U. S. 266, 100 L. Ed. 1162, 76 S. Ct. 794; Algoma Plywood Co. v. Wis. Board, 336 U. S. 301, 93 L. Ed. 691, 69 S. Ct. 584). The record here does not disclose conduct of the character to permit application of the rule announced by these authorities.
The district court found that plaintiff did not seek relief from the National Labor Relations Board prior to commencing this action; that the negotiations on July 3,1955, by Miles were for the purpose of inducing plaintiff to employ only union labor on all work except municipal construction; that plaintiff failed to establish its allegations of conspiracy; and, “that the interference by defendants with the employees of the plaintiff had a direct impact upon Interstate Commerce in that the picketing by the defendants resulted in a strike situation which caused the employees of prime (general) contractors engaged to a large extent in Interstate Commerce to leave their jobs.” It concluded that die issues involved interstate commerce and that before it could exercise jurisdiction, application should have been made by plaintiff to the National Labor Relations Board.
The district court was too euphemistic. The “negotiations,” the “strike situation” which was described, the “interference by the defendants with the employees of the plaintiff,” upon these facts, the whole situation cries out that there was a secondary boycott made unlawful by state law (G. S. 1955 Supp. 44-809a [1]) and condemned by Taft-Hartley as an unfair labor practice (29 U. S. C. Á. §§ 158 [b] [4] [A], 187 [a] [1]). The record clearly imports a secondary boycott and we construe the findings of fact as so reading.
In the background of this controversy was a standing labor dispute between defendants and plaintiff due to the latter’s employment of nonunion labor on paving jobs at or near construction sites in Wichita. Defendants do not contend that a primary dispute existed with any of the general contractors since they employed only union labor; rather, defendants’ purpose was to compel plaintiff, in the language of defendant Smith, “to get right with the union.” Thus, it was plaintiff’s employees defendants sought to unionize, and in order to attain that objective, defendants were required to secure an all-union agreement from plaintiff (G. S. 1955 Supp. 44-802 [3] [5], 44-809 [4]), which they sought to do by asserting pressure to compel it to comply with their demands, or be forced off each job. This was done by applying secondary pressure on each general contractor, or on the owners of construction projects, by peacefully picketing the work area, or by threats of concerted cessation of work by all union employees. Defendants’ conduct was a secondary boycott of which there can be no “good” variety (Sen Rep No 105, 80th Cong 1st Sess 8). It is settled that a labor union commits an unfair labor practice within the meaning of 29 U. S. C. A. §158 (b) (4) (A), which prohibits requiring an employer to cease doing business with another, where the labor union engages in peaceful picketing to induce or encourage a strike or by making threats of concerted cessation of work with the objective, although not necessarily the only one, of forcing a general contractor on a construction project to terminate a contract with a subcontractor doing work on or around that project who employs nonunion labor (Labor Board v. Denver Bldg. Council, 341 U. S. 675, 95 L. Ed. 1284, 71 S. Ct. 943; Electrical Workers v. Labor Board, 341 U. S. 694, 95 L. Ed. 1299, 71 S. Ct. 954; Carpenters Union v. Labor Board, 341 U. S. 707, 95 L. Ed. 1309, 71 S. Ct. 966). See, also, extensive annotations in 32 A. L. R. 779, 116 A. L. R. 484, 16 A. L. R. 2d 769 and 32 A. L. R. 2d 1026.
Moreover, plaintiff alleged that the object of defendants’ conduct and activities “. . . is to force the employers and owners (general contractors and owners of construction projects) ... to cease using and dealing in the products of plaintiff and to cease doing business with plaintiff . . .,” further, “. . . to force and require plaintiff to organize or bargain with said local unions as representative of plaintiff’s employees . . .,” and “. . . to refuse to employ any person who is not a member of either of said local unions . . .” These allege unfair labor practices prescribed by Taft-Hartley in at least three respects: (1) Engaging in a secondary boycott to induce general contractors and owners of construction projects to cease doing business with plaintiff in violation of 29 U. S. C. A. §§ 158 (b) (4) (A), 187 (a) (1); (2) restraining plaintiff’s employees in the exercise of rights guaranteed them by 29 U. S. C. A. § 157, to join, form or assist labor organizations, to bargain collectively and to engage in concerted activities for that purpose, or to refrain from such activities; (3) causing or attempting to cause plaintiff to discriminate against its employees in regard to terms, tenure or condition of employment by encouraging membership in defendants’ labor organizations prohibited by 29 U.S. C.A. §158 (b) (2) and (a) (3).
When an action is commenced in a state court involving a labor controversy and the district court’s jurisdiction is denied, the court must determine that question for itself. It cannot stop the proceedings and refer the matter to the National Labor Relations Board; nor will a federal court interfere to forestall the state court’s determination of jurisdiction at the behest of a private litigant (Clothing Workers v. Richman Bros., 348 U. S. 511, 99 L. Ed. 600, 75 S. Ct. 452). However, a state court should, in deference to the National Labor Relations Board, decline jurisdiction of an action for injunctive relief, where the plaintif itself alleges unfair labor practices, and the facts alleged reasonably bring the controversy within the sections of Taft-Hartley prohibiting those practices, and where the conduct, if not prohibited by the federal act, may be reasonably deemed to come within the protection afforded by that act (Weber v. Anheuser-Busch, Inc., supra; Garner v. Teamsters Union, supra; Amalgamated Meat Cutters, Etc. v. Johnson, 178 Kan. 405, 419, 286 P. 2d 182; Kaw Raving Co. v. International Union of Operating Engineers, 178 Kan. 467, 475, 290 P. 2d 110).
In view of the record presented and the allegations made by plaintiff, we conclude the defendants were engaged in a secondary boycott made unlawful by the laws of Kansas (G. S. 1955 Supp. 44-809a [1]), but which also constituted unfair labor practices under 29 U. S. C.A. § 158 (b), and since Taft-Hartley contains complete administrative and judicial remedies to prevent a continuation of them, provided, of course, they affected interstate commerce, the district court lacked jurisdiction to issue an injunction. As indicated previously, a state may not enjoin under its own labor statute conduct which has been made an “unfair labor practice” under Section 8 (29 U. S. C. A. §158) of Taft-Hartley, since the National Labor Relations Board has primary exclusive jurisdiction (Garner v. Teamsters Union, supra; Weber v. Anheuser-Busch, Inc., supra; Guss v. Utah Labor Board, supra; Amalgamated Meat Cutters, Etc. v. Johnson, supra; Texas Const. Co. v. H. & P. E. Local Union No. 101, 178 Kan. 422, 286 P. 2d 160; Kaw Paving Co. V. International Union of Operating Engineers, supra; City Motors v. In ternational Ass’n of Machinists, Lodge No. 778 A. F. of L., 179 Kan. 157, 292 P. 2d 1102).
Thus, we approach a crucial question in this controversy— whether defendants’ unfair labor practices “affected commerce,” and we refer to Taft-Hartley for a concept of the extent to which that term implies. “Commerce” means, according to 29 U. S. C. A. § 152 (6) “trade, traffic, commerce, transportation or communication among the several states.” The term “affecting commerce,” defined in subsection (7), means “in commerce, or burdening or obstructing; commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” (Emphasis supplied.)
Preliminary to considering this point, we refer to an annotation in 16 A. L. R. 2d 775 dealing with the question whether local construction work affects interstate commerce, where it was said:
“More cases involving the secondary boycott ban of the Taft-Hartley Act have arisen in the building and construction industry than in any other. This is perhaps due to the close co-operation which exists between the various craft unions in the building trades and to the traditional reluctance of such members to work with nonunion men. Up to the enactment of the Taft-Hartley Act, no serious effort was made to include local construction within the purview of the National Labor Relations Act, but it has been the policy since that time to include all forms of local construction within the Act.”
“The courts have looked beyond the purely local nature of the work done and the dispute involved, in cases involving building trades unions and local construction work, and have concluded that the unfair labor practice provisions of the Taft-Hartley Act are applicable because of the likelihood that interstate commerce would be adversely affected if everyone took the same position as that of the union involved in the particular case.”
Whether defendants’ activities were such as to permit the National Labor Relations Board “to prevent any person from engaging in any unfair labor practice . . . affecting commerce” (29 U. S. C. A. § 160 [a], became, under the record in this case, a question of fact, which was answered by the district court in the affirmative. Our task is not to determine whether we would have reached the same conclusion as did the district court, but rather, to ascertain whether there was substantial evidence to sustain the findings made, and in so doing, review all evidence in the light most favorable to. the prevailing party below (Evans v. Board of Education of Hays, 178 Kan. 275, 284 P. 2d 1068; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106). Numerous decisions of like import will be found in 1 Hatcher’s Kansas Digest (Rev. Ed.) § 507, p. 206.
The precise question of conduct “affecting commerce” as a question of fact was not determined in our former decisions involving labor litigation. In Amalgamated Meat Cutters, Etc. v. Johnson, supra, the fact of interstate commerce was not disputed. In the same posture is Kaw Facing Co. c. International Union of Operating Engineers, supra. The question again, seems not to have been contested in Texas Const. Co. v. H. & P. E. Local Union 101, supra, nor in City Motors c. International Ass’n of Machinists, Lodge No. 778, A. F. of L., supra. It is finally in the instant case that we are required to ascertain whether defendants’ unfair labor practices affected commerce within the meaning, of 29 U. S. C. A. §§ 152 (6) and (7), and 160 (a). We specifically decline, in answer to the question presented, to decide this case on the basis, for example, that if any one of the general contractors were engaged in interstate commerce it would follow that defendants’ activities likewise affected commerce, or that we could not so hold because the operations of the ultimate victim, i. e., Asphalt Paving Company, were so essentially local in character that they would preclude such a finding.
Ry not looking solely to plaintiff’s business operations nor to those of any one of the general contractors against whom the secondary pressure was applied, but rather, casting our regard upon a combination of plaintiff’s operations and the total business of all the general contractors, there was substantial evidence that defendants’ unfair labor practices affected commerce. As an integral part of this conclusion, however, we enter our caveat that a reversal would not necessarily follow because a district court found otherwise upon the same or similar facts, nor necessarily, would a case analogous in its outlines be controlled by this conclusion as a matter of stare decisis. On the contrary, we treat the matter of an interstate flow of commerce and the existence of a burden upon it as one of fact, and review the record to determine whether substantial evidence supports the findings, measured by decisions construing TaftHartley in that respect.
Although the business of plaintiff was essentially local in character, other businesses were necessarily affected, some of which were conceded to be interstate in character, and we think the totality of the situation should be considered in measuring the commerce impact, both that which resulted from the secondary boycott and that which was likely to result, rather than to view the activities of plaintiff and each general contractor separately (Polish Alliance v. Labor Board, supra; Labor Board v. Denver Bldg. Council, supra; Joliet Contractors Ass’n v. National Labor Relations Bd., 193 F. 2d 833; McAllister Transfer, Inc., 110 NLRB 1769 (1954), CCH Lab. Law Rep. ¶ 52,513; Sand Door and Plywood Co., 113 NLRB 1210 (1955), CCH Lab. Law Rep. f 53,166). Had the general contractors and owners of construction projects refused to accede to defendants’ demands, union employees who struck their employment would not have returned to work and those who threatened to do so, would have stopped work. Substantial construction work would have immediately ceased which might well have resulted in a decrease in the inflow of building materals and supplies from out-of-state manufacturers to local retailers and thence to the general contractors affected. The testimony concerning the dollar volume of business done by the general contractors and other business concerns showed that the general contractors performed construction services valued at several million dollars annually and that they purchased materials and supplies amounting to hundreds of thousands of dollars which indirectly crossed state lines and, in addition, made direct purchases of over $76,000 in interstate commerce. We think the record fairly presents that a business such as plaintiff’s, although concededly local in character, cannot be considered as totally unconnected with interstate commerce, at least in a setting of a secondary boycott as here presented. Furthermore, it is credible that defendants’ activities, if “left unchecked,” would affect and burden interstate commerce in the truest sense of the word.
Moreover, decisions of federal courts universally hold that an employer may be subject to Taft-Hartley although not himself engaged in interstate commerce, where strikes and labor disputes necessarily result in the cessation of the movement of products and materials in interstate commerce (Labor Board v. Fainblatt, supra; Labor Board v. Jones & Laughlin Steel Corp., supra; Labor Board v. Freuhauf Co., 301 U. S. 49, 81 L. Ed. 918, 57 S. Ct. 642, 108 A. L. R. 1372; Labor Board v. Clothing Co., 301 U. S. 58, 81 L. Ed. 921, 57 S. Ct. 645, 108 A. L. R. 1375; Santa Cruz Co. v. Labor Board, 303 U. S. 453, 463, et seq., 82 L. Ed. 954, 58 S. Ct. 656; Joliet Contractors Ass’n v. National Labor Relations Bd., supra). Nor do we think it important, as plaintiff contends, that the volume of inter state business affected by defendants’ prohibited activities, though substantial, was relatively small as compared with that of cases before the National Labor Relations Hoard involving large interstate concerns. Furthermore, the maxim de minimis non curat lex does not require that the National Labor Relations Board refuse to take jurisdiction of the instant case (Labor Board v. Denver Bldg. Council, supra; Joliet Contractors Ass’n v. National Labor Relations Bd., supra). As stated by Mr. Justice Jackson in U. S. v. Womens Sportswear Assn., 336 U. S. 460, 464, 93 L. Ed. 805, 69 S. Ct. 714,
“. . . The source of the restraint may be intrastate, as the making of a contract or combination usually is; the application of the restraint may be intrastate, as it often is; but neither matters if the necessary effect is to stifle or restrain commerce among the states. If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” (Emphasis supplied.)
What effect did it have on this controversy that defendants’ ultimate purpose was to wrest from plaintiff, or destroy its business, an all-union agreement requiring membership in a labor organization as a condition of continued employment (G. S. 1955 Supp. 44-802 [5]), regardless of the wishes of, or an election conducted among, plaintiff’s employees, in violation of G. S. 1955 Supp. 44-809 (4)? This states plaintiff’s second jurisdictional contention.
Plaintiff asserts the district court had jurisdiction to issue the injunction and argues that Congress, by the enactment of § 14 (b) (29 U. S. C. A. § 164 [b]), granted the states power to prohibit or regulate compulsory union agreements, or to restate the contention, immunized against federal jurisdiction in that area, and as a result, states are free to impose their own more restrictive policies affecting union security agreements; that as a necessary incident to the full exercise of that power, states may enjoin conduct directed toward the illegal execution or application of such agreements in violation of state law; and, that § 14 (b) is the express declaration of Congress that nothing contained in other provisions of Taft-Hartley shall prevent the states from fully asserting the power granted them by that section. Further, that although defendants engaged in conduct definable as unfair labor practices under § 8 (29 U. S. C. A. § 158), the picketing and threats were directed toward the ultimate purpose of securing the execution of an all-union agreement in violation of G. S. 1955 Supp. 44-809 ( 4) and since, under § 14 (b), Kansas was granted jurisdiction to restrain conduct surrounding such illegal purpose, the federal board did not have exclusive jurisdiction of the matter; consequently, no question of cession under § 10 (a) (29 U. S. C. A. § 160 [a]) arose, and the district court had jurisdiction to issue the injunction. Plaintiff cites and principally relies upon Algoma Plywood Co. v. Wis. Board, 336 U. S. 301, 93 L. Ed. 691, 69 S. Ct. 584 in support of its contention.
It would appear there is substantial merit in plaintiff’s assertion were it not for the decisions of the Supreme Court of the United States in Meat Cutters v. Fairlawn Meats, 353 U. S. 20, 1 L. Ed. 2d 613, 77 S. Ct. 604; San Diego Unions v. Garmon, 353 U. S. 26, 1 L. Ed. 2d 618, 77 S. Ct. 607, and Electrical Workers Local Union v. Farnsworth & Chambers Co., 353 U. S. 969, 1 L. Ed. 2d 1133, 77 S. Ct. 1056, which hold in effect that conduct of a labor organization not representing a majority of his employees to compel an employer to agree to a union shop contract, is conduct of which Taft-Hartley takes hold, and that a state cannot afford a remedy parallel to the provisions in that act. As we read those opinions they do not reflect to what extent consideration was given, if any, to the effect of § 14 (b), particularly since that section was not referred to in any of them.
Section 14 (b) reads:
“Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” (Emphasis supplied.)
The record before us indicates that the defendants’ activities were directed toward the ultimate purpose of securing the execution of an all-union agreement in violation of G. S. 1955 Supp. 44-802 (5), 44-809 (4), and that such conduct was definable as an unfair labor practice affecting commerce under Taft-Hartley.
The opinions above referred to, particularly Fairlawn, supra, require us to hold that a district court lacks jurisdiction to enjoin conduct of a labor union directed toward the ultimate purpose of compelling an employer engaged in interstate commerce to enter into an all-union agreement in violation of G. S; 1955 Supp. 44-802 ( 5), 44-809 ( 4) when such conduct constitutes unfair labor practices under § 8 (b) (29 U. S. C. A. § 158 [b] [2], [4] [A]) absent a cession agreement with the National Labor Relations Board pursuant to the proviso to § 10 (a) (29 U. S. C. A. § 160 [a]).
Plaintiff’s third jurisdictional point is that it would have been futile for it to apply to the National Labor Relations Board when that board obviously would have declined jurisdiction under its announced standards; consequently, the district court was “reinvested” with jurisdiction to issue the injunction. This contention lacks merit.
Beginning with Guss v. Utah Labor Board, supra, and followed by Meat Cutters v. Fairlawn Meats, supra, and San Diego Unions v. Garmon, supra, the Supreme Court has held that even though it is obvious the National Labor Relations Board would decline jurisdiction of a labor controversy pursuant to its jurisdictional standards, or that it has actually done so, a state court lacks power to enjoin a labor union, not representing a majority of the employees, from exerting pressure upon an employer engaged in interstate commerce to compel him to recognize it as the bargaining agent of the employees and to enter into a union shop agreement. In arriving at that holding, the Supreme Court concluded that Congress, by the enactment of Taft-Hartley, intended to minimize the obstructions to interstate commerce created by industrial strife, and dispel the confusion resulting from dispersion of authority; that Congress established a single, paramount administrative or quasi judicial board and granted it comprehensive power to remedy activities defined as unfair labor practices. Further, that § 10 (a) (29 U. S. C. A. § 160 [a]) is the only means by which the National Labor Relations Board may cede jurisdiction to state authority over any case in any industry, and in the absence of such an agreement, notwithstanding a declination of jurisdiction by the federal board, state labor agencies and state courts are without jurisdiction to invoke remedies provided by Taft-Hartley or state law.
We do not assume that had this controversy been submitted to it, the National Labor Relations Board would have declined jurisdiction in view of the presence of the secondary boycott (29 U. S. C. A. § 160 [1]), although, if its decision was made pursuant to its announced jurisdiction policies, it would obviously have declined jurisdiction. Be that as it may, it is clear that the district court did not have jurisdiction to issue the injunction in either event. (Guss v. Utah Labor Board, supra; Meat Cutters v. Fairlawn Meats, supra; San Diego Unions v. Garmon, supra.)
Notwithstanding the presence of great degrees of local concern in this controversy, there was substantial evidence to support the finding that the issues affected interstate commerce, and we con- elude, as previously indicated, defendants’ activities constituted unfair labor practices under §8 (b) (29 U. S. C. A. §158 [b] [2], [4] [A]), and that the National Labor Relations Board had exclusive primary jurisdiction to prevent their continuation; hence, the district court lacked jurisdiction to issue the injunction, particularly since plaintiff itself alleged unfair labor practices affecting interstate commerce.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
An extended motion for a-rehearing filed by the defendants criticises the opinion modifying the one first filed, in respect to the homestead question. •
Upon full consideration the only change deemed requisite is the elimination of the statement in the last opinion that since the 105th Illinois, McMahill et al. v. McMahill, (105 Ill. 596), has been the law and rule of property in that state. Counsel have discovered that after having followed that decision until 1907, the Illinois supreme court departed from it in Colbert v. Rings, 231 Ill. 404. But, aside from this, under our peculiar constitutional and statutory homestead provisions, the rule established by our former decisions and set forth in the last opinion herein is one from which we do not feel justified in departing. The statement referred to may be considered withdrawn.
The motion is denied.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover upon a contract by which the defendant’s daughter had entered its school for the year beginning September, 1916, and ending June, 1917, claiming an unpaid balance due of $330. The second cause of action was for alleged extras furnished in the sum of $30.20. The defendant denied entering into the contract as alleged, and averred that if any was made it was void under the statute of frauds, and denied the correctness of the account set out in the second cause of action, but admitted the payment of $430.
It seems that the school catalogue provided among other things that pupils, unless entered with written agreement to the contrary, were received only-for the full school year or such part as remained after their entrance—
“And are accepted with the understanding that parent or guardian is financially responsible for full payment for the full year or such part as remains after entrance.”
The application for entrance covered the school year at $760, including extras — piano, harmony (twenty-five lessons) and physical education. The principal wrote the defendant’s wife:
“Under the list of extras you will notice that private lessons in Harmony, one lesson per week, is $25.00 per term of 25 lessons, . Therefore with the two extras in addition to piano, the price for board and tuition for the year would be $760.00, ...”
The founder, president and principal of the school testified that she did not know any cause or reason why the pupil failed to return after the Christmas holidays. Her secretary wrote to the defendant and his wife in October that the music teacher had been giving the pupil private lessons in harmony, as it seemed there had been no class in harmony formed for that year—
“In talking it over with Mr. Moll, however, he assures us that it will be necessary for Marion to have full lessons in harmony to graduate, and I feel very sure that you will not object to the extra charge for this. Mr. Moll’s charge per lesson is $3.00, and as we do not know just how many lessons it will take to give her the required amount of harmony, that is, whether it will take all or part of the second semester, perhaps the better way would be to make the charge for these lessons as they are taken. In Marion’s contract, $25.00 was allowed for the class harmony, so, this amount stands to her credit, and we will charge the harmony lessons against this amount.”
In reply the mother wrote that she had inferred there would be a class in harmony, or her money would not have been accepted; that she was afraid music, which she desired to be the principal work, was being sacrificed for the literary work, and from what she could read between- the lines in her daughter’s letters the mother concluded music hours were not regular and were being shortened to give time for other things. Further, that she and her husband were not quite satisfied that the daughter was receiving the benefit from her work they had hoped for, and were undecided whether she would continue for the second semester or not. The pupil testified that she was enrolled for a course in harmony, but that she had no class lessons in harmony, but on the other hand was required to take private lessons in the course and to pay $3 a piece for them.
The head of the school testified that she furnished the extras sued for in the second cause of action, “some of them being by her request,” and acted on her own judgment because she had charge of the child’s education, but did not consult the father, who signed the contract, and that the charges were reasonable.
The defendant recovered in the action, and the plaintiff appeals, assigning as error the sustaining of the demurrer to the evidence on the second cause of action, the giving of improper instructions to. the jury, and the denying of a new trial.
It is asserted that the witnesses for the plaintiff testified that items set out in the second cause of action were just and reasonable, but as the correspondence shows no contract for these extras, the court properly sustained the demurrer to this evidence.
Complaint is made that the jury were charged four different times that before they could find for the plaintiff it was necessary to find that the application was received and accepted in writing. The abstract shows that the jury were thus charged twice inferentially and once directly, but counsel for the defendant say this was harmless error because the evidence showed that the plaintiff did not perform its agreement, and this was the important issue in the case.
The reception of the pupil pursuant to the written application was entirely sufficient without acceptance in writing, and was just as valid and binding as any written acceptance would have been.
The jury were also instructed that if they found and believed from the evidence—
“That the plaintiff has not performed all the terms and conditions of the contract in question, . . . your verdict and finding should be for the defendant.”
From the scattered items of evidence found in the abstracts the jury seem to have been well .justified in concluding that the services desired and contracted for were not performed. It is quite plain that the daughter was sent to the plaintiff’s school for instruction in piano and harmony for a school year, for which $760 was to be paid, and that piano and harmony were the subjects least taught her. Quite naturally, therefore, the mother, after so intimating and advising the president, took her daughter out. Usually a general verdict for the defendant is equivalent to a finding against the plaintiff on all the issues necessary to his recovery. (Bixby v. Bailey, 11 Kan. 359; Martin v. Hoffman, 77 Kan. 185, 93 Pac. 625; Barrett v. Dessy, 78 Kan. 642, 97 Pac. 786.) As the evidence showed a payment of $430 on account of tuition, and no disposition to withhold the remainder for any reason except failure to teach the desired subjects, it is hardly possible that the instruction so misled the jury as to cause them to base their verdict on failure to accept the contract in writing.
There was apparently no question at the trial as to a written acceptance, but the testimony was practically all addressed to the question of providing the instruction contracted for. Hence, there is no just ground for holding that the wrong instruction was the cause of the plaintiff’s failure to prevail, and in view of all the facts and circumstances shown by the record, we are constrained to hold the error in this respect harmless.
The judgment is affirmed.
Porter, J., dissents.
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The opinion of the court was delivered by
Burch, J.:
The notice of appeal includes two appeals under the above title. The first presents for review proceedings culminating in dismissal of an action without judgment on the merits. The second presents for review an order sustaining a demurrer to a second petition for the same relief.
The action was one to contest a will. The judge of the district court was disqualified, and the judge of another district was called to hear the case. On May 5 the case was set for trial on May 23, and all parties were notified. On May 23 the judge pro tem. appeared, called the case, and the defendants announced themselves ready for trial. The plaintiffs were not ready, and asked for a continuance, which was denied. Thereupon the plaintiffs dismissed the action. On the next day the plaintiffs refiled their suit. On July 5 the plaintiffs filed a motion to reinstate their former case, which was heard and denied in September.
Any error committed in denying the continuance was waived by the voluntary dismissal and commencement of the second action.
The evidence offered at the hearing of the motion to reinstate was directed to the situation at the time continuance was refused, and was conflicting. The motion was heard by the judge pro tern., and his determination of the matter is conclusive. The claim that the case was irregularly called for trial is not sustained, and nothing else approaching abuse of discre - tion is disclosed.
The appeal from the ruling sustaining a demurrer to the second petition is not argued, presumably because the subject is covered by the decision in the case of Medill v. Snyder, 71 Kan. 590, 81 Pac. 216.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
These cases involve the validity of the statute providing for the improvement of country roads, and also of proceedings taken under the statute. In each of the cases the court sustained a demurrer to plaintiffs’ petition, thereby upholding the validity of the statute and the proceedings taken under it, and from these rulings plaintiffs appeal.
The plaintiffs attacked the validity of the statute upon many grounds, but their contentions were fully considered, and rejected, in The State, ex rel., v. Raub, 106 Kan. 196, 186 Pac. 989. Having these cases in mind, which were pending when the Raub case was submitted, counsel for plaintiffs obtained permission and filed briefs as friends of the court in that case, and then earnestly contended that the statute was violative of the state and federal constitutions upon grounds that are again urged in these cases. We see no reason for disturbing the conclusions reached in that case, nor any occasion for further comment upon the questions involved.
In the Fegett appeal a question is raised that was not determined in the earlier case. In the second count of their petition, wherein plaintiffs charged that the signatures to the petition for the highway were obtained by fraudulent representations of those circulating them, they asked that their names be stricken from the petition, and, if stricken, there would be a lack of the number required by statute, and hence they prayed that the defendant board be enjoined from letting the contract or taking further steps towards the construction of the road. The allegations in more detail were to the effect that those circulating the petitions represented that the cost of the road would not exceed $22,000 per mile, of which sum the federal government would furnish $10,000 towards the construction of the road, when they knew that by reason of the price of material necessary to the construction of the road, the cost would be approximately $50,000 per mile. It was averred that these representations were made to induce plaintiffs to sign the petitions, and that they, relying on the representations made, attached their signatures to the petition. There is a further allegation that one Harry Tidd, who was active in procuring the circulating and signing of the petitions, represented certain brick manufacturers, and that he joined in the representations that were made to the plaintiffs, knowing that the road would cost a sum much greater than was represented, and that this was done to create a market for brick the companies represented by him desired to sell.
It may be stated that the petitions were presented under chapter 265, of the Laws of 1917. The board of county commissioners did not act upon the petition until May 9, 1918, at which time it found the petitions to be sufficient, and the proposed road was declared to be a public utility. No action was taken by the plaintiffs to contest the validity of the proceedings until this action was brought on October 1, 1919.
The sufficiency of the petition which asked that the plaintiffs’ names be stricken from the road petitions, was challenged on the ground that a limitation in the statute barred a withdrawal of the names of petitioners. The act under which the petitions were filed provides that “after the filing of a petition with the board of commissioners no signer thereon shall be permitted to withdraw his name therefrom.” (Laws 1917, ch. 265, § 1.) This provision was amended so that a withdrawal is now per-, mitted within thirty days after the filing of the petition, if the board has not before that time acted upon it. (Laws 1919, ch. 246, § 1; Heidel v; Geary County, 106 Kan. 382, 187 Pac. 866.) The statute of 1917 was'in force when the petitions herein were filed, and by the rule of that act the right of plaintiffs to secure a withdrawal of their names must be determined. It is contended by plaintiffs that the statutory limitation of the right of petitioners to have their names withdrawn or stricken from the petition, is not a bar where there is fraud in procuring their signatures. They say that fraud vitiates everything that it touches, and therefore we should read into the statutory limitation an exception as to matters of fraud.
Assuming for the time being that the charges alleged' amount to fraud, is the court warranted in enlarging the statute by putting this exception into it? The legislature evi dently anticipated that contentions might arise as to the necessity and expediency of improving highways, and that persons who had signed a petition and initiated proceedings might be induced by arguments and reasons, good and bad, advanced by contending parties, to withdraw their signatures and thereby delay or interfere with a proposed improvement, and providently prescribed the limitation upon withdrawal. Considerable time is necessarily occupied in the initiatory steps required to be taken before an improvement is begun. Much expense may be incurred in the preliminary proceedings, such as the making of surveys of the road, maps and profiles of the benefit district, plans and specifications of the improvements, estimates of the cost, alterations and widening of established roads, the establishing of those not laid out, the purchase or condemnation of additional lands that may be needed, the advertising for bids and the letting of contracts. To avoid unnecessary delay in providing an essential public utility, and to prevent the useless waste of money and effort that might result from a change of mind of petitioners, after the approval of the petition and the inauguration of the work, the legislature, in effect, said to the petitioners, if for any reason you are disposed to change your minds and ask that your names be stricken from the petition, it must be done within the prescribed time. The limitation is quite similar in purpose and effect to the special limitation prescribed in respect to challenging the regularity and legality of preliminary steps taken towards the making of improvements of city streets. There was a provision that a suit questioning the validity of an assessment or of the preliminary proceedings in such cases, could not be brought after the expiration of thirty days from the date the assessment for the improvement was ascertained. In a case where the legality of the petition of property owners Ayas in question and the rule of the limitation was invoked, the court held that it was.competent for the legislature to prescribe such a limitation, and that the act was not unconstitutional on account of the restriction as to the time when the question of invalidity could be raised. (Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068.)
In a later case, where it was charged that members of the . city council had a pecuniary interest in the contract for the improvement and that there was fraud in the letting of it, the court held that the limitation applied to fraud the same as to other claims of illegality. (City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82.)
In another case, where the validity of the petition, upon which the improvement was ordered was challenged, it was held that the limitation “applies and cuts off defenses that the improvement proceedings are void by reason of fraud or other defects.” (Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299.)
In a petition for a rehearing of the Rockwell case, the fact that fraud had been practiced in obtaining the petitions was strongly pressed upon the attention of the court, and they contended, as is done here, that where signatures are obtained by fraud an exception should be read into the statute, but the contention was again rejected, the court saying:
“If fraud was practiced and this had been brought to the attention of the council, it would have held the petition to be invalid and have rejected it. The council, however, passed on a petition which appeared to be sufficient, and held not only that it contained a sufficient number of legal petitioners, but that it was valid and sufficient in all other respects. The legislature has provided that interested parties can not attack the sufficiency and validity of any proceding in making an assessment after the expiration of the thirty-day limitation. This limitation applies whether the defect is a slight irregularity, a lack of sufficient signers to the petition, or because of fraud in obtaining them.” (Rockwell v. Junction City, 93 Kan. 1. 3, 142 Pac. 268.)
And in Park Association v. City of Hutchinson, 102 Kan. 488, 171 Pac. 2, where the limitation was under consideration, it was held that it applies to every defect in the proceedings, whether it be an irregularity or invalidity, and in support of the policy and validity of the limitation, it was said:
“The intention of the legislature was, that public improvements should not be long delayed by contests of this character, nor the assessment proceedings interrupted by belated litigation; and so, property owners who propose to challenge an assessment for any kind of defect are required to do so promptly, or not at all. The validity of such a law is beyond question.” (p. 491.)
(See, also, Railroad Co. v. Kansas City, 73 Kan. 571, 85 Pac. 603; Kansas City v. McGrew, 78 Kan. 335, 96 Pac. 484; Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Arment v. Dodge City, 97 Kan. 94, 154 Pac. 219; Wyandotte County v. Haskell, 97 Kan. 304, 154 Pac. 1029.)
The rule declared in the cited cases is, we think, applicable to the analogous provision limiting the time in which the names of the signers may be withdrawn or stricken from road petitions.
While this view practically disposes of the case, it may not be amiss to add that the facts recited in plaintiffs’ petition hardly amount to actionable fraud. The statements of those circulating the petitions as to the cost of the road were no more than representations or matters of opinion. As all know, the World War was on, and prices of road material and labor were rapidly advancing. What the prices would be when the preliminary proceedings were completed and the time of letting the contracts would be reached, no one could tell. Ordinarily no one has a right to rely on mere expressions of opinion. (Else v. Freeman, 72 Kan. 666, 83 Pac. 409; Woods v. Nicholas, 92 Kan. 258, 140 Pac. 862; Subke v. Gonder, 97 Kan. 414, 155 Pac. 793; Mathews v. Hogueland, 98 Kan. 342, 157 Pac. 1179; Note, 35 L. R. A. 436.) And a representation as to what may occur in the future or as to future values, prices or profits is mere matter of opinion. (Note, 35 L. R. A. 437; Note, 37 L. R. A. 607.) Again, the signers of the petitions had the same means of information as those who circulated them. The sources of information as to future prices and cost were equally open to both classes and, under the circumstances, neither had a right to rely on the statements of the other as to cost of construction. Likewise, the amount which the Federal government would contribute towards the construction of country roads was fixed by a public regulation available alike to everyone who chose to inquire. The signers of the petition could not shut their eyes and ears as to public laws and rules or matters of general information, and be heard to say that the facts had been unlawfully stated or withheld from them by the circulators. In Fox v. The Allensville, Center Square, and Vevay Turnpike Co., 46 Ind. 31, -it was claimed by plaintiff that false representations had-been made to him by a solicitor for subscriptions to be used towards the building of a road, that the road would be constructed in a ■particular manner, which was not done, and by reason of the false representations on which he relied he made the subscription. It was held that he had no right to rely on the representations, as the manner of construction was to be determined by directors at some future time as they might deem expedient.
Since the representations made to plaintiffs related to matters which were as much within their knowledge as of the circulators of the petitions, and as the information was equally available to them upon inquiry, they are chargeable with knowledge of all that they might have learned by inquiry, both as to prices and as to Federal aid. There are certain well-recognized exceptions to this rule, but none of them are applicable to the circumstances of this case. (Smith on the Law of Fraud, §§ 75, 126; 12 R. C. L. 380; Note, 37 L. R. A. 597.)
In respect to the allegation that Harry Tidd, who joined in soliciting petitioners, and who it is said was an agent of certain brick companies which desired to sell brick for the construction of the road, if it was ordered, it may be said that no one had any assurance that the road would be built of brick in case the improvement was made. The petition recited that it was to be constructed of concrete, or brick on a concrete base. The board of county commissioners had the authority to determine of what material the road would be constructed, and there is no hint that the commissioners were in collusion with the brick companies, no averment of their purpose to select brick as building material, and no imputation against their good faith in the matter. If the representations were made by Tidd, as we must assume, the plaintiffs had no right to rely on them, because neither Tidd nor the petitioners could know whether brick would be adopted and used in the construction.
No error was committed in sustaining the demurrer to plaintiffs’ petition, and in each case the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
These are original proceedings in quo warranto to forfeit the offices of the mayor and police judge of the city of Parsons.
The state charged Mayor P. T. Foley with willful misconduct in office and neglect of duty, in that he failed to notify the county attorney of violations of the prohibitory law of which he had knowledge, that he sanctioned a system of fines on violators of that law for the mere purpose of raising revenue for the city, that he personally profited from contracts awarded by the city for official city printing, and that he overdrew his official salary.
The first two of these charges were also directed against Police Judge F. N. Boyd.
The evidence to support the charges against these officials was presented as one case, so far as applicable, before Honorable Thomas Harley, of Lawrence, specially commissioned by this court with authority to hear the evidence, and to make findings of fact and conclusions of law. Commissioner Harley’s findings in the Foley case read:
“FINDINGS OF FACT.
“I. That said P. T. Foley is now and has been ever since the first of January, 1919, the duly elected, qualified, and acting mayor of the city of Parsons, Labette county, Kansas. That said city of Parsons is a city of the first class, with a population of approximately 18,000, and adopted the commission form of government in 1910.
“II. That the’ Parsons Daily Eclipse, of which C. A. Lamb is the owner, editor, and publisher, was, on or about the first day of March, 1919, made the official city paper of the city of Parsons and has been such official city paper at all times since that date. And as such official paper, has published all the official notices and ordinances required by law to be published since that date in an official city paper.
“III. That neither said defendant, P. T. Foley, nor the Foley Railway Printing Company has had anything to do with the printing of such official publications as are required to be published in an official city paper, nor have they, or either of them, derived any profit therefrom.
“IV. That on or about the - day of January, 1919, one F. W. Frye, who wasvthe city clerk of said city, was designated by the city as its purchasing agent and since said date has made all the contracts for job printing for said city of Parsons.
“V. That said F. W. Frye, as said purchasing agent for said city of Parsons, ordered from time to time from said C. A. Lamb certain forms, blanks and other printing, and the said C. A. Lamb presented bills to the city of Parsons, Kan., for the same, which bills were allowed and warrants drawn on the treasurer in payment thereof. Said warrants were drawn to the order of said C. A. Lamb, and with one or two exceptions were endorsed by him and delivered to the Foley Railway Printing Company and by said company credited on the account of the said C. A. Lamb. Practically all the forms, blanks, and job printing for which warrants were issued was done by the Foley Railway Printing Company, which had been doing that class of work for Mr. Lamb for a number of years. That in each instance the Foley.Railway Printing Company charged the personal account of the said C. A. Lamb for said forms, blanks or job printing from the city. But it was understood and agreed between the said C. A. Lamb and the said Foley Railway Printing Company that when said C. A. Lamb paid his account in full he was to have a discount on the entire bill of fifteen (15) per cent, the same being the estimated profit on the business.
“VI. The Foley Railway Printing Company is a corporation organized under the laws of this state with a capital stock of $10,000 divided into 100 shares with a par value of $100 each. Originally said P. T. Foley was the owner of 95 shares of said stock. Sometime, on or about the first day of January, 1919, said P. T. Foley gave to his wife all the shares of stock owned by him in said printing company and severed his connection with said company and ceased to have or take any interest in said company, except such an interest as a husband would naturally have or take in a property in which his wife owned a controlling interest.
“VII. Said P. T. Foley was the publisher and owner of the Parsons Republican between the dates of January 1, 1919, and October 13, 1919. That between said dates bills and claims from every source owned by said Parsons Republican were paid by the Foley Railway Printing Company, and an account was kept in the books of said printing company showing the amount due from said Parsons Republican. That during the dates last mentioned there had been no payment made on said account and no payment had been demanded by the Printing Company or tendered by Mr. Foley to said Printing Company.
“VIII. Said P. T. Foley during all the time that he has been mayor of the city of Parsons has, together with the other officers of said city, vigorously enforced all the ordinances of said city, including those relating to intoxicating liquors. That during the term of office of said P. T. Foley a number of complaints were filed in the police court of said city in which persons were charged with illegally having intoxicating liquors in their possession, under an ordinance passed by said city following what is commonly known as our ‘bone-dry’ law. None of said defendants were charged with the sale of intoxicating liquors. With a few exceptions all of said defendants were nonresidents of the state of Kansas. The said defendant reported to the county attorney of said county of Labette all resident offenders who were charged with violating the ‘bone-dry’ law, of whom the defendant had knowledge, giving to said county attorney the names of the officer or officers making the arrest, said report being made sometimes over the telephone, sometimes by going in person to the office of the county attorney, and at other times by having the county attorney come to the office of said defendant. None of said reports were in writing. Said defendant has been advised by the county attorney of said county that it was his opinion, and the opinion of the judge of the district court of that county, that persons going through the state having intoxicating liquors in their possession were not guilty of an offense against the laws of the'state of Kansas. Said defendant, believing that to be the law, talked to the county attorney from time to time in regard to the nonresidents carrying liquors through the state, and gave said county attorney the names of those parties of whom he, the defendant, had knowledge, and talked over these cases in an informal manner with the county attorney.
“IX. That the said P. T. Foley was paid the sum of $133.33 per month as salary as mayor of the city of Parsons, from February 1, 1919, to October 1, 1919. Prior to December 10, 1918, the salary of mayor of the city of Parsons was fixed at the sum of $1,200 per annum, payable monthly. On December 9, 1918, an ordinance was passed which was published on December 10, 1918, attempting to fix the salary of mayor of Parsons at $1,600 per annum. Section 6 of said ordinance provided: that said ordinance will take effect after its ratification by the Kansas legislature. That the said P. T. Foley, shortly after assuming the duties of mayor of the city of Parsons wrote to the attorney-general of the state of Kansas, and to the district judge of Labette county, inquiring of them as to the amount of salary he was entitled to draw as mayor. He then consulted with the city attorney, Mr. T. M. Brady, who advised him that he was entitled to draw a salary of $1,600 per annum. Said defendant, P. T. Foley, relying on said advice, collected from said city the said sum of $133.33 per month as salary as mayor.
“X. That it is a well and generally known policy of the police court of the city of Parsons to parole all persons convicted for the first time of illegally having intoxicating liquor in their possession, immediately upon payment of fine and costs. That notes are frequently accepted by the police court in lieu of cash payment of fine and costs. These notes are not only accepted in intoxicating liquor cases, but in other cases. That said system of taking notes had been in vogue in said city for some time prior to the election of P. T. Foley as mayor. That system and plan was approved by said P. T. Foley as being the best way to handle offenders. It was not used as a form of licensing the traffic in intoxicating liquor, but, on the contrary, all liquor found was destroyed and persons arrested were compelled to either leave the city or quit violating the liquor law.
“XI. That during all the time of the administration of the said P. T. Foley as mayor of the city of Parsons, Kan., the said mayor, police judge, city attorney and police officers were in constant touch with the county attorney of said county and worked together harmoniously, and diligently endeavored to enforce all the ordinances of the city of Parsons, and all the laws of the state of Kansas within their several jurisdictions.
“conclusions op law.
“I. That said defendant has not, knowingly, intentionally, or willfully violated any law of the state of Kansas.
“II. That said P. T. Foley should not be ousted from his office as mayor of the city of Parsons, Kan.
■“III. That the state should pay the costs of this action taxed at $-. Thomas Harley, Commissioner.”
The commissioner’s findings in the case against the police judge read:
“findings op pact.
“I. That said F. N. Boyd is now and has been ever since the 7th day of January, 1919, duly appointed, qualified and acting police judge of the city of Parsons, Labette county, Kansas.
“II. That the said F. N. Boyd from April 16, 1919, to September 4, 1919, had thirty-eight (38) cases before him as judge of the police court, in which persons were charged with illegally having intoxicating liquor in their possession, under an ordinance passed by said city following what is known as the ‘bone-dry’ law of this state. In nearly every case the parties or party arrested plead guilty, and a fine and jail sentence was imposed in a manner provided by the ordinance. That in all cases where the defendant or defendants, was or were, a resident of this state said police judge notified the county attorney of said county of the arrest, the name of the defendant or defendants, and the names of the arresting officers, but none of these were made in writing. That in those cases where the defendant or defendants were nonresidents of the state of Kansas, the said police judge as a rule advised the county attorney of the name of the defendant, or defendants, and the arresting officers, but in a number of cases this was not done, as the said F. N. Boyd has been advised by the county attorney of said county that it was his opinion, and the opinion of the judge of the district court of said county, that persons going through the state having intoxicating liquor in their possession were not guilty of an offense against the laws of the state of Kansas. Said defendant, believing that to be the law and believing that it was unnecessary to report that class of offenders to the county attorney, was not as particular in making these reports as he was where the defendant, or defendants, was or were residents of this state.
“HI. Said defendant, as police judge of the city of Parsons, paroled for the first offense persons convicted of illegally having intoxicating liquor in their possession immediately upon payment of fine and costs assessed therein, and in one case' paroled the defendant for the second offense. Notes were frequently accepted by the police judge in lieu of cash payment of the fine and costs. These notes were not only accepted in intoxicating liquor cases, but in many other cases, and the defendant was allowed to make partial payments. Said system of taking notes has been in vogue in said city for a number of years prior to the appointment of Mr. Boyd as police judge. There was no attempt on the part of Mr. Boyd as police judge to license the traffic of intoxicating liquor, but on the contrary all intoxicating liquor found was destroyed. Said defendant has, at all times since he has been police judge of said city, performed the duties of his office in a fair and impartial manner, exercising the discretion conferred upon him by law.
“CONCLUSIONS OP LAW.
, “I. Said defendant has not knowingly or willfully violated any laws of the state of Kansas.
“II. Said defendant, F. N. Boyd, should not be ousted from his office as police judge of the city of Parsons, Kan.
“III. That the state should pay the costs of this action, taxed at $-• Thomas Harley, Commissioner.”
The state filed general exceptions to the commissioner’s findings of fact; and therefore, as these are only advisory and do not have the binding force which attach, on appeal, to like findings of a trial court, when the latter’s findings are supported by substantial though controverted and conflicting testimony, the court itself must examine all the testimony, "and determine for itself the truth of the matters given in evidence,1 and the weight and significance to be attached thereto, as well as to determine the correct judgment which must be entered. (Wideman v. Faivre, 100 Kan. 102, 106, 107, 163 Pac. 619.)
In Hunt v. Gibson, 99 Kan. 371, 375, 161 Pac. 666, it was said:
“Each party challenges the findings of fact and conclusions of law adverse to him. If those which are adverse to the defendant be approved they determine the case. Being challenged, the commissioner’s findings are advisory only. In the solution of doubtful questions of fact, some weight may be given them because the commissioner had the advantage of personal observation of the witnesses while they were undergoing examination. With this exception the court • considers the evidence as though it had been taken by deposition.”
We have therefore perused with care the abstract of the record, consisting of some one hundred and fifty printed pages prepared by counsel for the state. We have also resorted to the still more voluminous transcript itself. Throughout this research we have kept a sharp lookout for evidence bearing not only on the mere question whether certain official acts of these defendants, under critical scrutiny, could be construed as a dereliction of official duty, but for evidence bearing on the question of the defendants’ sincerity and good faith in the discharge of their duties as mayor and police judge of Parsons. The act providing for the removal of unfaithful public officers was not designed as a pitfall into which an honest and sincere public official might be plunged if he unintentionally erred in the discharge of his official duty. The first section of the ouster act provides:
“Every person holding any office' of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer .by any of the laws of the state of Kansas, or who shall in any public place within or without the stpte be' in a state of intoxication produced by strong drink voluntarily taken, or who shall engage in any form of gambling, or who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit his office1 and shall be ousted from such office in the manner hereinafter provided.” (Gen. Stat. 1915, § 7603.)
Willful misconduct in office, willful neglect of duty, are the vices for which this statute provides a summary remedy. In The State v. Trinkle, 70 Kan. 396, 402, 78 Pac. 854, in which the state sought the removal of a county attorney'for nonenforcement of the prohibitory law, it was said that the distinguishing characteristic of every official act must be genuine good faith, and that the law presumes that a public official thus conducts himself, and that “the burden rests upon the state to show the contrary to be true, by a preponderance of the evidence.”
Tested by this rule, the state has failed to establish its case against either of the defendants. There is no convincing or substantial evidence in the record of willful official misconduct or willful neglect of official duty on the part of either defendant. There was no failure on the part of either of the defendants to notify the county attorney of violations of the prohibitory law as required by section 5505 of the General Statutes of 1915, so far as local resident offenders were concerned.
The city of Parsons is a railway center of considerable importance, a much traveled gateway between Oklahoma and certain large Missouri towns on our eastern border. Many persons not residents of Parsons carry liquor to and from Missouri and Oklahoma and are occasionally picked up by the police officers of Parsons. The county attorney held the opinion — whether correctly or not is immaterial — that these in terstate travelers carrying liquors were not violating the Kansas state law in so doing. He so advised the defendants, ■ and consequently he was not notified of these “pick-up” cases. Such failure of notification did not constitute willful misconduct in office nor willful neglect of duty.
The evidence to support the charge that the defendants were conducting the police-court business of Parsons as a mere revenue-producing system and not primarily for the suppression of crime cannot be sustained. The chief item of evidence to support that charge appears to be the publication of an article, by Mayor Foley in a newspaper owned by him, showing in a somewhat boastful way that his administration of the mayoralty was a financial success. In part it reads:
“a business administration.
“Once more has it been thoroughly demonstrated that it pays to have a business man at the head of the city government. Certainly the people want a business man, one who knows and talks' the Kansas language — to look after their affairs of state. The record of the present city administration for the first five months of the year is one in which every voter of the city may take especial pride. In order that you may know how the affairs of the city are getting on we' offer you here a few words of comparison between this and former administrations:
“On the first of January, 1918, the former mayor had a balance on hand in the general fund of.................... $22,854.48
“On the first of June, 1918, the former mayor had a balance on hand in the general-fund of........................ 12,639.70
“On the first day of January, 1919, the present mayor had a balance in the general fund of......................... 23,812.41
“On the first day of June, 1919, the present mayor had on hand a balance in the general fund of................... 19,550.54
“Of course, this does not represent the total amount of money used to run the affairs of the city, but it does show exactly the amount of moneys that were drawn from the general fund, and also shoWs very clearly that the present city administration has so conducted the affairs of the city as to save the taxpayers almost six thousand dollars in five months. At this ratio the total saving would amount to about $15,000 the year. Another item that shows an increase over the old administration is that of dog taxes. The figures will show that during the administration of the former mayor but $494.50 were collected during the year for dog taxes, while the present administration has already collected the sum total of $1,154.50, a difference of almost seven hundred dollars in dog taxes alone. The American people respect and admire a man who knows how to do things, and who goes ahead and does them, and the records of the' present city administration speak for themselves. At the rate above mentioned, $15,000 a year, in the two-year term of office, it would net a saving of some $30,000 to the taxpayers of this city. We say it again — a business administration pays, after all.”
Just how much laudation a public official may bestow on himself through the columns of his own newspaper is perhaps primarily a question of good taste. It has, too, its political aspects, no doubt. Be that as it may, the article in question has not the slightest value either as evidence, confession, or admission that the defendants had perverted the prosecution and punishment of lawbreakers into a means of raising revenue for the city, although an active and diligent campaign against offenders might possibly and temporarily produce such a result.
. If there is any lack of energy or sincerity in law enforcement by public officials, two classes of people very soon make that discovery — the lawbreakers, and the leaders of the moral sentiment of the community. Neither, of these classes is readily fooled for any considerable length of time. Of the latter class is the Ministerial Alliance of the city of Parsons, which concerns itself particularly with the enforcement of the prohibitory law. The Rev. Robert E. MacLean, minister of the local Methodist church, and a member of that alliance, testified:
“Q. From your investigation during the time that you have been in the city of Parsons during the Foley administration, have you a judgment or opinion as to whether or not the officers of this city, including Police Judge Boyd, have vigorously enforced the prohibitory law? You have an opinion on that subject? A. Yes sir, I have.
“Q. I wish you would state that opinion to the court. . . .
“Q. Have they or have they not vigorously enforced the law? A. I consider that they have, vigorously. You refer to the prohibitory liquor law especially?
“Q. Yes, sir. A. Yes.”
The Rev. Stado Munneke, minister of the local Presbyterian church, also a member of the alliance, testified:
“Direct Examination.
“Questions by Mr. Burton: ...
“Q. Does such alliance and do the ministers of,the city keep track in a general way as to whether or not the prohibitory liquor law is enforced in the city of Parsons, keep informed on that subject in a general way? A. Yes, sir; so far as we know. . . .
“Q. From the information you have received, have you an opinion, Mr. Munneke, as to whether or not the officers of the city of Parsons during the administration of P. T. Foley as mayor, have vigorously enforced the prohibitory law; have you an opinion on that subject? A. I have.
“Q. Have they or have they not vigorously enforced that law, in your opinion? ... A. I think they have.
“Cross-examination.
“Questions by Mr. Matson: . . .
“Q. Some members of the official city family here are members of your church, are they not? A. I think not, no.
“Q. Mr. Boyd a member of your church? A. No sir.
“Q. You were a supporter of Mr. Foley’s, were you, in the election? A. I was not.
' “Q. You are for him now? A. I am, yes sir. . . .
“Q. The information you have in regard to the enforcement of the prohibitory liquor law is the information that came to the Ministerial Association. A. No, it came to us rather as individuals.”
The testimony of Mrs. Kate Southwick, who is a local welfare worker, and of the county attorney himself, was to the same effect.
Passing to the charge that Mayor Foley profited personally in the matter of letting contracts for the city printing, it is clear from the record that when Mr. Foley was elected mayor of Parsons, he determined to retire from the presidency of the Foley Railway Printing Company and to dispose of his stock in that concern. That he did so is conclusively shown by the evidence. That he signed the corporation’s report to the secretary of state for the year 1918 after he became mayor in 1919 does not materially affect the conclusive character of the evidence. Foley was president of the printing company in the year 1918, and he assumed that the corporation’s report for that year was but a part of the unfinished business of the corporation which it was his duty to discharge. That Mr. Foley also signed a contract with the local labor union in 1919 was satisfactorily explained. Mr. Foley had been an opponent of the union. When his wife succeeded to his interests in the printing company she was not disposed to continue the strife, and it was at her request and also to gratify the labor union that Foley signed the labor-union contract. While this might well conclude this feature of the case against Mayor Foley, we note, also, that the printing company itself did not profit from its subcontract with the man who had been awarded the city printing. By agreement the work was done for him at cost, the usual profit being remitted.
Passing then to the charge that the mayor exacted a larger salary than authorized by law: It is very difficult to say what is the authorized salary of the mayor of Parsons. He drew $133.33 per month. An ordinance, prior to Foley’s assumption of the mayoralty, prescribed a salary of $1,600 per annum. The law authorized a salary of that amount or more. The defendant Foley, early in his administration, wrote to the attorney-general on this subject:
ÍÍO 111 Q-t Q
“Attorney-general, Topeka, Kansas:
“Dear General — Would you be kind enough to write me what the salaries of the mayor and commissioners are of the first-class cities like Parsons, over twenty thousand population. There seems to be different opinions on this matter and I would thank you to give me your opinion.”
The attorney-general replied:
“Topeka, February 18, 1919.
“Mr. P. T. Foley, Parsons, Kansas:
“Dear Sir — Under the existing provisions of our statute in cities of the first class, with from 20,000 to 30,000 inhabitants, and a commission form of government, the mayor shall receive a salary of not to exceed $2,000 per year, and each commissioner not to exceed $600 per year. The only exception to this provision is in cities of the first class which became cities of the first class after February 20, 1911, the date of the amendment of the statute, and in no cities with a population of from 15,000 to 25,000 does the mayor receive any more than $800 per year, and the commissioners $600 per year. Trusting this answers your inquiry satisfactorily, we are Yours very truly,
“Richard J. Hopkins, Attorney-general."
In May, 1919, the judge of the local judicial district, also, unofficially but obligingly gave Mr. Foley the benefit of his opinion touching the salary question, saying among other matters—
“My Dear Pete — I received your letter this evening, and having a little spare time I have looked at the statute governing the payment of compensation to mayors and commissioners in cities of the first class in Kansas. I also note that it is the craziest statute that I have examined for some time. But I also note that General Hopkins is correct in his interpretation of the law, but was not as explicit as he should.have been in explaining the law to you. . . .”
(Then follows an extended discussion relating to salaries of mayors in first-class cities of different population, and dependent upon the times at which such cities attained to such class and such population.)
The city attorney testified in substance:
“I have had several conversations with Mr. Foley in reference to his salary in January and February. Mr. Foley said he thought he was entitled to $1,800. I told him the statute only authorized him to receive not to exceed $1,800. I told him I had never been asked to construe the legality of the ordinance and told him he would not draw more than the ordinance provided. . . . He should not in my judgment draw more than $1,600 under any condition. So he said all right I will not draw the $1,800 but will take your judgment in place of the other men I h,ave been talking to.”
This record does not show when Parsons became a city of the first class, nor what was its population when the ordinance was passed. So far as pertains to the fixing of the mayor’s salary, no infirmity in the ordinance is readily discernible. The words at the conclusion of the ordinance, providing that it should take effect and be in force “after its ratification by the Kansas Legislature,” may perhaps be disregarded as surplusage. The sanction of the legislature to the fixing of the mayor’s salary had already been enacted. But it is not necessary now to analyze and determine this extremely subtle point. Here our only concern is whether the mayor willfully misconducted himself in office or willfully neglected to perform any duty enjoined upon him by law. On this last charge the conduct of the mayor is subject to no just criticism.
Having assiduously labored through the abstracts and trans-script, and having carefully examined the briefs, we have no hesitancy in sustaining the findings of fact made by the commissioner. We adopt them as our own. The charges against the defendants are not sustained, and defendants are entitled to judgment.
It is so ordered.
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The opinion of the court was delivered by
Porter, J.:
On the 26th of December, 1913, Hortense Patterson was seriously injured by the explosion of a coal-oil lamp. On April 24, 1915, she brought this action against the Uncle Sam Oil Company to recover damages for her injuries, alleging that the defendant was engaged in the wholesale and retail gasoline and coal-oil business in the city of Wichita and kept large quantities of coal oil and gasoline in storage tanks for that purpose; that sometime prior to plaintiif’s accident the defendant, through its agents and servants, mixed and mingled a large quantity of gasoline with a large quantity of coal oil, and negligently and carelessly delivered and sold to one J. H. Missildine, a retail grocer, large quantities of the mixture, knowing that he would sell and retail the same to his customers as coal oil for use in lamps for lighting purposes; that the mixture was sold to him as pure, high-grade coal oil, and that the plaintiif’s husband purchased some of the mixture from him as coal oil, and that the large content of gasoline therein caused the explosion which injured the plaintiff. There was a verdict and judgment in plaintiif’s favor for $3,000, from which the defendant appeals.
It is insisted that the petition does not state a cause of action, since it is not brought under any statute, because there is no common-law action in Kansas for injuries sustained through the explosion of coal oil sold for illuminating purposes; and that a recovery for such injuries can only be had under the Kansas statute, section 5023 of the General Statutes of 1915, which declares that:
“Whoever shall sell any fluids without inspection as provided for in this act shall be liable to any person purchasing any of said oils or fluids, or any person injured thereby, for any damages to persons or property arising from the explosion thereof.”
The defendant relies upon the case of Oil Co. v. Rankin, 68 Kan. 679, 75 Pac. 1013, the syllabús of which reads:
“In the absence of an express warranty, fraud, or deceit, the rule' of caveat emptor applies where a dealer sells goods on the market for retail.
“Chapter 72», General Statutes -of 1901, makes no provision for the recovery of damages to person or property resulting from the explosion of illuminating oil except where such oil is sold without having been inspected and tested.” (¶¶ 1, 2.)
In that case the petition set up two causes of action: the first, under the statute for damages for selling illuminating oil without having it tested; the second, a common-law action charging the defendant with having manufactured for illuminating purposes oil which, because of its liability to explode, was dangerous. In both causes of action it was alleged that the oil was sold by the defendant to a retail grocer who sold it to the plaintiff. The evidence showed that the defendant was a dealer in oil and sold to the retail trade. It was held that the demurrer to the second cause .of action should have been sustained. In the opinion it was said:
“Our statute, unlike the statutes of many states, does not give a right of aetion against the seller of oil for damages sustained by an explosion except where the oil was sold without having beep tested. It gives that right, however, if the oil has not been tested, regardless of what its actual test may be. The purpose of the act is to require all oils to be tested before being put on the market; in all its provisions that one idea predominates.” (p. 681.)
In the present case the jury made a finding that the oil had not been tested. The finding is unsupported by any evidence. The only evidence upon the subject was offered by the defendant and showed affirmatively that the oil had been tested. The court refused to set aside the finding. The defendant concedes that the jury were not bound to believe the testimony offered by it to show that there had been an inspection, but with much reason insists that the jury could not, in the absence of any testimony that there had been no inspection, make a finding that there had been none.
Evidence offered by both plaintiff and defendant established the fact that at the defendant’s place of business in Wichita there were six or eight oil tanks, including fuel-oil tanks, gaso line tanks, and coal-oil tanks, which were filled as occasion required from tank cars, and that in the latter part of November, 1913, there was an accidental mixture of some of defendant’s coal oil and gasoline. The mistake arose by misunderstanding a telephone message from the railway agent at Wichita notifying defendant that a tank of oil had arrived. The employee who received the message understood the agent to say, “We have a car of gasoline for you.” When the tank car filled with coal oil arrived at the plant about 4,000 gallons of the contents were pumped into one of the gasoline tanks, which held about 10,000 . gallons and which already contained several thousand gallons of gasoline. The mistake was then discovered. The evidence showed, however, that none of the mixture was run into the coal-oil tank from which wagons were filled for trade in Wichita ; that the mixture was allowed to stand in the gasoline tank until the next day, when the coal oil had settled to the bottom, and part of the contents was run off into a reserve tank and into barrels and shipped back to Cherryvale for treatment. What remained after having been tested was sold in Wichita as gasoline.
In an attempt to show that some of this mixture got into the general trade at Wichita, the plaintiff produced the testimony of two witnesses; one, the proprietor of a cleaning establishment, who, over the objections of the defendant, was permitted to testify that in December, 1913, he ordered high-grade gasoline from the defendant for use in his dry-cleaning establishment, and when it was used it left a coal-oil odor in the garments which could not be removed, and he was obliged to pay customers for injuries to the garments; that he had tested the gasoline so purchased from the defendant, and that it contained a large quantity of coal oil. .He had- never bought any coal oil from the defendant. Over the objections of the defendant the witness was permitted to testify that he brought an action against defendant and recovered damages for the loss occasioned by coal oil being mixed with the gasoline.
Another witness testified that he was conducting a garage in Wichita and during the month of December purchased gasoline from the defendant which contained kerosene or coal oil; that he complained of the quality of the gasoline and the defendant immediately replaced it with a high grade of gasoline to which he had no objection; that he had purchased coal oil from the defendant and had found it all right. All of this testimony was objected to on the ground that evidence of these transactions had no tendency to establish the fact that any of the mixture caused by the accident at the defendant’s plant was sold as coal oil, and that they had no connection whatever with the transaction between the defendant and the grocer Missildine. It was further objected to on the ground’ that it confused the issues and was not admissible, because evidence of defendant’s want of care could not be established by proving its negligence at other times or that it was generally careless. (S. K. Rly. Co. v. Robbins, 43 Kan. 145, 23 Pac. 113; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083; C. K. & W. Rld. Co. v. Hoffman, 50 Kan. 697, 32 Pac. 382; Railway Co. v. Morris, 64 Kan. 411, 67 Pac. 837.) Numerous additional authorities are cited on the proposition that particular acts of negligence cannot be admitted to prove the negligence in question.
Mr. Wade, who was the superintendent in charge of the defendant’s plant at Wichita and who discovered that the employees' had made a mistake and were filling a gasoline tank with kerosene, testified that they drew off all except a little that was left in the tank, and a thorough test was made of what remained after it had settled; that it was sold to garages and the gasoline trade in Wichita, and that the rest, including that first drawn into the reserve tank and into barrels, was shipped back to Cherryvale. He testified that he personally superintended the disposition of this mixture; that it was sold as gasoline, and before any of it was sold or delivered he personally tested it. His testimony is that sales and deliveries of coal oil were under his direct supervision; he identified the delivery tickets showing two sales of coal oil to grocer Missildine, one of twenty gallons on December 15, and one of thirty gallons on December 22, just previous to plaintiff’s accident; he testified that he was present and knew the tank wagons were loaded with the coal oil shown by the exhibits. The court sustained a motion to strike out the latter part of his testimony, possibly on the theory that something might have happened to the coal oil after it left the defendant’s place and before it was emptied into the tank at the Missildine grocery. The witness had explained the different method used in loading tank wagons with gasoline and with coal oil. The storage tank for coal oil was mounted on piers, and the wagons were loaded from it by gravity. When the gasoline tank wagons were loaded the gasoline was pumped from a tank lying on the ground into a graduating tank in order to ascertain the grade of the gasoline; from this tank it was then loaded into the wagons by gravity. On cross-examination Mr. Wade testified that in December, 1913, the product that remained in the tank after the mistake occurred, had been sold and distributed over the city of Wichita as gasoline, and that some of it was sold to Jackson, the dry cleaner, some of it went to the Hughes garage, and that some of it might have gone to Missildine as gasoline.
Manifestly it was error to strike out the testimony of the witness Wade. It concerned the most important issue in the case — the character and quality of the most recent sales of coal oil to Missildine, the retail dealer, just previous to the purchase made by the plaintiff’s husband of the mixture which, it is claimed, caused her injuries. It was, at least, evidence tending to show the quality of the mixture at the time it was sold and sent out for delivery. The witness did not attempt to testify as to what might have happened to the mixture after the wagons left the defendant’s place of business.
We think, too, that it was error to admit evidence as to the sales of gasoline to Jackson and Hughes. The plaintiff does not claim to have purchased gasoline; and the fact that defendant had sold to other persons or to the public generally, as high-grade gasoline, a product which contained coal oil, or that damages had been recovered in an action against it for such sales, was not competent evidence to establish a particular sale, as high-grade coal oil, of , a product mixed with gasoline. The testimony merely served to confuse the jury as to the real issue of fact involved. The error was highly prejudicial, because it was upon this character of testimony alone that plaintiff was forced to rely in order to establish by mere inference that the defendant had sold, as coal oil, a product mixed with gasoline.
The importance of this character of proof to the plaintiff’s case is apparent from the contentions presented in the brief, where it is insisted that the evidence shows that this mixture of gasoline and kerosene was sold to the retail trade of Wichita through the month of December, and that the evidence of Jackson and Hughes was admissible for the purpose of showing that defendant had mixed its gasoline and coal oil. It is said in the brief that:
“This evidence was admissible-for the purpose of showing that the defendants had mixed their gasoline and coal oil; for the purpose of showing knowledge and notice and for the purpose of showing the intention of defendants to sell this mixture to the trade generally. . . . The defendants’ own witness [Wade] testified that this mixture was sold all during the month of December in the city of Wichita. ... It was merely evidence of selling the same mixture here complained of, and as such was clearly admissible. . . . The gasoline was sold to the trade, and the coal-oil mixture was sold to the trade.”
But the witness, Wade, testified that none of the mixture went into the coal-oil storage tank; that some of it might have gone to Missildine as gasoline; that if he bought any, he bought it as gasoline.
Referring to the testimony of the witnesses Jackson and Hughes, it is said in plaintiff’s brief:
“The evidence of these witnesses was-merely cumulative of the fact that a mixing of this coal oil and gasoline had taken place.. The time of the sales and mixing all corresponded. The witnesses all testified that the time was the same and the evidence all shows that it was but one act of mixing. The fact that a mixture was sold to others shows the purpose of the defendants and the intention of the defendants to sell this mixture to their customers. It also shows notice to and knowledge of the defendant of the dangerous character of the mixture.”
Entirely independent of the errors in the admission of testimony, it is the opinion of the majority of the court that plaintiff’s case must fail because of a lack of evidence upon the vital question involved. It was only by mere conjecture and speculation that the jury could find that any of the mixture at defendant’s plant was sold or delivered to Missildine, the grocer, as coal oil. In Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356, it was said:
“While the jury were warranted in drawing fair and reasonable inference from the facts and conditions shown, it was only from those shown and not from those imagined or inferred that such inference could rightfully be drawn.” (p. 123.)
(See, also, another case with same title, Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101, and cases cited in the opinion.)
In Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58, it was ruled in the syllabus:
“So to establish a theory by circumstantial evidence that it may be accepted as a fact proved, the known facts relied on as a basis for the theory must be of such nature and so related to one another that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established.
“The term, ‘a presumption of fact,’ has reference to a fact whose existence is established by that just and reasonable inference which common sense and experience naturally draw from another fact known to exist. It must have a fixed fact for its foundation. It cannot be based upon a presumption.” (¶¶ 1, 2.)
(To the same general effect, see Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101; Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001.)
In Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101, Judge Benson, speaking for the court, said:
“The real question must always be whether there is substantial evidence, direct or circumstantial, fairly tending to prove the fact in issue. Presumptions, as understood in the law of evidence, must have substantial probative force as distinguished from surmise. If a fact may be established by inference from the presumption of another fact, it should at least be a logical' deduction and reasonably certain in the light of all other proper presumptions and of all collateral facts. The chain of presumptions ought not to be extended into the region of conjecture. (Diel v. Mo. Pao. Ry. Co., 37 Mo. App. 454.) A fact is not proved by circumstances which are merely consistent with its existence. (Carruthers v. C. R. I. & P. Rly. Co , 55 Kan. 600.) ” (p. 233.)
The theory of plaintiff’s case, as set out in her petition and at the trial, was that there had been an accidental mixture of coal oil and gasoline at the defendant’s plant in Wichita and that defendant, knowing this, negligently sold and delivered to Missildine as coal oil a part of this mixture containing quantities of gasoline which exploded and caused her injuries. That there was an accidental mixture of coal oil and gasoline at defendant’s plant a few weeks before is conceded, but the burden rested on the plaintiff to establish that some of this mixture was sold and delivered to Missildine for coal oil. That was the principal issue of fact involved at the trial. It must be held that there was no substantial evidence, direct or circumstantial, tending to prove that fact. It follows that 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
Burch, J.:
The action was one for damages for personal injuries sustained by a coal miner in the defendants’ mine. The plaintiff recovered, and the defendants appeal.
All questions but one are solved by an interpretation of the amended petition on which the parties went to trial. After stating that the plaintiff was injured by a fall of rock from the roof of the room in which he was working, and describing the place where the accident occurred, the petition contained a general charge that the defendants were negligent in failing to furnish plaintiff with sufficient and proper prop timbers for bracing the roof of the plaintiff’s mine room. The petition then continued as follows:
“Third: Plaintiff now says and alleges that it was the duty of the defendants and their said mining boss, Joe Gladdis, to furnish this plaintiff with prop timber of suitable length, quality and size for the purpose of bracing the roof of said mine room, and that the timbers so furnished were insufficient in length, size', and strength, and at the time of the injury to plaintiff, at the time and in the manner aforesaid, the said props gave way, broke and fell under the weight and pressure of the roof of his room, thereby causing and permitting the said rock, slate or stone to fall upon and injure plaintiff as aforesaid.
“Fourth: Plaintiff further alleges that he was unaware of the impending danger as herein alleged and fully set forth at the time, but that the defendants either knew or could have ascertained by use of due care and diligence, that said prop timber furnished him was insufficient in length, size, and strength, and that it was not suitable for the purposes intended by them.
“Fifth: Plaintiff further alleges that it was the duty of the said mining boss, Joe Gladdis, defendant here, to inspect or keep a careful watch over the class and kind of prop timber furnished plaintiff, for the purpose of properly bracing his said room in said mine, and to keep said timber at easy access, and that this duty was independent of the employment of the said John Mayer, and John Mayer doing business as the Katy Coal Company, but that this duty was incident to and part of the operation of said mine as imposed by law, but that said defendant, Joe Gladdis, willfully, carelessly and negligently failed to keep said careful watch over the class and kind of timber furnished plaintiff for propping said room.
“Sixth: Plaintiff further alleges that it was the' duty of the said John Mayer, and John Mayer doing business as The Katy Coal Company, to employ a mining boss, and that they did employ the said defendant, Joe Gladdis, as such mining boss, whose duty it was to suppíy plaintiff with sufficient prop timber of suitable length, quality and size for the room or place where it was to he used, and that said timber should be kept at easy access to plaintiff, but said prop timbers were not supplied, and that the defendants, John Mayer and John Mayer doing business as The Katy Coal Company, knew and were negligent in that they knew that said prop timber was not so supplied, as they were by law required to do.
“Seventh: Plaintiff now complains and alleges that, by reason of the fault, negligence and carelessness of the defendants, and each of them, he has been greatly and permanently damaged. ...”
Considering nothing but the face of the pleading, it is manifest that it specifies three grounds of negligence: first, furnishing defective prop timbers, which were insufficient to sustain the weight of the roof of the room; second, failure to inspect prop timbers furnished; and third, failure to furnish prop timbers. The defendants say the sixth paragraph of the petition is consistent with paragraphs 3 and 4, which is true. There is no inconsistency between allegations that prop timbers which were furnished were defective, and allegations that a sufficient supply of prop timber of proper length, quality and size was not furnished. That the sixth paragraph was designed to charge and did charge failure to supply at all a sufficient quantity of suitable prop timber, is made clear by the reference to the defendants’ duty to keep such timber at a place easy of access by the plaintiff.
The accident occurred on Monday. The plaintiff testified that the height of his room was three feet four inches; that he needed props three feet four inches long for an unproped area of his room some twelve or thirteen feet wide by fifteen feet long; that he ordered props of Joe Gladdis, one of the defendants, and of Jackson, a driver, on Friday, Saturday, and again on Monday morning, but did not receive them; that he had no props in his room at the time of the accident; that a rock in the unpropped- space fell on him and injured him; and that no props were broken by fall of the rock. Jackson testified that on Saturday and on Monday morning before the accident the plaintiff asked him to bring three-foot-four-inch props, and that he did not do so.
At the close of the plaintiff’s evidence, the defendants moved to strike out the testimony in relation to there being no unused props in the room at the time of the accident as immaterial and contrary to allegations of the petition. The motion was properly overruled.
The plaintiff then amended his petition by dropping the charges of negligence relating to defective props and want of inspection, and rested liability on failure to furnish props. The amendment was wholly unnecessary. The court would have taken from the jury the charges abandoned by the amendment, because there was no evidence to sustain them, and the remaining charge was simply restated, in what, for all purposes of the law, was the same form as before, as appears by the following paragraphs of the amended petition:
“Third: That on or about the said 22d day of November, 1915, it was the duty of said John Mayer, trading and doing business as The Katy Coal Company, and Joe Gladdis, as mine boss, to supply plaintiff with and keep in easy access to him at his working place in said coal mine, sufficient prop timber of suitable length and size for the purpose of propping the roof of his said working place, or room therein.
“Fifth: That said defendants, omitting their duty to plaintiff, did, on or about said 22d day of November, 1915, willfully, unlawfully, carelessly and negligently fail and refuse to supply and keep in easy access to plaintiff, prop timber of suitable length and size for the purpose of propping the roof of said room, which plaintiff alleges was the direct and proximate cause of his said injury.
“Seventh: That the injury to plaintiff was caused solely and wholly on account of the negligence and carelessness of said defendants, as herein alleged. . . .”
The defendants then demurred to the plaintiff’s evidence on two grounds, stated in the defendants’ brief as follows:
“(a) That the statute of limitations had run on the ground of negligence set out in the second amended petition.
“(b) That after appellee had claimed for two years that the injury resulted from the use of defective props, he was estopped from claiming he had no props.”
The demurrer to the evidence was overruled. The defendant's then asked for a continuance, • which was denied. In support of the application for a continuance, counsel for the defendants stated that at a former trial of the case he had a witness in attendance who would have testified that after the accident broken props were found at the place where the accident occurred, but counsel concluded the testimony was immaterial under the pleadings, and the witness was not presently available. The practice which the court is accused of sanctioning by allowing the amendment and refusing the continuance is discussed in the defendants’ brief as follows:
“If this practice can be pursued, then no man is safe to attempt to defend a lawsuit. Issues may be made, preparation made to disprove the issues, witnesses not be subpoenaed because their testimony is immaterial, and then upon trial an entirely new issue may be presented, the old issue abandoned, and the party be in the midst of a lawsuit with no opportunity to defend against the new issue. This changes lawsuits from settlements of rights, and offers success to the shrewd juggler, punishes honest pleaders, and offers a premium to the shrewder schemer. If this practice is permitted, honest and conscientious pleaders will withdraw from the profession, and leave the field open to those who believe that lawsuits should be won by him who deceives his adversary most.”
There was a former trial of the action and a former appeal to this court (Smart v. Mayer, 103 Kan. 366, 175 Pac. 159). At the oral presentation of this appeal the court was invited to inspect the record of the former proceedings. While the propriety of the court’s rulings, now complained of, may not' be tested by reference to that record, the court has perused it with interest. It shows the trial of just one issue — failure to furnish props. There was no evidence whatever relating ■to defective props, or the subject of inspection. The plaintiff gave substantially the same testimony as at the second trial, and so did Jackson. The defendants met this testimony by testimony that props were found in the room after the accident, and the question whether or not the defendants furnished the plaintiff sufficient prop timber of suitable length and size for his working place, and kept such timber in a place easy of access by the plaintiff, was the only question submitted to the jury. Special questions bearing upon this issue were propounded to the jury, and the record is barren of any suggestion by counsel for defendants that the sole issue under the pleadings was defective props. When the case came to this court, the brief of the defendants contained the following:
“The plaintiff testified he had no props, and that it was necessary to prop his room . . . And the inference might be drawn from the evidence of P. H. Scott that there were no props . . . while the evidence of R. E. Welch , . ., and the evidence of defendant Joe Gladdis . . . was that there were props. Therefore this question was in dispute in this case.”
The special questions propounded to the jury were answered, “We do not know,” and the* argument of the defendants was that those answers determined the dispute in their favor. This court stated the issue — failure to furnish props (Smart v. Mayer, 103 Kan. 366, 367, 175 Pac. 159), and disposed of the case, in blissful ignorance that the issue of defective props was the only one triable under the pleadings.
When the case came on for trial the last time, counsel for defendants expressed no surprise and made no objection when counsel for plaintiff, in his opening statement, said this:
“The evidence will show, gentlemen of the jury, that at the time and place the plaintiff was without props of suitable length and size for the purpose of propping the roof of his room;'that he had ordered props of Joe Gladdis and the driver in this entry — the driver’s name, I think, is Will Jackson; and that such props had not been supplied him or kept within easy access to Mr. Smart.
“It is further contended by the plaintiff that there were no props at the particular point where the rock fell, and that he had none to place there, and the failure to furnish these props was the proximate cause of his injury.”
Not until the evidence for the plaintiff was all in did it occur to the defendants that the matter of defective props was the sole question for determination, and consequently that the time of the district court at two trials, and of this court on appeal, had been wasted in considering an issue not raised by the pleadings.
Leaving out of account the record of the case anterior to commencement of the second trial, the demurrer to the plaintiff's evidence was properly overruled, and the motion for continuance was properly denied.
The defendants answered the amended petition by pleading the statute of limitations. The basis of the plea was that a new issue had been injected into the case, which was not true.
The jury found specially that there was an unpropped portion of the roof of the plaintiff’s room twelve by thirteen feet in extent; that the height of the room was three feet four inches; that the plaintiff was in need of from twelve to fifteen three-foot-four-inch props; and that he had ordered such props of Joe Gladdis and of Jackson. The jury also returned the following special findings:
“5. Were there any loose or unused props in plaintiff’s room at the time of his injury? Answer: Yes.
“6. If you answer question 5 in the affirmative, state the number and length of said props. Answer: In our opinion there were loose props as follows: Eight 30-inch props, one 36-inch prop, and 45 caps.”
Welch, a witness for the defendants, testified that after the accident he made a sketch of the room, from which he after-wards made a blueprint plat, which was introduced in evidence. He testified as follows:
“Q. I wish you would state now the number of props and the length of the props you found lying down. A. One, three foot six; three, three foot four; eight, three foot, and four or five cap pieces. I mean when I say cap pieces, small pieces of wood about an inch thick and about six inches long and three or four inches wide, used in connection with the props. They are used over the prop and under.”
The court refused to set aside the sixth finding. The defendants say nobody testified there were any thirty-inch props in the room. The plaintiff says the jury did its best to state some figures on Welch’s blueprint which were difficult to decipher. The blueprint has not been photographed, and the original has not been brought to this court.. It will be noted that the jury did not attempt to give a positive answer to the question. Whatever Welch and his plat might say, the jury did not believe there were, any three-foot-four-inch props in the room, and conceding the finding was wrong in reference to thirty-inch props, it does not disclose passion or prejudice-, or vitiate the general verdict.-
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
Dawson, J.:
The plaintiff sued the defendant for laborer’s wages, materials furnished, and for services in caring for defendant’s horses. He also sued for wages due two other laborers who had assigned to him their accounts against defendant.
The cause was tried before a justice of the peace, and appealed to the district court.
The plaintiff’s evidence tended to show that in February, 1918, the defendant employed plaintiff to chop trees, at an agreed wage of $8 per day, and that pursuant thereto plaintiff worked for defendant some sixty-four days. It also tended to show that defendant had authorized plaintiff to purchase $6.60 worth of window glass and some wire. It was also shown by plaintiff’s evidence that defendant promised “to make it right with” plaintiff if the latter would look after defendant’s horses, and that pursuant thereto plaintiff cared for seven head of horses, fed them and pumped water for them for one hundred and fourteen days, and that such service was worth “a dollar a day.” Plaintiff also showed that one John Carey and one B. E. Carey had worked for defendant for a number of days, and that they had assigned their wage accounts to him.
Defendant’s evidence tended to show that while he had offered plaintiff thirty cents per hour to cut wood, and that the two Careys worked for him some days at that price, all three of these laborers had later made a counter proposition to chop the trees for the wood — “they would take the wood for the chopping, so that they could go to work and sell it and get the money.” They did so, according to defendant, and he owed them nothing for labor, and had paid them for wood which they had delivered to him. Touching the care of the horses, defendant testified that plaintiff agreed to do that for the use of the horses. Militating somewhat against the force of defendant’s evidence was his admission that he gave plaintiff some “credit on the wood chopping.”
Other details of the evidence need not be narrated.
Verdict and judgment for $144.38 were rendered against defendant, and he appeals.
This is simply another case of disputed facts — a dispute terminated by the jury’s verdict and the trial court’s approval of that verdict. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
It is immaterial that plaintiff may have paid nothing for the Careys’ accounts. That they were duly assigned to him is not denied, and he could maintain an action to collect them. (Civ. Code, §§ 25, 26; see, also, Stanley v. Penny, 75 Kan. 179, 182, 88 Pac. 875; Shannon v. Abrams, 98 Kan. 26, 29, 157 Pac. 449; Lower v. Shorthill, 103 Kan. 534, 538, 176 Pac. 107.)
It is contended that the trial court erred in instructing the jury that if they found for the plaintiff they should allow him legal interest on the amount found due from October 3, 1918. Defendant admitted that on that date plaintiff had made a demand on him for payment. Since there can be no doubt that the money was then due from defendant, interest was properly computed from that date. (Smith Bros. v. Hanson, 106 Kan. 32, 187 Pac. 262.)
Complaint is made of some of the other instructions. These have been examined. As a whole they were rather extensive but not inaccurate statements of elementary law, formulated with pertinent relation to the issues involved. The instructions stated the law with reference to defendant’s theory as to the case as well as to that of the plaintiff; they contain no discernible error, and present nothing justifying discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs brought this action against their sister, Mattie Brewster, to cancel and set aside a deed executed to her by Mary Clifford, who was a sister of all the parties to this action. It was alleged that the instrument was executed and delivered a few days before the death of Mary Clifford, \$hen she was mentally incapable of executing the instrument or of transacting business of any kind. From the testimony the court found that she did not have the mental capacity to execute the deed, and therefore set it aside and directed a partition of the property among the plaintiffs and defendant, they being her only heirs.
The principal contention on this appeal is that the testimony of two physicians who attended Mary Clifford in her last illness, which related to information as to her mental capacity, gained by them while attending her in a professional capacity, was improperly admitted. The testimony was admitted over the objection of the defendant and the grantee in the deed which was attacked. The objection is based on the statute providing that—
“The following- persons shall be incompetent to testify:
Sixth, a physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient.” (Gen. Stat. 1915, § 7223.)
The plaintiffs contend that the disqualification of the witnesses may be waived and that the objection to the privileges was not available to the defendant. They insist that as heirs at law and interested in the protection of the estate of the deceased, they could, and by the offer of the evidence did, waive the privilege, and that defendant was defending as grantee in the deed and was asserting no rights as heir, and was therefore not in a position to invoke the privilege or make the objection. There is considerable conflict in the authorities as to the application of the rule and as to when and by whom the privilege may be waived. It has been held in a testamentary proceeding that the patient is the person interested in preserving unbroken the confidence reposed in his physician and after his death there is no one to assert the privilege. Allen v. The Public Administrator, 1 Bradf. [N. Y.] 221.) In 1 Wharton on the Law of Evidence, § 591, it is said:
“The privilege, it should also be remembered, is meant to protect the living in their business relations, and cannot be invoked when the question arises as to the intention of a deceased person in respect to the disposition of his estate.”
(See, also, Staunton v. Parker, 19 Hun [N. Y.] 55 [N. Y.]).
Many authorities, however, hold that the privilege survives to personal representatives of the deceased, his family, and those personally interested in protecting his reputation and estate. (4 Wigmore on Evidence, § 2386.) That author says :
“The privilege, furthermore, is that of the patient as such, not of the party; hence, the claim should be made by the patient himself, in accordance with the analogy of other privileges (ante, §§2270, 2321) — though this rule is seldom observed in practice. The privilege, furthermore, may be claimed by the representative of a deceased patient, as his personal successor; but not by a mere assignee of a contract-interest.”
On the other hand, it has been held that the prohibition of the statute is founded on public policy, and unless it has been expressly waived by the patient the testimony of the physician can never be revealed; that a waiver may not be made by an executor or administrator; that any party to an action can object to evidence coming within the prohibition unless the patient, the person for whose protection the statute was enacted, has waived the privilege; and that when the patient is dead the matter is forever closed. (Westover v. Ætna Life Ins. Co., 99 N. Y. 56). In re Flint, 100 Cal. 391, adopted the rule of the Westover case just cited, and held that the heirs of a deceased person who contest his will cannot waive the privilege attaching to communications of a deceased person. In the opinion it was said:
“His rights are not buried in the grave, and heirs and devisees quarreling among themselves over a division of his patrimony, in justice to his memory, should not be allowed to waive the privilege.”
In these cases others of similar import are cited.
In our state a more liberal view has been taken as to the matter of waiver. For instance, it has been held that as the statute provides that the patient himself may consent to the testimony of the physician, no question of public policy is involved. The prohibition imposed on the physician is the privilege of the patient, and not of the physician, nor yet of the public, and therefore a patient may make a valid contract waiving the privilege afforded him in the statutory prohibition. (Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62.)
In an action to recover possession of a tract of land alleged to have been conveyed to another when the grantor was of unsound mind, a physician who had attended the grantor in her last illness was offered as a witness by the surviving sisters, and heirs at law, but the testimony was rejected, and upon appeal it was held that the evidence was admissible. In the syllabus of the case it was said:
“The heirs at law of one who has been treated by a physician may waive the provisions of the statute making a physician incompetent to testify to any knowledge obtained in his professional capacity from the patient.” (Fish v. Poorman, 85 Kan. 237, syl. ¶ 6, 116 Pac. 898.)
In another case deeds which had been executed shortly before the death of the grantor were assailed upon the ground that the grantor was without mental capacity to make them,' and it was held that the testimony of an attending physician as to his knowledge obtained in a professional way might be received where the privilege was waived by his heirs at law. It was said that—
“This is in accord with the best judicial thought in this country on this subject, and takes nothing from the effect of defendants’ citations.” (Bruington v. Wagoner, 100 Kan. 10, 15, 164 Pac. 1057. See, also, the authorities therein cited.)
While the privilege is personal to the patient and may be waived by him, the general rule is that after his death the privilege may be waivedNy his legal representatives and those interested in the preservation of his estate. The plaintiffs herein who are suing as the heirs of the deceased, effectually waived the privilege by offering the evidence. They were interested in preserving the estate of the deceased, which would have been largely diminished if effect had been given to the invalid instrument. The defendant, however, is defending as grantee, and not as heir or devisee, and in this litigation she stands in the attitude of a stranger to the estate. Although she is a sister of the deceased, she is not asserting any claim by reason of heirship or relationship to the deceased, and has no greater right to invoke the privilege than would an outsider if the deed had been made to him. Restrictions on the full development of the facts and the ascertainment of the truth of a controversy are strictly construed, and the privilege being personal in its nature, it should not be extended by implication, especially after the death of the one for whose benefit it was given. In regard to the light in which the statutory privilege is to be viewed it has been said:
“The statute is not remedial in any proper sense of that term, as some courts would hold, but merely grants a privilege to persons in specified relations if they see fit to take advantage of it; and the terms of the statute will not be extended by implication or by interpretation, but will be strictly construed in favor of the competency of witnesses.” (Armstrong v. Street Railway Co., 93 Kan. 493, 503, 144 Pac. 847. Citing numerous cases.)
Speaking of the policy and effect of the privilege, Professor Wigmore says:
“That the relation of ’physician and patient should be fostered, no one will deny. But that the injury to that relation is greater than the injury to justice — the final canon to be satisfied — must most emphatically be denied. The injury is decidedly in the contrary direction. Indeed, the facts of litigation to-day are such that the answer can hardly be seriously doubted. . . . Certain it is that the practical employment of the privilege has come to mean little but the suppression of useful truth— truth which ought to have been disclosed and would never have been suppressed for the sake of any inherent repugnancy in the medical facts involved.” (4 Wigmore on Evidence, § 2380.)
Of course the prohibition of the statute must be given the effect intended by the legislature, but so far as it is open to interpretation it should be strictly construed instead of reaching for an implication that would operate to suppress the true facts necessary to a just determination of the issue involved. Looking at the question in that light, we conclude that the plaintiffs waived the privilege, and that the defendant standing in the position of assignee or grantee is not entitled to invoke the privilege or object to the admission of the testimony offered. Although challenged, the testimony in the case is deemed to be sufficient to support the findings of the trial court, and its judgment is therefore affirmed.
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The opinion of the court was delivered by
Mason, J.:
On February 9, 1915, Jacob A. Corbett settled upon a tract claimed by him to be school land belonging to the state in virtue of having originally been an unsurveyed island in the Arkansas river. On April 1 of that year, in pursuance of his plan to acquire title thereto, he gave the bond required by statute (Laws 1913, ch. 295, §2) conditioned for the payment of all costs and damages that might be awarded against him in any of the subsequent proceedings relating thereto in case it should be finally determined that he was not entitled to purchase it. His claim was contested by Pauline Harburger Cohen and upon a trial of the case the district court adjudged her to be the owner of the land, a judgment which was affirmed on appeal. (Corbett v. Cohen, 100 Kan. 348, 164 Pac. 264.) The present action is brought by her upon the bond to recover the damages sustained by her from the institution of the proceedings for the purchase of the tract as school land, including her attorneys’ fees in the district court and in the supreme court in the litigation referred to. She was allowed to recover only for her expenses in defending the proceeding in the district court. She now appeals., from the part of the judgment denying her a recovery on account of her expenses in resisting the former appeal. The defendants also complain of the judgment and ask a reversal on the ground that no recovery whatever should have been allowed the plaintiff. The issue between the parties thus raised is whether or not the statute should be so construed as to permit a recovery on the bond for the expenses incurred by the owner-of a tract in resisting the effort of a settler to purchase it as school land.
The part of the statute relating to the giving of the bond reads as follows, the portion thereof bearing immediately upon the question being here printed in italics:
“Any person who has heretofore settled, or shall hereafter settle upon any such island or a part thereof, for the purpose of purchasing the same as school land, . . . shall . . . furnish a bond running to the state of Kansas, signed by one or more sufficient sureties to be approved by the said county clerk, conditioned that such settler shall pay all costs and damages that may be awarded against Mm or her in any of the subsequent proceedings relating thereto-, in case it shall be finally determined that such claimant was not entitled to purchase such tract as school land, and such bond shall be available for. the protection of the state of Kansas, and adverse claimant to such land, and any and all court or other officers and witnesses that may become entitled to fees, or costs in any of the proceedings relating to said matter.” (Laws 1913, ch. 295, § 2, repealed by Laws 1915, ch. 322, § 14.)
We find considerable difficulty in reaching a satisfactory construction of the italicised words. There is obvious plausibility in the contention of the defendants that the obligation to be incurred by the bondsmen is only to pay such sum as may be awarded against the settler by an order made in the specific proceeding which is instituted in the district court by the assertion of his claim, the purpose of which is to determine whether or not the tract involved is public land. That is a construction which might readily be put upon the language if it were not for the use of the word “damages.” The statute does not provide for the allowance in that proceeding of any damages other than costs, although provision is made for taxing as costs reasonable fees for the attorney-general or county attorney appearing for the state, not to exceed $25 in the district court and $50 in the supreme court. (Laws 1913, ch. 295, §4.) The interpretation suggested therefore gives no effect whatever to the word “damages.” The phrase “damages and costs”, has been interpreted as meaning merely “costs,” but only where it was found impossible to give any additional force to the use of the word “damages.” (Riley v. Mitchell, 38 Minn. 9, 12.) We do not feel at liberty to adopt that interpretation if any other is reasonably open which will make that term of some effect. Inasmuch as the bond is expressly made available for the protection of the adverse claimant of thé land a natural explanation of the use of the word damages is that it refers to compensation for his expenses in resisting the settler’s claim if it shall prove ill-founded. This meaning is in accordance with what appears to be the spirit of the provision and can be derived from its letter by regarding the phrase “in any of the subsequent proceedings relating thereto” as applying to “damages” instead of “awarded,” as though the clause read “shall pay all costs and damages in any of the subsequent proceedings relating thereto that may be awarded against him.” Under this interpretation of the statute, which we adopt, the bond is of the same character as those given upon the obtaining of an attachment or injunction, which support a recovery of attorneys’ fees. (Parish v. Brokerage Co., 92 Kan. 286, 140 Pac. 835; Mulvane v. Tullock, 58 Kan. 622, 50 Pac. 897.) The purpose being to indemnify the owner of the land .against the financial loss occasioned by an unfounded assault upon his title, we think his recovery should extend to the expenses of resisting an appeal as well as of defending against the attack in the district court. Such appears to be the more usual view where that question has been raised in attachment and injunction proceedings. (6 C. J. 543, note lc; 14 R. C. L. 488.)
The amount of the additional expenses incurred by reason of the appeal has already been foun'd, so that there is no occasion for a further hearing in that regard.
The cause will be remanded with directions to modify the judgment by increasing it by that amount.
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The opinion of the court was delivered by
Marshall, J.:
The state presents a question reserved by it under section 288 of the code of criminal procedure. The defendants were placed on trial charged with the murder of Joe Kutler.. A mistrial resulted, the jury failed to agree, and the action was continued for the term. The state complains of the introduction of evidence on behalf of the defendants, and of an instruction given to the jury.
1. At the outset this court is met with an application on thé' part of the defendants to dismiss the appeal. Section 283 of the code of criminal procedure reads:
“Appeals to the supreme court may be taken by the state in the following cases, and no other: First, upon a judgment for the defendant on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; third, upon a question reserved by the state.” (Gen. Stat. 1915, § 8199.)
The appeal is taken under the third subdivision of section 283 on “a question reserved by the state.” This expression has received attention in Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735, The State v. Rook, 61 Kan. 382, 59 Pac. 653, The State v. Bland, 91 Kan. 160, 136 Pac. 947, The State v. Railway Co., 96 Kan. 609, 628, 152 Pac. 777. But the discussion there found does not materially assist in the solution of the problem now presented.
No order that this court may now make can have any effect bn the trial out of which this appeal has arisen. No judgment has been rendered that can be affirmed, modified, or reversed. This court has repeatedly refused to consider questions where the matter complained of has been adjusted, or where any order made by the court would not have any effect.
“A court will not make an order which in the nature of things cannot be obeyed.” (Crouse v. Nixon, 65 Kan. 843, 845, 70 Pac. 885.)
“The judgment of the court below having been complied with, nothing is left to litigate in this court.” {Waters v. Garvin, 67 Kan. 855, 73 Pac. 902.)
“The rule applied that this court will not consider and decide questions when it appears that any judgment it might render would be unavailing.” {Jenal v. Felber, 77 Kan. 771, 95 Pac. 403.)
“The court is not required to give judgments that are not effective. (Stebbins v. Telegraph Co., 69 Kan. 845, 76 Pac. 1130.) When questions become moot, judicial action will cease.” (The State, ex rel., v. Insurance Co., 88 Kan. 9, 10, 127 Pac. 76.)
(See, also, City of Kansas City v. The State, 66 Kan. 779, 780, 71 Pac. 1127; Bonnewell v. Lowe, 80 Kan. 769, 104 Pac. 853; Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235; City of Ottawa v. Barnes, 87 Kan. 768, 125 Pac. 14.)
It has been repeatedly held that an appeal by the state cannot be prosecuted after the defendant has been tried and acquitted.’ (The State of Kansas v. Carmichael, 3 Kan. 102; City of Oswego v. Belt, 16 Kan. 480; The State v. Crosby, 17 Kan. 396; The State v. Phillips, 33 Kan. 100, 5 Pac. 436; The State v. Moon, 45 Kan. 145, 25 Pac. 614; The State v. Lee, 49 Kan. 570, 31 Pac. 147; The State v. Hickerson, 55 Kan. 133, 39 Pac. 1045; City of Lyons v. Wellman, 56 Kan. 285, 43 Pac. 267.) Appeals have been acted on under the first and second subdivisions of the statute. (The State v. Brandon, 7 Kan. 106; Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735; The State v. Rook, 61 Kan. 382, 59 Pac. 653; The State v. Bowles, 70 Kan. 821, 79 Pac. 726; The State v. Campbell, 70 Kan. 899, 79 Pac. 1133; The State v. Campbell, 70 Kan. 900, 79 Pac. 1133; The State v. Buis, 83 Kan. 273, 111 Pac 189; The State v. Lumber Co., 83 Kan. 399, 111 Pac. 484; The State v. Railway Co., 96 Kan. 609, 628, 152 Pac. 777.) An appeal by the state has been sustained where judgment for costs has been assessed against the county, and the name of the prosecutor has been stated in the verdict, and the jury has found that the prosecution had been instituted without probable cause and from malicious motives (The State v. Zimmerman, 31 Kan. 85, 1 Pac. 257), and from a judgment in a liquor case refusing to award an attorney’s fee as costs. (The State v. Bland, 91 Kan. 160, 165, 136 Pac. 947.) One reason given for refusing to entertain an appeal where the defendant has been acquitted has been that, having been acquitted, he was once in jeopardy and cannot be again placed on trial for the same offense. (The State v. Rook, 61 Kan. 382, 59 Pac. 653.)
Section 3 of article 3 of the constitution of this state provides :
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.” (Gen. Stat. 1915, § 172.)
The statute under consideration provides for appeals “upon a question reserved by the state.” The question presented is a question reserved by the state and comes within the language of the statute. Questions reserved by the state where there has been a verdict of not guilty would likewise come within the language of the statute, but such appeals have not been entertained, probably for three reasons; first, if a judgment of acquittal were reversed, and the defendant again placed on trial, he would be twice in jeopardy in violation of section 10 of the bill of rights of the constitution of this state ; second, because the defendant had been discharged and the court no longer had any jurisdiction over him; third, because no order that the court could make would have any effect. The second and third reasons, when reduced to their final analysis, will be found to be based on the fact that any order to be effective would place the defendant twice in jeopardy. Bearing some analogy to the second reason, and showing in a degree that it is not good, is the practice that obtains in the Federal courts of certifying a question to a higher court for determination while the action is still pending in the court from which the question is certified. During the time that the question is pending in the higher court the trial court retains jurisdiction of the action and goes ahead with the trial after the question has been answered. A somewhat similar practice exists in a number of states. (3 C. J. 989-1000.) Even after a verdict of not guilty has been returned, the defendant has been discharged, and the judgment has been reversed, if it can be reversed, there is no reason why the court cannot again obtain jurisdiction of the defendant by causing him to be rearrested, but there is no reason for rearresting him if he cannot be tried. Jeopardy is the fact that prevents further proceedings, but jeopardy does not deprive this court of the power to hear and determine the present appeal, for the reason that the defendant is yet to be tried on the charge against him, and on that trial a plea of former jeopardy cannot be successfully interposed.
The civil code provides that the court may, in advance of the trial of the facts, pass upon questions of law “not raised by motion or demurrer but appearing to be involved in the case under the allegations of the pleadings,” such questions and rulings to be stated in writing and filed as a part of the record. (Civ. Code, § 278, Gen. Stat. 1915, § 7178.) Under that provision a decision might be made the effect of which would be to declare that when that stage of the trial should be reached the jury should be instructed as to the legal effect of certain facts, if found. The statute does not at the present time allow an appeal from such a ruling or declaration, but no reason is apparent why it might not be permitted. The situation here presented is essentially similar. It has been developed by a ruling already made that the trial court entertains an erroneous view of the law on a vital point involved which, unless corrected, is likely to bring about an acquittal through the jury’s mistaken conception of the defendant’s rights. If this court may not interpose to prevent such a result, a grave miscarriage of justice may take place, because the remedy provided by the statute is unavailable, not on account of any practical evil consequences that might be apprehended, but by reason of a somewhat extreme application of an abstract theory. There is a real need for the practice here invoked, in order that the interests of the state may be protected, for a verdict of not guilty is necessarily final. A defendant requires no such protection, because if convicted he may obtain a new trial upon a showing that error was committed against him.
In State v. Roderick, 77 Ohio St. 301, the supreme court of Ohio sustained exceptions taken by the state in a murder trial. The constitution of Ohio then provided that the supreme court should have “such appellate jurisdiction as may be provided by law” and that no person shall “be twice put in jeopardy for the same offense.” The statutes provided for bills of exceptions being prepared by the prosecuting attorney or attorney-general and being signed by the trial court and presented to the supreme court, and further provided that the judgment in the action in which the bill of exceptions was taken should not be reversed nor affected by the decision of the supreme court, but the decision should determine the law to govern in a similar case.
The application to dismiss the appeal is denied.
2. The defendants introduced evidence which tended to show that they had acted in self-defense, and which tended to show that Joe Kutler had made threats of violence against them. Albert P. Allen, one of the defendants, testified as follows:
“Q. Mr. Allen, what had you heard about his being a quarrelsome and vicious man? A. I have heard that he beat Mr. Horning up and gouged his eyes nearly out. I have heard that he tried to kill his wife and some of his children and I have also heard that summer that I was up there that he had broken her arm and knocked the youngest boy, Buford, down with the bridle bit and I have also heard that he killed a man and his wife and child for a mule team, wagon and harness.
“Q. When did you learn of these, before or after you went over there that morning? A. Before.
“Q. Did you hear of any other acts that you have not detailed? A. Yes, sir.
“Q. What? A. Well, I have heard that he chewed several other fellows up.
“Q. Well, if you have any other things that you heard just tell them to the jury, Mr. Allen. A. I don’t believe there is any more that I remember of now.
“Q. That is all the acts that you remember of that you heard? A. Yes, sir.
“Q. I will ask you if you heard these generally discussed in the neighborhood and vicinity? A. Well, I hardly ever went any place where Mr. Kutler was spoken of but what some' one could tell me something of that kind he had done. That he was into trouble always.”
That evidence was objected to by the state, and the objection was overruled by the court. Of that, the state complains.
Under a charge of murder where self-defense is pleaded and evidence has been introduced sufficient to raise a doubt concerning the defendant’s having acted in self-defense, evidence may be introduced to show the general character of the deceased for ferocity and brutality. (Wise v. The State, 2 Kan. 419; The State v. Riddle, 20 Kan. 711; The State v. Scott, 24 Kan. 68; The State v. Keefe, 54 Kan. 197, 38 Pac. 302; The State v. Spangler, 64 Kan. 661, 68 Pac. 39.) But that does not answer the complaint of the state. Its complaint is that the defendant should not havé been permitted to prove particular instances of violence or viciousness on the part of the deceased toward other persons, which did not concern the defendant, at which he was not present, and of which he had no personal knowledge. On this question the defendant cites The State v. Burton, 63 Kan. 602, 66 Pac. 633; and the state cites The State v. Long, 103 Kan. 302, 307, 175 Pac. 145. In The State v. Burton, this court used the following language:
“Information conveyed before the killing to a party on trial for murder, who justifies on the ground of self-defense, that the deceased was a violent and turbulent man and accustomed to go about armed, is admissible, whether the informant gained his knowledge from general reputation of the deceased or from personal observation of his specific acts. The rule that bad character in the respect mentioned can be established only by general reputation of the deceased in the community has no application to the admission of such testimony. It is competent for the purpose of determining the state of mind of the accused at the time of the homicide, and whether he was induced to believe, in good faith, that he was in imminent danger of death or great bodily harm at the hands of the person killed.” (Syl. ¶ 3.)
In The State v. Long (supra) this language is found:
“The defendant complains that he was not permitted to show specific acts of personal violence on the part of Loekridge, nor to show that knowledge of these acts had been previously communicated to the defendant. Evidence was introduced on rebuttal which tended to show that Lock-ridge was a quarrelsome, turbulent, and dangerous man. This was done by showing his general reputation.
“ ‘Where character evidence is offered in support of the contention that the deceased was the aggressor or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times. It may not be shown that the deceased had engaged in frequent fights in which he used deadly weapons, and therewith made deadly assaults on his antagonists.’ (13 K. C. L. 919.) (See, also, 6 Ency. of Ev. 780; 1 Wigmore on Evidence, §§ 63, 246.)
“The defendant .was not permitted to answer the following question:
“ ‘I will ask if you had heard conversations, by persons round in that community, with reference to his being a turbulent, and quarrelsome and dangerous man?’
“The question was a proper one, and should have been answered. (The State v. Burton, 63 Kan. 602, 66 Pac. 633; Note, L. R. A. 1916 A, 1245.)” (p. 307.)
These decisions determine that the evidence complained of was admissible for the purpose of showing the state of mind of the defendants at the time of the homicide.
3. The state complains of the following instruction given by the trial court:
“You are instructed that if you find from the evidence that the deceased had made threats against the defendant, which, if carried into execution, would endanger his life or subject him to great bodily harm, and that defendant in good faith feared, or had reason to fear, that such threats were liable to be carried into execution; or, if you find from the evidence, that deceased was a quarrelsome, dangerous man and defendant had knowledge of such fact and in good faith feared that an attack might be made upon him by deceased should he assert a claim of ownership to the mule in the possession of deceased, then the defendant might lawfully arm himself with a deadly weapon either in anticipation of such threats being carried into execution; or, on account of the dangerous character of the deceased he was liable, for the reasons stated, to be forced to repel a deadly and dangerous assault at the hands of the deceased, which had not been intentionally provoked or brought on by the defendant.”
The record discloses that the difficulty between the deceased and the defendants arose over the disputed ownership of a mule that was in the possession of the deceased; that on May 18, 1918, the sheriff of Greeley county, the county in which the homicide occurred, defendant Albert Allen, and Joe Kutler, together examined the mule, and that Allen and Kutler each claimed it. The record further discloses that on the day Joe Kutler was killed, May 25, 1918, the defendants armed themselves and went to the home of Joe Kutler to talk with him and try to get the mule without any trouble. The fault with the instruction is, that according to it the defendants had a right to arm themselves and go to Kutler’s home to get the mule, when the evidence tended to prove that they had reason to believe that an interview with Kutler would bring on an altercation and a possible necessity for killing him in self-defense. The Allens had a right to obtain possession of the mule, if it was theirs, if they could do so without committing a trespass or a breach of the peace. In 3 Blackstone’s Commentaries, page 4, this rule is stated as follows:
“Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one’s wife, child, or servant: In which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. The reason 'for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice; his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again, without force or terror, the law favors and will justify his proceeding. But, as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided, that this natural right of recaption shall ’never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; b-ut I can not justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.”
The evidence of the defendants tended to show that Kutler was a violent man; that he had made threats against the defendants; that they had information concerning those threats; that they armed themselves; that they went to Kutler’s home; that they got into an altercation with him; that an encounter ensued which resulted in Kutler’s death; and that they had reason to believe that their visit to Kutler’s home would result in an altercation and a possible encounter in which it might be necessary for them, in self-defense, to take Kutler’s life. They •had no right to go to Kutler’s home in that manner under those circumstances. (Clark’s Criminal Law, 168; Wallace v. United States, 162 U. S. 466, 472; Reed v. The State, 11 Tex. App. 509.) In the opinion of the court the instruction was erroneous.
The appeal is sustained.
Burch, J. dissents.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment in a condemnation proceeding to condemn land for the Kansas turnpike project.
On June 1, 1955, the Kansas Turnpike Authority, as authorized by G. S. 1955 Supp., 68-2006, instituted a proceeding under the provisions of G. S. 1949, 26-101 et seq., in the district court of Wyandotte County, to condemn land, belonging to Elmer Tinberg and Clara Tinberg, for turnpike project purposes. Thereafter, and on October 22, 1955, the Authority instituted a second proceeding in the same court to condemn land from the same tract for further project purposes. Timely appeals, as permitted by G. S. 1949, 26-102, were taken from appraisements of these two tracts of land by both the Authority and the landowners, resulting in the filing of two separate cases in the district court of Wyandotte County.
On March 21, 1956, some ten months after its initial action, the Authority instituted a third eminent domain proceeding in the district court of Wyandotte County, to condemn land from the same tract for additional turnpike project purposes. After the award by appraisers in this proceeding the Authority, on April 9, 1956, perfected an appeal to the district court, which was filed and docketed as a separate action. On the same date, although the first two appeals had been set for trial on a day certain, the Authority filed a motion to consolidate all three actions for purposes of trial. After a hearing this motion was sustained as to the two cases that had been set for trial and denied as to the third.
The trial of the consolidated cases commenced on April 16, 1956. It continued for approximately four days. At that time, all parties having introduced their evidence, the court gave written instructions, to which no objections were made. Thereafter the cause was submitted to the jury which, in due time, returned a general verdict in favor of plaintiffs in the sum of $13,715.00 together with its answers to special questions, submitted by the court, which read:
“QUESTION No. 1: What do you find to be the highest and most advantageous use of plaintiffs’ entire tract consisting of 57 aeres, as of June 30th, 1955? ANSWER: Subdivide into acreage tracts.
“QUESTION No. 2: What do you find to be the reasonable market value of the plaintiffs’ entire tract consisting of 57 acres immediately prior to June 30, 1955? ANSWER: $28,500.00.
“QUESTION No. 3: What do you find to be the reasonable market value of the 13.02 acres taken by the defendant as of June 30, 1955? ANSWER: $10,415.00.
“QUESTION No. 4: Do you find there to be any reduction in market value of the remaining 44 acres of the plaintiffs’ land immediately after June 30, 1955? ANSWER: Yes.
“QUESTION No. 5: If you answer Question No. 4 above in the affirmative, state:
“(a) The market value of the remaining 44 acres immediately prior to June 30, 1955. ANSWER: $22,000.00.
“(b) The market value of the remaining 44 acres immediately after June 30, 1955. ANSWER: $18,700.00.”
Thereupon the trial court approved the general verdict and rendered judgment in accord therewith.
Following action, as heretofore indicated, defendant filed a motion to set aside finding No. 3; a motion for judgment on findings Nos. 2 and 5, notwithstanding the verdict; a motion to set aside the verdict and grant a new trial for lack of evidence to sustain the answer to special question No. 3; a motion to modify the general verdict to conform to the special findings of the jury; and a motion for a new trial, one ground of which charged that the general verdict and the answers to special questions were contrary and inconsistent, one with the other. Upon the overruling of all these motions defendant gave notice it was appealing from the judgment and the rulings on all motions, heretofore mentioned, thus bringing the cause to this court for appellate review.
At the outset, conceding that there were three separate appraisements from which there were a like number of appeals, that our statute (G. S. 1949, 26-102) provides that in eminent domain pro ceedings the appeal from each appraisement shall be docketed and tried the same as other actions, and that there were three condemnation actions pending between the Authority and the involved landowners, appellant contends that because all three proceedings involved the same tract of real estate the trial court was required to consolidate such actions for trial, even though two of such actions had been set for trial before issues could be joined in the third, hence its action in refusing to do so was erroneous. Otherwise stated, appellant’s position is that, regardless of the existing facts and circumstances, where two or more condemnation actions, involving the same tract of land, have been docketed in district court the trial court has no discretion whatsoever in assigning those actions for trial but must, as a matter of law, consolidate the actions for trial purposes where the condemner has requested action of that character.
The question thus raised has been decided contrary to appellant’s position in one of our latest decisions which holds the rule followed in the consolidation of eminent domain cases for trial is not one of substance but one of procedure and that under such rule the trial court is not obliged as a matter of substantive law to consolidate appeals brought under provisions of the eminent domain statute. See Moore v. Kansas Turnpike Authority, (This day decided), 181 Kan. 51, 310 P. 2d 199, where, in dealing with the subject and in rejecting a similar contention, we said:
“. . . In this jurisdiction the rule followed in consolidation of cases for trial is not one of substance but one of procedure. G. S. 1949, 60-765, provides:
“ ‘Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no cause be shown the said several actions shall be consolidated. The order for consolidation may be made by the court or by a judge thereof in vacation.’
“One of the requirements of the consolidation statute is whether or not the actions could have been joined in the first instance. G. S. 1949, 60-601, provides:
“ ‘The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of actions so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.’
“Motions for consolidation under these statutes are in the sound discretion of the trial court. (Railway Co. v. Hart, 7 Kan. App. 550, 51 Pac. 933; Rice & Floyd v. Hodge Bros., 26 Kan. 164; and Todd v. Central Petroleum Co., 153 Kan. 550, 112 P. 2d 80.)” (p. 59.)
In the face of the facts of record we have no difficulty in concluding the trial court did not abuse its discretion in refusing to consolidate the third of these condemnation actions with the two which it had previously set down for trial. Therefore, adherence to the rule announced in the case from which we have just quoted compels a conclusion the trial court committed no error in refusing to consolidate all three of such actions for trial.
Another question, raised by appellant in the court below and here subject to review, presents a far more serious issue than the one just decided and, for reasons to be presently disclosed, will be determined out" of the order in which it is argued. It is that the special questions are inconsistent with each other and with the general verdict, hence the verdict and answers to such questions cannot stand and a new trial must be granted. If the record sustains the factual premise on which appellant bases its position on this point there can be no question regarding the law applicable to its disposition.
The rule of this jurisdiction, so well established as to hardly require' a citation of the decisions supporting it, is well-stated in McCoy v. Weber, 168 Kan. 241, 212 P. 2d 281, where it is held:
“Consistent special findings control th^ general verdict when contrary thereto but when they are inconsistent with one another — some showing a right to a verdict and others showing the contrary — the case is left in the condition of really being undecided and a new trial should be granted.” (Syl. ¶ 2.)
For other decisions of like import, and without attempting to exhaust the field, see Willis v. Skinner, 89 Kan. 145, 130 Pac. 673; Berry v. Weeks, 146 Kan. 969, 73 P. 2d 1086; In re Estate of Erwin, 170 Kan. 728, 228 P. 2d 739; Denman v. Colorado Interstate Gas Co., 179 Kan. 180, 184, 294 P. 2d 207; King v. Vets Cab, Inc., 179 Kan. 379, 385, 295 P. 2d 605, and numerous other decisions therein cited.
With the rule established we turn directly to the question raised by appellant, noting as we do so, that where — as here — all the landowner in a condemnation proceeding is entitled to receive is compensation for the market value of the land taken and damages for the difference in value of the remainder of the tract before and after the appropriation (See, e.g;, Smith v. Wyandotte County, 113 Kan. 244, 214 Pac. 104; Case v. State Highway Comm., 156 Kan. 163, 166, 131 P. 2d 696; Mai v. City of Garden City, 177 Kan. 179, 277 P. 2d 636; Simmons v. State Highway Commission, 178 Kan. 26, 30, 283 P. 2d 392.) the extent of his recovery is limited, in any event; to the reason able market value, immediately prior to the appropriation, of the entire tract involved. In other words diminution in value of the land remaining after appropriation and the value of that taken in a condemnation proceeding can never exceed the market value of the entire tract involved, otherwise there would be a taking of the entire tract for all practical purposes of the condemnation.
Having reached the conclusion just announced it becomes apparent that in the instant case the jury was required to give consideration to three composite elements in order to determine the amount of the appellees’ recovery, i.e., the market value of the land taken; diminution in value of that remaining, based on difference in value of the tract remaining, before and after the appropriation; and the market value of the tract remaining after the appropriation, the sum total of which three elements, when added together, could not exceed the market value of the entire tract immediately prior to the taking.
It appears from the answers to the special questions that, after determining the market value of the entire tract (See Questions Nos. 1 and 2), the jury gave consideration to all three of the elements to which we have heretofore referred. In the answer to special question No. 3 it found the reasonable market value of the tract taken was $10,415. By its answers to question No. 5 (a) and (b) it determined that the injury to and depreciation of the remainder of the tract, resulting from the appropriation, amounted to $3,300. And by its answer to question No. 5 (b) it found that the market value of the remaining 44 acres was $18,700. Thus, by the simple process of addition, it becomes obvious that the jury found that the sum total of the value of the land taken, damages to the remainder, and the market value of the remainder, amounted to $32,415, exceeding by $3,915, the amount fixed by it as the value of the entire tract immediately prior to the appropriation. Nor can it be said, as appellees suggest, that the special questions when considered, singly or collectively, are consistent with the general verdict. When the amount of the verdict ($13,715) is added to $18,700, the amount found to be the value of the land remaining, we arrive at a total of $32,715, which exceeds by $3,915, the value of the entire tract involved as fixed by the jury in its answer to question No. 2.
In our opinion what has been heretofore stated demonstrates beyond all doubt that the answers to the special questions are inconsistent with each other and with the general verdict. There fore application of the rule, to which we have heretofore referred, requires that the judgment be reversed and the cause remanded for a new trial.
We find nothing in contentions advanced by appellant to warrant a conclusion it is entitled to judgment on the special findings. Nor do we agree with appellees’ position that the answers to special question No. 5 (a) and (b) are immaterial to the issues involved on appeal and for that reason should be disregarded. All other claims of error relied on relate to alleged trial errors which, since the case is to be retried in the court below, need neither be considered nor discussed.
The judgment is reversed and the cause remanded with directions to grant a new trial.
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The opinion of the court was delivered by
Robb, J.:
Appellee commenced an action in the district court to condemn a parcel of appellants’ land for highway purposes. The appraisers allowed damages to appellants in the approximate sum of $5,539.00, which amount was thereafter paid in to the clerk of the district court by appellee. On April 21, 1954, appellants appealed from the award. The appeal was pending in the district court where it had been set for trial and continued a number of times until May 23, 1955, when it was dismissed by the court without prejudice. (G. S. 1949, 60-3105.)
On June 10, 1955, appellants filed a motion to reinstate the appeal in the district court, which was denied on June 13, 1955, from which ruling an appeal was immediately taken by appellants to this court. On November 16, 1955, we dismissed that appeal and there has been neither a motion, nor an order made to reinstate that appeal in this court.
In the meantime and on November 2, 1955, appellants had filed a new and separate action in the district court seeking damages in the sum of $8,000 for the taking of their land. This case was fully tried before a jury over appellee’s objection that the court lacked jurisdiction and because of lis pendens. The jury returned a verdict in favor of appellants in the sum of $4,203.90. Appellants’ motion for new trial was overruled and the trial court approved the verdict and rendered judgment in accordance therewith. Appellants, feeling aggrieved, filed this appeal therefrom and while they assert two specifications of error, it is admitted there is only one question involved. Did the trial court have jurisdiction to try the case or was the. proceeding null and void?
A rather unusual situation is here presented in that appellants have an award in the approximate sum of $5,539.00 from the appraisers in the eminent domain proceeding for condemnation of their land for highway purposes, and also a judgment of $4,203.90 against appellee for the same taking. Appellee complains of the fact that in this appeal it is now met with the same reasoning and authorities it advocated all through the latter litigation to defeat appellants’ alleged cause of action. In other words, this judgment of $4,203.90 has caused the parties to assume directly opposite positions.
This proceeding was not considered by the trial court as a new and independent action under the so-called saving statute (G. S. 1949, 60-311) which provides for such an action to be commenced within one year after a plaintiff’s original action has failed other than upon its merits. Indeed from the journal entry the contrary situation appears to exist in that the present case was held by the trial court to be a reinstatement of the aforementioned appeal from the award of the appraisers. We agree with the trial court that the saving statute from its very terms would not apply under such a situation as the one with which we are here confronted. Consequently, we shall not discuss this point further except to add that the eminent domain statutes (G. S. 1949, chapter 26, article 1) are special statutes providing for their own procedure, and G. S. 1949, 60-311 is, of course, not included therein.
Regarding the determination by the trial court that this action was no more than an application to reinstate the original appeal, we must bear in mind that appellants there appealed to this court from the trial court’s order denying an original motion to reinstate, which appeal was later dismissed and abandoned. To follow the trial court’s theory would result in our allowing a separate action to obtain a second appeal, for which theory there is no statutory or case-law justification.
The appellants had taken an appeal to the district court which, right or wrong, had been dismissed by that court and that door was thereby closed to them by their own failure to prosecute the appeal to this court from that order. We note the trial court’s dismissal of the original appeal from the appraisers’ award was dated May 23, 1955, which dismissal became final by reason of what has been herein said. The terms of the district court in Anderson county commence on the first Monday in March, the second Monday in June, and the second Monday in October. (G. S. 1955 Supp. 20-1004a.) Thus we see that May 23, 1955, was in the March, 1955, term of court and any change had to be made in the record thereon prior to the second Monday in June, 1955, which that year fell on June 13. It is of little or no consequence, but in order not to overlook anything, we note again that on June 13, 1955, the trial court overruled appellants’ original motion to reinstate. The present action was commenced on November 2, 1955, which was during the second term after the trial court’s order of dismissal on May 23, 1955, so that no order could have been made in this action by the trial court during its March, 1955, term. Thus it must be recognized the jurisdiction and power of the trial court to modify its order of May 23,1955, in any manner, had ceased. (6 West’s Kansas Digest, Judgment, § 299; 3 Hatcher’s Kansas Digest, rev. ed., Judgments, §229.)
Now we come to the climax of our problem which is whether the trial court had any jurisdiction to consider this case. All through the proceeding the jurisdiction of the court was challenged by the parties — first by appellee in the court below, and then by appellants on this appeal. We have considered and agree with the authorities cited on the point that a party who invites error and profits thereby cannot later be heard to challenge a trial court’s ruling or judgment on appeal. (Meyer Sanitary Milk Co. v. Casualty Reciprocal Exchange, 145 Kan. 501, 66 P. 2d 619; Hawkins v. Wilson, 174 Kan. 602, 605, 257 P. 2d 1110.) Likewise we have noted those cases where both parties submitted to the jurisdiction of a court in a divorce action and later the prevailing party questioned the judgment. We have held this cannot be done. (Bledsoe v. Seaman, 77 Kan. 679, 95 Pac. 576; Wible v. Wible, 153 Kan. 428, 110 P. 2d 761.) Our present situation is not covered by either of these types of cases.
Appellee contends that the trial court had jurisdiction of the subject matter conferred upon it by appellants when they obtained the judgment appealed from. The decisions of this court are to the contrary (City of Hutchinson v. Wagoner, 163 Kan. 735, 740, 186 P. 2d 243; 2 Hatchers Kansas Digest, Courts, § 9, pp. 148, 149) and it would serve no good purpose to deviate from this rule. The trial court should not have considered this as a reinstatement of the appeal and it will not be so recognized by this court. No jurisdiction of the subject matter was conferred upon the trial court by what the parties did and the ultimate judgment was void.
The judgment of the trial court is reversed with directions to set the verdict and judgment aside and dismiss the action.
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The opinion of the court was delivered by
Hall, J.:
This is a condemnation appeal.
The Kansas Turnpike Authority instituted an eminent domain proceeding against the appellees’ land in Butler County, Kansas. The appellee land owners had appealed the award of the appraisers to the district court and the jury returned a verdict in their favor. The Kansas Turnpike Authority now appeals and makes five specifications of error.
The first is that the court erred in admitting certain evidence over objection which was incompetent, irrelevant, immaterial, and prejudicial to the Turnpike.
In the trial below, the appellee land owners called farmer-neighbor witnesses to testify as to the value of their land. Without going into the detail of the testimony, the Turnpike objected and asked that the testimony of several of those witnesses be stricken because no proper foundation had been laid to make the opinions of these witnesses competent on the value of appellees’ land. The Turnpike objected principally because no specific question was asked as to the witnesses’ knowledge of land values in the community. The court overruled the objection and this ruling is now specified as error.
An examination of the record shows the foundation laid was questionable as to several of the witnesses; however, it is conceded by the Turnpike and the record also shows, there were other farmer-neighbor witnesses whose testimony was fully competent to substantiate the verdict of the jury.
Under these circumstances this court has repeatedly held that a verdict or finding of fact made by the trier of facts and supported by the evidence will not be disturbed on appeal. (Dryden v. Rogers, 181 Kan. 154, 309 P. 2d 409; Wood v. Board of County Commissioners, 181 Kan. 76, 309 P. 2d 671; Ripley v. Harper, 181 Kan. 32, 309 P. 2d 412.)
An examination of the record also does not show the ruling of the court complained of prejudicially affected defendant’s substantial rights and we would not disturb the judgment unless such prejudice affirmatively appears (G. S. 1949, 60-3317; Booker v. Kansas Tower & Light Co., 167 Kan. 327, 205 P. 2d 984; Birt v. Drillers Gas Co., 177 Kan. 299, 279 P. 2d 280; Siegrist v. Wheeler, 178 Kan. 286, 286 P. 2d 169; Koch v. Suttle, 180 Kan. 603, 306 P. 2d 123).
The Turnpike Authority next specifies as error the exclusion of certain competent, relevant, material and proper evidence offered by the appellant.
The Turnpike Authority condemned some 21.97 acres across the northwest corner of appellees’ section of land. Some years previously the State Highway Commission and a railroad had condemned a strip of land running roughly from the northeast corner to the southwest corner of the section. Approximately 205 acres of the section of land lay to the southeast of the railroad and highway while the balance of the section lay to the northwest. The witnesses for the appellees testified as to the value of the land before the taking, the value of the land taken, and, of course, also as to the value of the land remaining after the taking. The Turnpike objected that their testimony covered the entire section including the 205 acres. The appellees contended the witnesses were considering the farm as a total “unit” and the witnesses were entitled to include in their testimony the value of and damage to the 205 acres. The Turnpike Authority attempted on cross-examination to go into the consideration given by the witnesses “to the effect of the previous separation” by the railroad and highway on the value of and damage to the 205 acres of land. The court sustained objection to a continuation of this line of cross-examination. The Turnpike Authority contends the court abused its discretion and relies on one of our recent cases (Bourgeois v. State Highway Commission, 179 Kan. 30, 292 P. 2d 683).
On the facts of the Bourgeois case the court did hold that there had been an abuse of discretion but an examination of the record here does not show an abuse of discretion. The Turnpike Authority was not denied the right of cross-examination but rather was limited in its pursuit of cross-examination. On cross-examination each witness was asked and answered whether he had taken into consideration the previous separation by the railroad and highway. In fact several of the witnesses were examined rather extensively on the point and the witnesses answered before the court sustained objection to a continuation of the cross-examination.
The Turnpike Authority correctly states the general rule that great latitude should be afforded counsel on cross-examination but the court also has authority to exercise some control over it and unless it affirmatively shows that the court abused its discretion in so limiting it the ruling will not be disturbed on appeal. There is no such, affirmative showing as far as the record here discloses. (Bourgeois v. State Highway Commission, supra; State v. Stewart, 179 Kan. 445, 296 P. 2d 1071; and Hillebrand v. Board of County Commissioners, 180 Kan. 348, 304 P. 2d 517.)
The court said in the Hillebrand case:
“Another contention is that statements of a clerk of the zoning board were binding on the body under G. S. 1949, 19-2903, but there is no showing that the clerk was the statutory secretary of the board and whatever may have been said did not appear in the record. A further claim was made that testimony on cross-examination was unduly restricted in regard to a subsequent subdivision platted by the same applicant as the one named here in which subdivision business establishments were not allowed. Bourgeois v. State Highway Commission, 179 Kan. 30, 292 P. 2d 683, was cited on this point, but we fail to see any analogy between that case and the one now before us.
“The more applicable rule in our case is that absent a showing of abuse of discretion on the part of a trial court, the extent to which a witness may be examined is within the sound discretion of the court and its ruling will not be disturbed on appeal. (State v. Stewart, 179 Kan. 445, 453, 296 P. 2d 1071.)” (p. 350.)
The Turnpike also specifies as error the overruling of its motion for new trial, motion to set aside verdict and answers to special questions, and in sustaining appellees’ motion for judgment upon the verdict and special questions.
The point at issue in these three specifications of error is that the special questions answered by the jury were inconsistent with each other and with the general verdict.
The jury returned a general verdict for $16,214.60. It also answered five special questions pertaining (1) to the highest and best use of appellees’ property before the taking, (2) the fair and reasonable market value of the entire acreage before the taking, (3) the fair and reasonable market value of the acres taken, (4) the fair and reasonable market value of the acres remaining before the taking, and (5) the fair and reasonable market value of the acres remaining after the taking.
All of the answers to the special questions were consistent with the general verdict except the answer to question number two, the fair and reasonable market value of the entire acreage before the taking, which was admittedly a clerical error by the jury and could not have been substantiated by the evidence.
The court regarded it as mere surplusage and approved the verdict. The court said:
. . we could eliminate question no. 2 from these answers entirely because the rule is . . . the difference between the balance immediately before the taking and the value of the balance after the taking, plus the value of the property taken. . . . We don’t need that second question at all. We put it in there, hut I don’t think it makes any difference how you look at it to figure these things. The proof of the fact that you don’t need it . . . it came out with the general verdict. . .
Appellees urge the application of the rule that when the answers to special questions are inconsistent with each other and with the general verdict that neither is controlling and there must be a new trial. (McCoy v. Weber, 168 Kan. 241, 212 P. 2d 281; Tinberg v. Kansas Turnpike Authority, 181 Kan. 139, 310 P. 2d 217.)
We do not believe this rule applies. We agree with the trial court that question two was mere surplusage. The answers to the balance of the special questions were consistent with each other and with the general verdict. Under these circumstances we apply the rule that a general verdict in favor of a party to an action imports a finding in his favor upon all issues in the case. The special findings will be given such construction, as possible, that will bring them in harmony with the general verdict and if one interpretation leads to inconsistency and the other.to harmony with the general verdict the latter is to be adopted. The general verdict may be set aside only when the special findings are contrary to the verdict and compel judgment setting aside the general verdict as a matter of law. Unless the effect of special findings, when considered as a whole, is such as to overthrow the general verdict, the verdict must stand. Citing Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859; Johnson-Sampson Construction Co. v. Casterline Grain & Seed, Inc., 173 Kan. 763, 769, 252 P. 2d 893; Haddock v. Keller, 178 Kan. 299, 285 P. 2d 1093; King v. Vets Cab, Inc., 179 Kan. 379, 295 P. 2d 605.
After careful examination, we find no reversible error in the record of this case. Some technical errors may have been committed through the process of the trial but following a well established rule of this court such technical errors will not cause a reversal unless the record reflects that the complaining party has sustained the burden of showing that his case has been materially affected or prejudiced thereby. (Steck v. City of Wichita, 179 Kan. 305, 295 P. 2d 1068.)
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
The question here involves the construction of a deed. On October 26, 1937, the owners thereof conveyed by warranty deed all of Lot 3, Bel-Air Acres, a subdivision in Johnson County, Kansas, to Katherine Birrell, a single woman.
On July 27, 1938, Katherine executed a warranty deed, the material portions of which read as follow:
“This Indenture, Made this 27th day of July in the year of our Lord nineteen hundred and Thirty-eight between Katherine Birrell, a single woman, of the County of Johnson and State of Kansas of the first part, and Elizabeth Rooth, as a joint tenant with the grantor herein, with the remainder to the survivor, of the County of Johnson and State of Kansas of the second part.
“Witnesseth, That the said party of the first part, in consideration of the sum of — one dollar and other valuable considerations — dollars, to her duly paid, the receipt of which is hereby acknowledged, has sold and by these presents does grant and convey unto the said party of the second part, her heirs and assigns, all that tract or parcel of land situated in the County of Johnson and State of Kansas, described as follows, to-wit:
“An undivided one half interest in and to:
All of Lot three (3), Bel-Air Acres, a subdivision in Johnson County, Kansas, according to the recorded plat thereof.
Subject to the restrictions and encumbrances of record.
It is expressly provided that in case of the death of either the said Katherine Birrell, party of the first part, or Elizabeth Rooth, party of the second part, the entire fee simple title to said real estate shall immediately pass to and vest in the survivor of them, absolutely.”
This deed was duly recorded on the day of its execution.
The property in question was held by Katherine and Elizabeth until Katherine’s death, intestate, on June 27, 1954.
On September 3, 1954, Elizabeth executed a warranty deed purporting to convey to plaintiffs Siegel the entire interest in the property.
A question having arisen concerning the construction of the deed of July 27, 1938, from Katherine to Elizabeth, the Siegels commenced the instant proceeding in the nature of a claim against Katherine’s estate, and the parties by appropriate pleadings joined issue on the question.
In other words, the matter amounts to this: If the deed from Katherine to Elizabeth conveyed the entire interest in Lot 3 in joint tenancy with remainder to the survivor, Elizabeth became the owner of such entire interest upon Katherine’s death. On the other hand, if that deed conveyed only an undivided one-half interest in Lot 3 to Elizabeth in joint tenancy with remainder to the survivor, Elizabeth, upon Katherine’s death, became the owner of only an undivided one-half interest in the property, and the other undivided one-half interest was a part of Katherine’s estate.
The trial court construed the deed to create a joint tenancy with right of survivorship in an undivided one-half interest in and to Lot 3 in Katherine and Elizabeth, and held that following Katherine’s death Elizabeth became the owner of an undivided one-half interest, with the result that Katherine’s estate was the owner of the other undivided one-half interest.
From this ruling plaintiffs Siegel have appealed, specifying as error the orders of the trial court excluding evidence relating to the intention of the parties and rendering the judgment that it did.
At the trial of the case plaintiffs introduced considerable evidence concerning the close relationship between Katherine and Elizabeth; that Elizabeth had in fact paid the entire purchase price at the time the property was conveyed in 1937 to Katherine; that it was the intention of both Katherine and Elizabeth that the survivor of them should have ownership of the entire interest in the lot in question; that the deed from Katherine to Elizabeth was prepared by a then practicing attorney of their choice with that idea in mind, and that if a literal wording of the deed is that it conveyed to Elizabeth only an undivided one-half interest in joint tenancy then such was a mistake on the part of all parties concerned.
It is to be noted that if this proceeding be considered as one to reform a deed on the ground of mutual mistake it was filed too late. The deed was executed July 27, 1938, and this action was not commenced until after Katherine’s death in 1954. G. S. 1949, 60-306, Sixth, provides.that:
“An action for relief not hereinbefore provided for can only be brought within five years after the cause of action shall have accrued.”
This section has been held to apply to an action to reform a deed on the ground of mutual mistake, and it has been held that the statute commences to run from the date the mistake is made. (Travis v. Glick, 150 Kan. 718, 96 P. 2d 624; Collins v. Richardson, 168 Kan. 203 [Syl. 5 and p. 209], 212 P. 2d 302.)
Plaintiffs insist the deed is ambiguous and inconsistent in that the intention appears to be to convey two interests — first, the onelialf interest described, and second, the remainder of the property to the survivor — and direct our attention to Bennett v. Humphreys, 159 Kan. 416, 155 P. 2d 431, and Kennedy v. Monroe, 165 Kan. 168, 193 P. 2d 220, as authority for the proposition that where a deed is ambiguous as to the intention of the grantor all of the surrounding facts and circumstances attendant upon its execution will be considered in order to ascertain and carry out the intent of the parties, and it is contended the court erred in disregarding the evidence which clearly showed the intention of the parties, including that of the scrivener, to be that upon the death of either Katherine or Elizabeth the survivor was to have ownership of the entire interest in and to the property in question.
On the -other hand, we are confronted with the equally well-established rules stated in the recent case of Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039, in which it was said the presumption is that all oral understandings and agreements leading up to the execution of a deed are merged in the deed; that in construing a warranty deed the terms of which are unambiguous the meaning and intention are to be derived from a consideration of the entire instrument; that if the terms of a deed are clear and unambiguous resort to rules of construction applicable to instruments which are not clear as to meaning, is not had, and that ambiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning, (p. 636. ) The word “ambiguity" also has been defined to be duplicity, indistinctness or uncertainty of meaning of an expression used in a written instrument. (Barrett v. Coal Co., 70 Kan. 649, 654, 79 Pac. 150.)
In our opinion it may not be said the language of this deed is ambiguous, thus permitting the introduction of evidence to establish what is claimed to be the true intent of the parties. Plaintiffs contend, in substance, that the language “the entire fee simple title to said real estate” overrides and supercedes the description. We are unable to agree. The deed specifically describes the property conveyed as “An undivided one half interest in and to” the lot in question. The words “the entire fee simple title” refer to the type or extent of title of that conveyed rather than to the amount of land conveyed. The words “said real estate” refer to “An undivided one half interest in and to” the lot in question, that being the description of the amount conveyed.
Such being the case, the trial court did not err in excluding or disregarding evidence relating to the intention of the parties.
As applied to a case such as this, the reason for the rule announced is obvious, and were it otherwise little protection would be afforded by the rule against modification of the terms of a written instrument by parol testimony. After careful consideration of the provisions of the deed in question, and of plaintiffs’ contentions, we are unable to arrive at a conclusion different from that reached by the trial court, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover damages for injuries sustained in a collision between two motor vehicles. The defendant prevailed and the plaintiff appeals.
The pleadings are not in controversy and require little attention. However, since they outline the issues, brief reference will be made thereto.
After reciting plaintiff was a resident of Butler County, Kansas, that the defendant was an insurance association organized and existing under the laws of the State of Iowa, and that on the date in question one Voyd Bourne of Burden, Kansas, was insured by the company for public liability as a common and contract carrier of property, the petition alleges that the proximate cause of the injuries sustained by plaintiff in the collision were due to divers acts of negligence on the part of such Bourne, while driving his motor vehicle, a cattle truck, upon the public highways.
The answer admits the existence of a policy of insurance covering operations of Bourne, as alleged in the petition, denies that individual’s operation of his motor vehicle was the proximate cause of the collision, and charges that the proximate cause of such collision and any damages sustained therein by plaintiff resulted from his own contributory negligence and divers acts of negligence (describing them) in driving his automobile on the highway, which preclude his recovery.
Plaintiff’s reply to the answer denies the allegations of that pleading and renews his request for the damages claimed in his petition.
Due to the nature of contentions advanced by the parties the facts are highly important to a proper understanding of the issues involved. Therefore we give our immediate attention to the factual picture disclosed by the record.
The involved collision occurred four miles west of Augusta, Kansas, at approximately 12:30 p. m. on October 11, 1954, at a point where U. S. Highway 54, hereinafter referred to as the highway, runs east and west through Augusta and intersects a north and south township road commonly referred to as the Santa Fe Lake Road, hereinafter referred to as the road. Although it had been in existence for many years as a two-lane trafficway the highway was then in process of construction as a four-lane highway with an island, approximately twenty feet in width, separating the old lanes of traffic from the two new lanes under construction, the latter being located to the north of the island and the previously existing portion of the highway.
Further facts are necessary in order to complete the picture re specting the existing road and traffic conditions as they existed at or near the scene of the collision on the date in question. The two old lanes of the highway crossed the road and were open for all east and west bound traffic, the north half of the slab being restricted to west going traffic and the south half restricted to east going traffic. The portion of the highway under construction ran parallel to the existing traffic lanes and also crossed the road. It was not open to public traffic but was being used by employees of the Koss Construction Company, of which the plaintiff was one, who were using it for construction purposes.' Thus it appears, that for all intents and purposes, there were actually two existing intersections on the highway and road near the scene of the accident on the date of the collision. One of these intersections, as has been previously indicated, was located where the portion of the highway open for public traffic crossed the road. The other was where the portion of the highway under construction crossed the same road.
There is some dispute between the parties as to whether these intersections were open to cross-over traffic at the time of the collision. We have examined the record on this point and have decided the existing facts and circumstances require a conclusion that they were.
We now turn to facts and circumstances leading up to and resulting in the collision.
Immediately preceding the collision, Bourne, the defendant’s insured, was driving a cattle truck, loaded with cattle and weighing 20,000 pounds, westerly on the north half of the old slab of the highway. As he approached the road he decreased the speed of his vehicle and signaled for a right-hand turn on such road. The plaintiff was also driving his Ford automobile in a westerly direction on the portion of the highway-which was then under construction. After giving his signal Bourne turned north on the road and proceeded in that direction until his truck had reached a point more than half way across the slab portion of the newly constructed highway. At that point plaintiff who had been driving his automobile down the newly constructed slab in a westerly direction, at a high rate of speed, entered the intersection, to which we have last referred, and collided with the truck. As the result of this collision plaintiff sustained the injuries to person and property for which he seeks recovery.
We are not here disposed to labor the facts respecting negligence on the part of either party. It suffices to say the day was clear, visibility was good, there were no obstructions to vision for about one-half mile east of the point where the accident occurred, and that there was ample evidence to sustain the jury’s answers to the effect each party was guilty of the negligence found by it in response to the special questions to which we shall presently make reference.
After a full and complete trial, disclosing facts as heretofore related, the cause was submitted, under instructions by the court, to a jury which returned a general verdict for the defendant along with its answers to special questions, to which no objection was made at the time of their submission. They read:
“1. When the plaintiff was proceeding east of the Lake Road and prior to the time he applied his brakes, at what speed was he travelling?
“Answer: Approximately 60 M. P. H.
“2. Was plaintiff’s speed immediately before the collision on the newly constructed highway, which was not open to the public, reasonable considering the condition of the highway and circumstances existing at the time and place?
“Answer: No.
“3. Do you find that the truck operated by Voyd Bourne on the Lake Road started to cross the newly constructed highway before the car driven by plaintiff had reached the Lake Road?
“Answer: Yes.
“4. If you answer the foregoing question in the affirmative, tiren state why the plaintiff failed to yield the right-of-way to the truck operated by Voyd Bourne.
“Answer: driving without due regard.
“5. At what speed was Voyd Bourne travelling as he proceeded north on the Lake Road across the newly constructed highway?
“Answer: 5 mi per 'hour.
“6. State the distance plaintiff was from the Lake Road when he saw or should have seen the Bourne truck proceeding on the Lake Road across the newly constructed road.
“Answer: 130 feet.
“7. When plaintiff saw or should have seen the Bourne truck proceeding on die Lake Road across the newly constructed road, what, if anything, prevented the plaintiff from preventing a collision?
“Answer: It was impossible to stop or alter his course in time to avoid a collision after the brakes were applied.
“8. Do you find that Voyd Bourne was guilty of any negligence as alleged in tire petition which was the proximate cause of the collision?
“Answer: Yes.
“9. If you answer the foregoing in the affirmative, then state what act or acts of negligence you find the said Voyd Bourne guilty of.
“Answer: An act of negligence was committed for failing to observe oncoming vehicle before entering new construction.
“10. Do you find the plaintiff, Marvin Cherry, guilty of any negligence which was the proximate cause of the accident?
“Answer: Yes.
“11. If you answer tire foregoing question in the affirmative, then state the act or acts of negligence you find the said Marvin Cherry guilty of.
“Answer: Driving without due regard.
“12. If you find for the plaintiff, how much do you allow for:
“Damage to the automobile.......................... $
“Loss of teeth, inconvenience, pain and suffering, permanent disability ................................. $
“Loss of wages.................................... $
“Medical and hospital bills:.......................... $
“Total amount allowed..............................
Following action as last above indicated plaintiff filed a motion to set aside the general verdict on the ground it was inconsistent with the special findings and a motion for a new trial. When these motions were overruled the trial court approved the general verdict and the answers to the special questions and then entered judgment thereon against the plaintiff and in favor of the defendant. Thereupon plaintiff perfected the instant appeal.
The first question raised by appellant has to do with the testimony of an expert witness. During the course of the trial John Fee, a highway patrolman, was called by the appellee as an expert. Appellant suggests this witness was not qualified to testify in that capacity. Let us see. Evidence qualifying the witness was to the effect Mr. Fee had been a Trooper for the Highway Patrol for the State of Kansas for ten years; that he had attended the Northwest Traffic Institute where he studied physical evidence pertaining to traffic on the highways; that he had attended several schools within the Patrol pertaining to traffic problems, and that he had personally made tests as to distances an automobile will travel at different speeds after the brakes had been applied. On the basis of this showing we do not believe the court erred in permitting such witness to testify as an expert.' However, the weight to be given his testimony was for the jury. (Denver v. Railway Co., 96 Kan. 154, 150 Pac. 562; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810, and other decisions cited in Hatchers Kansas Digest [Rev. Ed.], Evidence, §199.)
Next it is urged that the testimony of this witness was speculative, indefinite and vague and therefore erroneously admitted. In this connection it must be conceded that at the outset of his testimony Fee was handed two exhibits, one being a picture of skid marks on the highway and the other a picture showing the impact of the two vehicles involved, and was then asked a dual hypothetical question as to whether, assuming that the car that made the skid marks in one of the pictures was a 1953 Ford; that such marks were made in 1954 at the time of the accident; that the car had good brakes; that the skid marks were made on a concrete highway as there shown; that the car laid down 108 feet of skid marks; and after going 108 feet ran into the truck and did the damage shown in the other picture, he had an opinion as to the speed of the car at the time it hit the truck. The witness was permitted to answer this question in the affirmative over appellant’s objection the measurement of speed by impact of metals on each other, based on a picture, was purely speculative and therefore inadmissible. Following this answer he testified it was his opinion from experience with the damages done by automobiles that appellant’s car had to be traveling twenty miles per hour to do the damage disclosed by the picture at the time of the impact; also that it was his opinion, based on the question asked, and the picture of the skid marks left on the highway, that appellant’s car was traveling seventy miles per hour when he first made application of the brakes which caused the skid marks shown by the picture. Subsequently appellant cross-examined-Fee respecting whether it was mere conjecture on his part to say the Ford car was going one speed or another previous to the accident. During the course of this examination the witness stated he was basing his opinion on the tracks left and by looking at the picture of the skid marks left on the highway, and then said:
“The tracks in that picture and as shown to me, if that is the picture left by the Oherry vehicle, the Ford, are perfect black marks of brakes under perfect conditions. They would have to be to leave straight line marks like he is sliding. I am basing my opinion on those providing they are one hundred eight feet long which I don’t know.”
On the day following admission of the foregoing testimony the trial court, on its own motion, addressed the jury and said:
“Yesterday afternoon when Mr. Fee, the highway patrolman, was on the witness stand he was asked in regard to the speed of cars by the damage that was done to an automobile. I permitted that evidence to go in over the objection of the plaintiff. I think my ruling on that, any testimony Mr. Fee gave in regard to an estimated speed of an automobile by reason of the damage to the car, that he estimated by examining a picture, will be stricken from your consideration and you will not consider it. However the other testimony in regard to skid marks and things of that kind he testified to is proper for your consideration.” .
Appellant raises two questions respecting the foregoing testimony. First he contends it was error to permit Fee to estimate the speed of his automobile by reason of its condition after the accident, as shown by the picture, and that the court’s instruction to disregard any testimony of that character did not cure such error. Assuming, as he contends, it was error to introduce such testimony in the first instance, we are unable to concur in his view respecting the force and effect of the court’s instruction. The books are full of cases holding that an instruction to disregard testimony erroneously admitted cures what might otherwise afford sound ground for reversal of the judgment. (Townsdin v. Nutt, 19 Kan. 282; Ligiejko v. Niczyperowicz, 126 Kan. 675, 271 Pac. 282; Thompson v. Barnette, 170 Kan. 384, 391, 227 P. 2d 120; Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 59, West’s Kansas Digest, Appeal & Error, § 1053 [2].) This, we may add, is especially true where — as here — the record fails to make it affirmatively appear such instruction has been disregarded by the jury in reaching its verdict. Next it is argued Fee’s estimate speed, which we pause to point out, was pin pointed by appellant’s own cross-examination, based on the skid marks shown by the picture which, according to other testimony were 108 feet in length, was erroneously admitted for reasons previously stated. We do not agree. Under the conditions and circumstances heretofore related, and since as we have previously indicated the weight of such evidence is for the triers of fact, we have little difficulty in concluding that a witness qualified as an expert may give his opinion, based upon the length of skid marks as shown by a picture, as to the speed of a motor vehicle involved in an accident.
Directing attention to the trial court’s Instruction No. 1 we note it sets forth at some length the allegations of the answer and, we may add, just as fully the allegations of the petition. It is also to be noted that Instruction No. 2 states that the allegations of the parties, as set forth in their written pleadings, are not to be taken by the jury as any evidence of the truth or falsity of the parties and that such allegations must be proven by evidence from the witness stand. We fail to find anything in the record disclosing that appellant objected to Instruction No. 1 at the time it was given. Notwithstanding he now contends that such instruction was so erroneous as to require a reversal of the judgment.
In fairness to appellant it should be stated that most of his arguments on the point now under consideration hinge around the proposition that G. S. 1949, 8-550, providing, among other things, that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway, which is pleaded as a ground of negligence in the answer and set forth in the subsequent instruction, have no place in the case because it is his theory the old lanes of the highway and the newly constructed portion of such highway all constituted a single highway on the date of the accident, hence appellee in turning from the two lane highway onto the road and just prior to entering the newly constructed portion of such highway was not approaching an intersection. The trouble from appellant’s standpoint is that we are convinced the premise on which he bases all of these arguments is erroneous. Our view, contrary to his contention, is that insofar as these two drivers (Rourne and Cherry) were concerned, under the conditions and circumstances shown by the evidence to have existed at the time of the accident, the space where the highway under construction crossed the road was a highway intersection.
Having reached the conclusion just announced we have no trouble in deciding that the trial court did not err in including the major portion of the answer in Instruction No. 1. Such answer and, for that matter, the petition were both short and couched in plain, simple and understandable language. Moreover, the issues raised by such pleadings were, in our opinion, fairly presented to the jury by the Instructions as a whole. Under such circumstances the rule of this jurisdiction is that a trial court does not commit reversible error in including pleadings, such as are here involved, in its instructions.
See Williamson v. Oil and Gas Co., 94 Kan. 238, 146 Pac. 316, which holds:
“It is not error to incorporate into the court’s instructions tire plain and simple language of the pleadings when the issues are fairly presented to the jury by the instructions as a whole.” (Syl. f I.)
For another decision of like import see Balano v. Nafziger, 137 Kan. 513, 21 P. 2d 869, Syl. ¶ 2.
In Instruction No. 5 the trial court quoted at length from G. S. 1949, 8-550. Appellant’s complaint respecting this instruction is based on his erroneous theory such section of the statute has no application under the existing facts and circumstances, hence such complaint requires no further consideration. The same holds true of a further complaint to the effect it was error to refuse his requested Instruction No. 32, which is based on the same premise.
Appellant assigns error in the trial court’s refusal to give three other requested instructions. In one of these he asked the court to advise the jury that the Uniform Act regulating traffic on the highways of this state does not apply to persons while actually engaged in work upon the surface of the highway. Conceding the statute contains such a provision (G. S. 1949, 8-505 [d]) it does not follow appellant was entitled to this instruction. He was not actually engaged in working upon the surface of the highway. Quite to the contrary, he was engaged in driving down the newly constructed highway at an excessiye rate of speed. In that situation we think that, instead of giving this requested instruction, the trial court quite properly instructed the jury that the appellant in operating his vehicle on a highway under construction and not open to the public was required to use ordinary care and prudence in order to avoid injury and damage to the person and property of others, lawfully proceeding on a road and/or highway open to the public and crossing the road under construction. The two remaining requested instructions, refused by the trial court, relate to contributory negligence on the part of appellee who, like the appellant, was found guilty of negligence under the heretofore quoted answers to special questions. In the face of such findings we need not labor questions whether the trial court erred in refusing to give these instructions. Since the jury convicted appellee of negligence appellant sustained no prejudice by reason of the refusal to give them. See Simeon v. Schroeder, 170 Kan. 471, 227 P. 2d 153, where it is said:
“. . . Under our statute (G. S. 1935 60-3317) error complained of which does not prejudice the substantial rights of a party affords no sound basis for the reversal of a judgment and must be disregarded. This rule is, of course, applicable where errors or defects in the instructions become nonprejudicial by reason of special findings (see Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 91, 98 P. 2d 162).” (p. 474.)
Finally appellant contends that the trial court erred in giving special question No. 3, as heretofore quoted, in that it was an indirect instruction to the jury to the effect it was his duty to stop his automobile and use due care to avoid striking the truck after it had entered the intersection. We do not agree that this question in the form submitted can be regarded as an instruction. Moreover, if it were susceptible to such a construction, appellant failed to make any objection thereto when it was submitted and it is now too late for him to do so on appellate review.
Having determined all issues raised on appeal and finding nothing in them or in arguments advanced in their support to warrant a conclusion the trial court committed reversible error the judgment must be and it is hereby affirmed.
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Per Curiam:
Appellant’s petition for rehearing in the above-captioned action has been considered and it is ordered that paragraph one of the syllabus and the corresponding portion of the opinion in Hedges v. Keas, 180 Kan. 540, 306 P. 2d 181, be withdrawn. Otherwise, the original opinion is adhered to.
The petition for rehearing is denied.
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The opinion of the court was delivered by
Parker, C. J.:
The names of the parties in the court below appear in the title and will not be repeated. All parties defendant, except the City of Independence and the Board of Education of such city who answered, appeal from orders overruling motions to quash service of summons and demurrers.
Identical statements of the facts relied on by appellants to sustain their respective positions are set forth in the combined abstract and their four separate briefs. They read:
“This action was brought by the appellee to recover taxes paid under protest. The appellee is assessed on its property in this state by the State Commission of Revenue and Taxation sitting as the State Board of Appraisers, pursuant to the provisions of G. S. 1949, 79-701, et seq. The appellee timely filed its ad valorem rendition for the year 1955 with the State Commission of Revenue and Taxation and subsequently appeared for a hearing before the State Board of Appraisers requesting that certain changes be made in the assessment of moneys and credits of the appellee. On June 15, 1955, the State Board of Appraisers denied the changes asked for by the appellee.
“When appellee’s taxes became due and payable on November 1, 1955, a portion thereof was paid under protest to the County Treasurer of Montgomery County. The sufficiency of the protest is not questioned. ' Pursuant to the provisions of G. S. 1949, 79-2005, the appellee requested a hearing on said protest of taxes before the State Commission of Revenue and Taxation. Said hearing was had and the appellee was denied relief. Within thirty days after receipt of the order of the State Commission of Revenue and Taxation denying relief, the appellee brought this action in the District Court of Montgomery County, Kansas.
“The sole question before the court is one of jurisdiction of the District Court of Montgomery County, Kansas. The appellants claim that said court does not have jurisdiction of the parties nor of the subject matter because the Court does not have venue. The appellants contend that this action should have been brought in Shawnee County, Kansas. The Montgomery County District Court overruled appellants’ motions to quash service and also overruled appellants’ demurrers aimed at the jurisdiction of the court. These two rulings are the subject of this appeal.”
A similar situation prevails with respect to appellate questions involved which are stated thus:
“(1) Did the District Court err in finding that it had jurisdiction of the appellants and of the subject matter under G. S. 1949, 60-503?
“(2) Did the District Court err in overruling the motion of appellants to quash service of summons?
“(3) Did the District Court err in overruling the demurrer of this appellant?”
With respect to questions raised by appellants it should be stated, at the outset, that our examination of the record discloses nothing to warrant the assumption, inherent in question 1, that the trial court, in making the rulings complained of, found that it had jurisdiction of the subject matter and the appellants under G. S. 1949, 60-503. For that reason, since it appears such question is based on an entirely erroneous concept as to the basis on which the involved orders were made, such question falls of its own weight and requires no further discussion. However, the remaining two questions do raise the jurisdictional question which, as appellants clearly point out in the third paragraph of their heretofore quoted factual statement, depends wholly on venue and is the sole issue involved.
In approaching the problem thus presented it is neither necessary nor required that we here labor the procedural steps under which, by virtue of the provisions of chapter 79, article 7, G. S. 1949, the taxes in question were assessed against the appellee and thereafter placed upon the tax rolls of Montgomery County to be collected as other taxes.
For purposes here pertinent it suffices to say all parties concede that having been so assessed and placed upon the tax rolls of such County the provisions of G. S. 1949, 79-2005, relating to payment of taxes to the County Treasurer under protest and proceedings for the recovery of taxes so paid became applicable; and that having paid such taxes under protest the appellee, under and by virtue of the terms and provisions of such statute, is now entitled to maintain an action for their recovery in some court of competent jurisdiction, based on that protest.
From what has been stated up to this point it becomes apparent the provisions of G. S. 1949, 79-2005 are highly important. Therefore portions thereof, some italicized for purposes of emphasis, having particular application under the existing facts and circumstances will be quoted. They read:
“Any taxpayer before protesting the payment of his taxes, shall be required at the time of paying said taxes, to make and file a written statement with the county treasurer . . . The county treasurer shall disburse to the proper funds all portions of taxes not so protested and he shall impound in a separate fund all portions of such taxes which are so protested. (2) Every taxpayer protesting the payment of taxes, within thirty days after filing his protest shall either commence an action for the recovery thereof in some court of competent jurisdiction, or, file an application with the s'ate commission of revenue and taxation for a hearing on the validity of such protest. Within ten days after the filing of such application, such taxpayer shall give notice of the same to the county treasurer by filing with him a true copy of the application filed with the commission. The commission shall fix a time and place for a hearing on such application and shall notify such taxpayer, the county treasurer, and the clerk, secretary, or presiding officer of the governing body of any taxing unit affected by such protest of the time and place so fixed. ... At the time and place fixed for the hearing, the commission shall hear such applica tion and, when it determines such protest, shall enter its order thereon and give notice of the same to the taxpayer, the county treasurer, and, the clerk, secretary, or presiding officer of the governing body of the taxing unit affected by the protest by mailing to each a copy of its order. Such order shall be made within, ninety days after the completion of said hearing. If any taxpayer so protesting his taxes shall fail: (a) To file such application with the commission within the time hereinbefore prescribed and to give the county treasurer notice of the filing of such application with the commission within the time herein-before prescribed; or (b) to commence an action in some court of competent jurisdiction for the recovery of the taxes protested within the time herein prescribed; such protest shall become null and void and of no effect whatsoever and upon any such failure the county treasurer shall disburse to the proper funds all portions of such taxes protested. No action shall be brought or maintainable in any court for the recovery of any taxes paid under protest unless the same is commenced within thirty days after the filing of such protest with the county treasurer, or in case application shall have been fled with the commission as hereinbefore set out, unless the same is commenced within thirty days after the date the commission mailed its order on such protest to such taxpayer. In the event no such action is commenced within such thirty-day period, the county treasurer shall, as soon thereafter as reasonably practicable, cause iaid impounded tax money to be refunded to the taxpayer or distributed to the fund or taxing district properly entitled to receive the same, in accordance with the order of the commission issued thereon.” (Emphasis supplied.)
From a careful analysis of the foregoing statute we are convinced, that where — as here — taxes are assessed against a taxpayer and are subsequently placed upon the tax rolls of a county to be collected as other taxes, such statute is to be construed as giving the taxpayer a statutory action for the recovery of those taxes, when paid under protest, which may be brought and maintained in the district court of the county in which the protested taxes are paid and impounded against the person charged with the duty and obligation of holding the money so paid in a separate fund until final determination of the action. This, we believe, has long been the construction placed upon the statute now under consideration. For just a few of our more recent decisions where a like construction has been recognized and applied see Smith v. City of Prairie Village, 175 Kan. 469, 264 P. 2d 1053; Holmes v. Board of County Commissioners, 175 Kan. 770, 267 P. 2d 523; Rural High School District No. 3 v. Baker, 176 Kan. 647, 272 P. 2d 1073; Anderson v. Dunn, 180 Kan. 811, 308 P. 2d 154; V. S. Dicarlo Masonry Co. v. Higgins, 178 Kan. 222, 284 P. 2d 640; Chicago R. I. & Pac. Ry. Co. v. Ferguson, 161 Kan. 562, 171 P. 2d 274.
It is interesting to note that, contrary to contentions advanced by appellants, some of the foregoing decisions, likewise provisions of the involved statute (79-2005), recognize that the State Commission of Revenue and Taxation, as well as the taxing units to be affected by its determination, are proper parties to an action instituted, under the terms of such statute, to recover taxes paid under protest. This, we may add, is so^ because of a sound and salutary rule (See Wolf River Drainage Dist. v. Nigus, 133 Kan. 742, 3 P. 2d 650; Shearer v. Murphy, 63 Kan. 537, 66 Pac. 240) that political entities beneficially interested in taxes, and therefore interested in showing them to be valid, should be made parties in order that they may have notice and an opportunity to defend their interests in case they desire to do so.
Of equal interest is the fact, again contrary to appellants’ contentions, that under our decisions (See Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563, Rehearing Denied 137 Kan. 241, 20 P. 2d 811) a judicial proceeding to recover taxes paid under protest cannot be regarded as an action against the state.
With the statute (79-2005) construed, as heretofore indicated, venue is fixed by the provisions of G. S. 1949, 60-509 in the county in which the impounding official resides (See State, ex rel., v. Miley, 120 Kan. 321, 243 Pac. 262), not by the provisions of G. S. 1949, 60-503, Second, as appellants contend. It follows their position the trial court did not have jurisdiction of the parties nor of the subject matter, because it did not have venue, cannot be upheld.
Refore leaving the point now under consideration it should be said that in reaching the conclusion just announced we have not attempted to here discuss or review tire many arguments and decisions presented by appellants in support of their basic over-all position that the district court of Shawnee County, Kansas, not Montgomery County, has venue of the instant action under and by virtue of the provisions of G. S. 1949, 60-503, Second. It suffices to say we have carefully considered all such arguments, as well as the cited decisions, and find nothing in either the arguments or the decisions which warrants or requires a conclusion that, under the existing facts and circumstances, venue of an action to recover money paid for taxes under protest, instituted pursuant to the provisions of 79-2005, does not lie in the district court of the county in which the taxes were paid and are impounded.
Rased on what has been heretofore stated and held we conclude that, except for the State of Kansas, the trial court’s action, in overruling appellants’ motions to quash service of summons based on the jurisdictional grounds to which we have heretofore referred and portions of their demurrers relating to the same question, was proper and must be upheld.
The State is in a different position than the other appellants, but not because the trial court did not have venue. The rule is that the State, being a sovereign power, cannot be subjected to suits in its own courts without an express statutory waiver of its right of exemption therefrom. (See, e. g., Purity Oats Co. v. State, 125 Kan. 558, 264 Pac. 740.) There is no statutory waiver of such immunity. Therefore, since its motion included a jurisdictional challenge based on that premise such motion should have been sustained.
Notwithstanding the admissions of all the appellants, as set forth in their heretofore quoted statement of facts, which for purposes of emphasis we pause to again point out concede appellate issues involved are limited to questions of jurisdiction, the appellants A. M. Eckelberry, County Treasurer of Montgomery County, and The Board of County Commissioners of such County, argue the petition fails to state a causé of action against them, hence the second ground of their demurrers, based on that premise, should have been sustained. We are not inclined to prolong this opinion by laboring the point thus raised. Without detailing the petition it may be said that our examination of that pleading discloses its allegations, when accepted as true and given the benefit of all inferences to which they are entitled in ruling on the portions of the demurrers now under consideration, are sufficient to state a cause of action for the recovery of intangible taxes, paid under protest in conformity with the provisions of G. S. 1949, 79-2005, against the County Treasurer as the impounding tax official and the County as one of the taxing units entitled to a proportionate share (See G. S. 1949, 79-3115) of the involved taxes when collected.
Finally it should be said that what has been heretofore stated and held does not- permit this court to pass upon the numerous questions raised by appellee in its brief relating to the merits of the cause. All we are now warranted in holding with respect to the issues here determined — as we do — is that under the facts, conditions and circumstances of record the trial court did not err, except as heretofore pointed out, in overruling the involved motions and demurrers.
The judgment is affirmed as to all appellants except the State of Kansas. As to that appellant it is reversed.
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The opinion of the court was delivered by
Robb, J.:
This was a proceedings commenced by the guardian of a minor landowner before the board of county commissioners of Sedgwick county for the establishment of a roadway across adjoining land in order to gain access to a public highway. The petition for the roadway was denied by the board and on appeal to the district court, it was again denied, from which denial this appeal was taken. We shall refer to the appellant as the petitioner and to the board of county commissioners as the board.
Our attention is first directed to the jurisdictional question as to whether petitioner had a right of appeal to the district court. The first element of this proposition pertains to the power exercised by the board. Was that power of a purely political nature consisting of a legislative, administrative, executive, or discretionary function, or was it quasi-judicial? (Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125, 1 Pac. 261.) If the power exercised was judicial or quasi-judicial, then an appeal to the district court from an order of the board acting in such judicial capacity was proper. (City of Salina v. Thompson, Trustee of Mo. Pac. Rly. Co., 169 Kan. 579, 220 P. 2d 147.) Where a special statute does not specifically provide for such an appeal, one may be taken under the general statute (G. S. 1949, 19-223) which, in part, provides:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to die district court of the same county . . .”
The determination of the applicability of a statute to a given situation is strictly a judicial function. (McCluggage v. Loomis, 176 Kan. 318, 270 P. 2d 248.)
The second element of the proposition now being considered is whether the notice was sufficient. The notice of appeal to the district court was timely served on the county clerk, and was directed to the county commissioners, county counselor, and J. Ash-ford Manka as attorney of record for Ross Gosney and Esther M. Gosney (appellees here), who had appeared as objectors in the proceedings before the board. Without laboring the point, we think this notice was sufficient. (G. S. 1949, 19-223.) We believe the appeal is proper and the motion to dismiss is denied.
We shall not detail all the history and circumstances of this case but will cover only those parts necessary for a determination of the appeal. For clarity, we are including as part of this opinion a map showing the outlay of the land involved.
Petitioner s land consisted of plots A, B, C, D, E, and F but the particular parcel involved in this appeal is plot D. There has always been a roadway along the north edge of the Gosney land and it is still in existence. The Gosneys have a locked gate on the road-
way and petitioner’s testimony showed that Mr. Gosney had not denied petitioner the use of this roadway whenever he could find Gosney with tire key. There was also evidence that the Protection Drainage District had given petitioner authority to cross the drainage district ditch, but we do not believe the question requires setting out that testimony.
The statute involved is G. S. 1949, 68-117 which in part provides:
“That whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons . . . then such person may petition the board of county commissioners of the county in which such premises lie for a road. . . .”
The above statute was also involved in the McCluggage case, supra, where the situation was quite similar to the one presented to us now. It is nowhere contended that petitioner’s entire tract of land is completely surrounded by the land of others and in order to grant petitioner the relief sought we would have to read into the statute something that is not there, which would be that “whenever a part of the premises,” etc. An action such as this must be taken by the legislature as otherwise it would be an invasion of the legislative power. Our opinion is that petitioner has not made a sufficient showing to be entitled to the relief sought and the denial thereof was proper.
The judgment is affirmed.
Fatzer, J., dissents from that part of the syllabus and corresponding portion of the opinion which holds that the board of county commissioners was acting in a quasi-judicial manner in denying the relief sought and an appeal from its order was properly taken to the district court.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the lower court overruling a demurrer to the petition of the plaintiff.
Throughout this opinion the appellee, Gail Allen, will be referred to as the plaintiff, and Harry N. Brown and Bernard Brown, doing business as Harry Brown Motors, appellants, will be referred to as the defendants.
The plaintiff purchased a new Plymouth automobile from the defendants who were automobile dealers, and after having some difficulty with the automobile brought an action against the dealers and the manufacturer upon an express warranty given in connection with the sale of the automobile.
The appeal before this court does not involve the manufacturer, Chrysler Corporation, and therefore, no reference will be made to the manufacturer with respect to liability pursuant to the warranty. The pertinent portions of the second amended petition filed by the plaintiff allege:
“That the defendants, Harry N. Brown and Bernard Brown, are an authorized Plymouth dealer, doing business as Harry Brown Motors at 1701 Minnesota Avenue, Kansas City, Kansas. That on January 25, 1955, said defendants warranted to said plaintiff that Plymouth car No. 22190488 was in good order and, relying on said warranty, plaintiff purchased said Plymouth automobile and paid to the defendant, Harry Brown Motors, the sum of $2,476.00, a copy of which warranty is attached and made a part hereof.
“That said Plymouth automobile was not in good order in that said automobile vibrated and shook violently and noisily at all times when driven, causing so much noise that it was impossible to carry on a conversation within said automobile, impossible to listen to tire radio installed in said automobile because of said noise and vibration, to the damage of this plaintiff in the sum of $2,476.00. That plaintiff has been further damaged in that he has been deprived of the use of said automobile in taking it into the defendant, Harry Brown Motors, for service and has been without the use of a car due to the time the defendant, Harry Brown Motors, had said car attempting to repair it, to plaintiff’s damage in the amount of $500.00. That further plaintiff has been inconvenienced and lost his time, all in and to his damage in the amount of $500.00.”
The document containing the warranty attached to the petition reads as follows:
“Plymouth
Owner
Service Certificate
No__
Issued To Gail S. Allen
Owner’s Name
104 S. 16th
Address
Kansas City, Kansas
City State
FOR
Plymouth car 22190488
Vehicle Number
1-25-55
Delivery Date
Issued By
Dealer Harry Brown Mtrs.
City Kansas City State Kansas
Keep This Certificate in Your Car at All Times for Identtftcation automobile manufactures association UNIFORM WARRANTY
“ ‘The Manufacturer warrants each new motor vehicle manufactured by it to be free from defects in material and workmanship under normal use and service, its obligation under this warranty being limited to making good at its factory any part or parts thereof, including all equipment or trade accessories (except tires) supplied by the Motor Vehicle Manufacturer, which shall, within ninety (90) days after making delivery of such vehicle to the original purchaser or before such vehicle has been driven four thousand (4,000) miles, whichever event shall first occur, be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective; this warranty being expressly in lieu of all other warranties expressed or implied and of all other obligations or liabilities on its part, and it neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of its vehicles.
“ ‘This warranty shall not apply to any vehicle which shall have been repaired or altered outside of an authorized Plymouth service station in any way so as, in the judgment of the Manufacturer to affect its stability or reliability, nor which has been subject to misuse, negligence or accident.’
“Dealer extends the foregoing warranty to the Purchaser on the Plymouth car sold to Purchaser 'hereunder in the same manner as if the word ‘Dealer’ were substituted for the word ‘Manufacturer’ therein; it being understood that Dealer’s obligation under this warranty is limited to making good at its place of business the defective part or parts referred to, within the warranty period, without charge for replacement labor. This warranty by Dealer is expressly in lieu of all other warranties, expressed or implied, and of all other obligations or liabilities on the part of Dealer, and the Dealer neither assumes nor authorizes any other person to assume for it any liability in connection with tire sale of its vehicles.”
Included in the written document attached to the second amended petition, as a part thereof, and incorporated by reference, is the “Plymouth Owner Service Certificate.” The portions material to our discussion herein are as follows:
“1. New Cab Conditioning:
“For your maximum enjoyment and satisfaction, we carefully inspected and conditioned your new Plymouth in accordance with standard procedures before delivery.
“4. Explanation of Wabbanty:
“The Warranty Period is defined as the first 90 days you own your vehicle, or the first 4,000 miles you drive it, whichever event occurs first. (See Warranty on the back of this Certificate.)
“During this period we will not charge for Plymouth replacement parts required because of defective material, or workmanship, or for labor required to install these parts. This Warranty applies to all original parts of the vehicle except tires. This Warranty will not apply:
“1. If parts and/or labor are required due to accident, abuse, or negligence;
“2. If you have your car repaired by other than an authorized Plymouth dealer during the Warranty Period;
“3. If any parts are used that are not made by, sold by, or approved by Chrysler Corporation, Plymouth Division.”
The demurrer challenges the petition on the ground that it does not contain facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant automobile dealers. It is unnecessary to unduly burden this opinion with a discussion concerning the liability of the defendant automobile dealers on an implied warranty. In the first place, the written warranty is expressly given in lieu of all other warranties, expressed or implied. This provision is binding on the purchaser. A mere dealer in machinery or equipment of standard make is not bound by any implied warranty and that is particularly true where, as here, the written terms of the contract of purchase expressly excluded any and all implied warranties. (Harmon v. Coonrod, 148 Kan. 146, 79 P. 2d 831; Ehrsam v. Brown, 76 Kan. 206, 91 Pac. 179; Richardson v. G. W. Mfg. Co., 3 Kan. App. 445, 43 Pac. 809; Machinery Co. v. Schierkolk, 95 Kan. 737, 149 Pac. 680; Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982; and Parker v. Hutchinson Motor Car Co., 127 Kan. 765, 274 Pac. 1115.)
Furthermore, plaintiff did not plead an implied warranty upon which a cause of action could be lodged against the defendants.
Reference is made to the foregoing authorities cited and to the case of Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P. 2d 964, and the authorities cited therein, for a full discussion of the Kansas law relative to Sales and Warranties.
The only question before this court, therefore, is whether the petition states a cause of action against the defendants based upon the express written warranty.
The defendants contend that the second amended petition of the plaintiff must be strictly construed. We do not so regard the petition.
The defendants first attacked the petition of the plaintiff by a motion to make definite and certain. The lower court sustained this motion in all its meritorious respects. It did not require the plaintiff to plead that the automobile purchased was a new automobile, and did not require the plaintiff to itemize the damages which plaintiff claims to have amounted to $2,476.00. In other respects the plaintiff complied with the order and the petition was again attacked by a motion to strike, which the lower court sustained. It was argued as a motion to make more definite and certain by agreement of the parties, and the plaintiff complied with the order of the court.
The rules concerning the construction of a petition attacked by a demurrer are well stated in the recent case of Vitt v. McDowell Motors, Inc., 180 Kan. 800, 308 P. 2d 115, as follows:
“G. S. 1949, 60-704, provides that a petition must contain a statement of the facts constituting the cause of action in ordinary and concise language, without repetition, and a demand of the relief to which the plaintiff supposes himself entitled. In other words, the function of a petition is to advise defendant precisely what plaintiff claims against him. In the determination whether a petition is sufficient in this respect, we are to be guided by G. S. 1949, 60-736, which provides that in the construction of any pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties. If the allegations of a petition, liberally construed, fail to meet the test of 60-704, the function of a motion to malee more definite and certain is to require plaintiff to supply the defect. In the event such motion is successfully resisted by plaintiff, then the petition, if later attacked by demurrer, is to be construed strictly against plaintiff. If the motion is sustained and plaintiff complies, the petition is to be liberally construed. On the other hand, if a petition is sufficient to comply with 60-704, a motion to make it more definite and certain lacks merit, and the rule of strict construction does not apply following the overruling of such motion. The sum and substance, then, of what has been said, is that it is only when a meritorious motion to make a petition more definite and certain is overruled that the rule of strict construction applies when the petition is subsequently attacked by demurrer. (Cale v. Johnson, 177 Kan. 576, 578, 579, 280 P. 2d 588.)”
See, also, Byerley v. Braucher, 180 Kan. 816, 308 P. 2d 144; Snyder v. Haas, 175 Kan. 846, 267 P. 2d 467; Hatcher’s Kansas Digest [Rev. Ed.], Pleading, §§ 33 to 35; and West’s Kansas Digest, Pleading, § 34 (4).
In the instant case the meritorious portions of defendants’ motions were sustained by the lower court and the plaintiff complied with the orders by twice amending his petition. The petition, therefore, is entitled to a liberal construction in favor of the plaintiff.
It was unnecessary to require that the plaintiff make his original petition more definite and certain by stating whether the automobile purchased was new, since a fair construction of the petition including the document incorporated by reference in complying with the court’s order warrants a construction that plaintiff’s cause of action is upon the breach of a written warranty involving the sale of a new Plymouth automobile. The attack upon the allegation of damages will be discussed later'.
As is often the case in the purchase of a new automobile, the purchaser on discovering mechanical conditions which do not seem to be normal in the operation of the motor vehicle, will return the automobile to the dealer from whom the purchase was made. The particular defect is usually unknown to the purchaser and it is upon the dealer that he relies for discovery of the defect causing the unusual mechanical functioning of the vehicle.
In ordinary and concise language the plaintiff stated facts which describe a new automobile commonly referred to in the automobile industry as a “vibrator”. This is neither unusual nor uncommon to the industry. The general cause of the vibrations is known. Some part or parts have been either defectively manufactured or improperly assembled in the construction and manufacture of the automobile. In the operation of an automobile, when these defective parts are rotating rapidly, they are spinning either eccentrically (off center) or concentrically out of balance (improper weight distribution). Both give rise to vibrations. The difficulty lies in locating the precise spot and cause. It may be a defect in the manufacture of the part or parts and it may be a defect in workmanship in the assembly of the automobile. Both are specified and covered by the written warranty.
The purchaser of a new automobile does not know the precise cause, and the dealer with his mechanics may, after calling in the factory experts and representatives, take many months to locate the defect.
Under an express warranty as alleged in the petition, it would place a tremendous burden upon the purchaser of a new motor vehicle to find the precise part or parts of the vehicle which were defective and direct the dealer to replace them or remedy the defect. If the operation of such vehicle is mechanically defective and the automobile is returned to the dealer for the purpose of correcting these defects, it is incumbent upon the dealer to find such defective part or parts and replace them pursuant to the terms of the warranty or to locate the assembly that has been improperly assembled and x-emedy the defect.
This situation was recognized in a Louisiana case on a “new car guarantee” similar to the warranty in the case at bar, Cobb v. Truett, La. App., 11 So. 2d 120, where the court said:
“We experience little difficulty in concluding that the car sold to plaintiff was not in good running order, not serviceable at the time it was purchased, and had such vices and defects as to prevent the normal, safe and comfortable use contemplated by tire parties.
“. . . It is shown that defendant had every facility for ascertaining the trouble and providing a proper remedy. The car was left in defendant’s garage and repair shop six or seven times and, on three of these occasions, remained there two full days, thus affording defendant the opportunity of making proper inspection and repairs, as it had expressly warranted to do . . .”
A similar new car warranty was the subject of litigation between a dealer and the purchaser in Peterson Co. v. Parrott, 129 Me. 381, 152 A. 313, where the court held that paint on an automobile not in good condition and not properly applied constituted “defective workmanship or material” within the warranty and the question of damages by reason thereof should have been submitted to a jury.
Where, as in this case, the express warranty contemplates that the seller’s liability for a breach of warranty does not attach until he has had an opportunity to remedy the defects, his failure or refusal to act, where such opportunity is afforded the seller, fixes his liability. Under these circumstances the following is quoted from 77 C. J. S., Sales, § 340, p. 1235:
“. . . An unsuccessful effort to remedy the defects renders the seller liable on his warranty; and the buyer is not bound to allow him a second opportunity, or to permit him to tinker with the article indefinitely in the hope that it may ultimately be made to comply with the warranty. On the other hand, an offer on the part of the seller to remedy defects not accepted by the buyer releases the seller from liability on the warranty, provided the offer or effort to repair is made within what is, under the circumstances of the particular case, a reasonable time. Where no time is fixed by the contract within which defects should be remedied, they must be remedied within a reasonable time, or an agent of the seller may agree with the purchaser as to the time which shall be given for such purpose. . . .”
While the plaintiff did not allege in so many words that he returned the automobile to the dealers within 90 days or before he had driven 4,000 miles, whichever occurred first, he did allege that it was returned to the dealers for service and attempted repair. The defendants raise no question on this point and no motions were directed against these allegations. Under liberal construction the petition on this point is sufficient to withstand a demurrer. The defendants are advised by the petition what the plaintiff claims against them and may plead their defense. Of necessity, the plain tiff’s evidence at the trial must establish compliance with the terms of the warranty.
To what extent the plaintiff has been damaged is primarily a question for the jury to determine. The burden of proving damages rests upon the plaintiff. The petition alleged damages to the full extent of the purchase price of the automobile. The plaintiff has further alleged consequential damages resulting from the loss of use of the automobile, inconvenience to himself and time lost. As to the items of damage a petitioner need not plead his evidence.
The law concerning damages where there has been a breach of a warranty in a contract of sale is stated in McNaghten Loan Co. v. Sandifer, 137 Kan. 353, 20 P. 2d 523:
“Damages are defined, without any of the many qualifying features thereof, as a just compensation or reparation for a loss or injury sustained. (17 C. J. 716.) ... If, as stated above, the breach in such cases is to be regarded as a breach of warranty in the sale of chattels, the measure of damages as stated in 55 C. J. 866 is—
“ ‘Where there has been a breach of a warranty in a contract of sale, the buyer can be compensated in damages. . . . The buyer is entitled to recover the actual damages he has sustained, both general and special, which are the natural and direct or proximate result of the breach, and which may reasonably be regarded as within the contemplation of the parties at the time of the sale as the probable consequence of a breach.’ ” (p. 858.)
The measure of damages for breach of warranty is the loss directly and naturally resulting from the breach of warranty. In the absence of special circumstances showing proximate damage of a greater amount, this is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty. It is thus clear that consequential damages, if properly pleaded and proved, may be recovered by reason of breach of warranty.
It follows that the plaintiff has stated a good cause of action against the defendants for breach of an express warranty, and the order of the lower court overruling the demurrer should be and hereby is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant, Joseph Zebedee Rrown, appellant herein, was tried and convicted on three separate counts: kidnaping in the first degree, forcible rape, and assault with intent to rape. From the verdict and judg ment entered against him, the defendant appeals to this court, specifying as error certain rulings of the court.
Trial began on the 30th day of January, 1956, and concluded with a verdict on the 9th day of February, 1956.
Mrs. Harris, one of the complaining witnesses in this criminal action, lived at 3617 Freeman Avenue, Kansas City, Kansas. She was a white woman and at the time of the trial was fifty-seven years old. After she got off from her work on February 21, 1955, at about 9:00 o’clock p. m., she went to her car which was in a parking lot at Eighth and Nebraska, Kansas City, Kansas. When she sat down in her car, some man stepped up from behind, opened the door, slid into the driver’s seat and forced Mrs. Harris over to the other side of the car with a gun. She asked the man, “What are you going to do?” The man said, “Be quiet and you won’t get hurt.” Mrs. Harris worked at the Bodker’s Clothing Store. She stated that the man, later identified as the defendant — a nineteen-year-old colored youth, drove her automobile out of the parking lot without her consent. He drove up and down streets and finally drove down an alley and behind a building in which the Nebraska Waste Paper Company was located.
According to the testimony of Mrs. Harris, the defendant said, “I don’t want your money, I don’t want your car.” She then asked the defendant, ‘What do you want?” and he said “I am going to rape you.”
After the defendant turned in behind the said building, he stopped the car and told Mrs. Harris to take off her clothing. This she refused to do. Then, the defendant forced her to the opposite .side of the car and hit her on the shoulder with a gun. Mrs. Harris testified that the defendant took off her undergarments and forced her at the point of a gun to have sexual relationship with him.
After this incident, Mrs. Harris was released by the defendant at a stop light, where he jumped out of the car and ran off into the darkness. She went to a tavern and called the police. A detective named Don. Adams, answered the call and took Mrs. Harris to her son’s home.
Later Mrs. Harris went to police headquarters and identified defendant- in a line-up of five men. Mrs. Harris testified at the trial that the defendant was the man that she identified at police headquarters, and she pointed him out in the courtroom as the man who raped her.
On the night of February 28, 1955, exactly one week after the foregoing incident, Mrs. Ruth Brakey was assaulted. Mrs. Brakey lived in North Kansas City, Missouri, at 2815 East 56th Street and worked at Maslan’s Department Store in Kansas City, Kansas. At approximately 9:00 o’clock p. m., on the 28th day of February, she went to the alley after work to get into her parked car. As she got in from the right side a man who wore a mask and had a revolver in his hand tried to get into her car from the left side. Mrs. Brakey kicked so furiously that she kicked the mask off the man and got a good look at him. In the process she screamed and attracted the attention of persons nearby. The defendant escaped into the darkness and later Mrs. Brakey picked the defendant out at police headquarters and identified him as the man who attempted to get into her car.
Don Adams, a detective working out of the police department of Kansas City, Kansas, met Mrs. Harris on the night of February 21, 1955, at a tavern located at 11th and Quindaro in Kansas City, Kansas, pursuant to a call he had received from headquarters. He related that Mrs. Harris was nervous, excited, crying and emotionally upset at the time.
Subsequently, on the 28th day of February, 1955, Mr. Adams saw the defendant, Joseph Zebedee Brown, at the detective bureau headquarters where he had conversation with him. At that time the defendant made a statement in writing as follows:
“My name is Joseph Zebedee Brown, and I reside at 823 Ohio Street in Kansas City, Kansas. I was told by Detective Don Adams that I had the right of an attorney, and that I did not have to make a statement unless I desire to do so. My Constitutional rights were explained to me by Detective Adams. Knowing this, I wish to tell what I know about the rape of a white woman that occurred the Monday night of February 21, 1955. This happened about 9 p. m. at night.
“I work for the Nebraska Paper Company, and on that date I got off from work about 5 p. m. I went home about 8 p. m. and walked down to Fifth and Chelsea and came up to Seventh Street, and walked up to Eighth and Everett. When I arrived at Eighth and Nebraska, I saw a white woman crossing the street and get into her Plymouth. I saw her open the door of her car and get in. I walked over to her car and opened the door to her car, and had my .38 caliber gun in my hand. I told her to scoot over, and I got into the car under the wheel. I drove straight down Eighth Street to Chelsea, and finally went to in back of the Nebraska Waste Paper Company, where I raped this white woman. I told her I did not want her money when she offered it to me. After I completed this act, I drove to about Hallock and Chelsea, where I got out of the car.
“For the past three or four years I have noticed a woman who works at Maslan’s store. She parks her car in back of the store. I decided on Sunday, February 27, that I would like to have intercourse with her. On this date, February 28, 1955, I left home about 8:10 p. m. and went to Seventh and Ohio, where I bought a half pint of gin. I went to my grandmother’s to in back of Maslan’s store, where I spotted this woman’s car. The car was a 1949 Chevrolet, 2-door. I broke out the front door glass on the driver’s side of the car. In about five minutes this white woman came down to her car and got into her car. I do not know whether she saw the glass was broken out or not. I was standing in the dark, close to her car, and as soon as she got into the car I immediately walked over to the car. This woman saw me and stai-ted kicking at the door of the car, and screaming. I saw that there was several people looking my way and I ran to Fifth and State, where I saw a car parked. I asked the man in the car to take me to Eighth and Everett, where I got out of the car. I walked to the parking lot between Nebraska and Washington on Eighth Street, where I got into a car that was parked. I sat in this car for five or ten minutes. I got out of this car and walked to Eighth and Nebraska, where the officer arrested me.
“I have made this statement of my own free will and accord, and I was not threatened or promised in any way in order to make this statement. I have read this statement, consisting of two typewritten pages, and swear that this statement is the truth, to the best of my knowledge.”
The foregoing confession was signed “Joseph Zebedee Brown” and the witnesses indicated were William Pickering, K. Van Horn and Don Adams.
The foregoing confession was introduced in evidence by and through Don Adams, the detective, without any objection on the part of counsel for the defense, except for the fact that Don Adams in reading the statement indicated where a correction. was made and counsel for the defense then addressed the court:
“I move to strike out any observation of this witness in reference to the statement. This statement is the best evidence.”
Thereupon the court struck the observation.
The further detailing of facts necessary for the disposition of this appeal will be set forth as the assignments of error are presented.
The defendant’s appeal was properly' perfected and all rights protected on those matters which the defendant specifies as error. Principally, the specifications of error may be grouped into three points. The defendant sets them forth in his brief as follows:
“I.
“Was it prejudicial error on the part of the trial court to overrule defendant’s motion to require the State to elect as to which count the State intended to rely on for conviction?
“II.
“Can tire testimony of a witness given in a preliminary hearing be read in evidence by the State against a defendant in a criminal action, over his objection, without a satisfactory showing that due diligence had been used by the State in an effort to secure the presence of said witness?
“HI.
“Where a first degree kidnapping statute, such as Section 21-449, G. S. 1949, specifically provides that the kidnapping must be for a particular intent and purpose, namely holding for ransom or reward, that being the only offense enumerated therein, should said statute by construction of the Court be extended to cover other offenses not enumerated and by interpolation read into tire statute the crime of rape?”
Focusing our attention now upon the first proposition presented, the defendant contends that the trial court erred in overruling the defendants motion to require the state to elect upon which of the two separate offenses charged in the amended information the state would rely for a conviction of the defendant, that the trial court erred in overruling defendant’s motion to quash for the same reason, and the trial court erred in overruling the defendant’s motion requiring the state to elect at the close of all the testimony. The defendant’s precise contention is that it was illegal to join the counts which charged the defendant with kidnaping in the first degree and the rape of Eva Harris, with the offense of assault with intent to rape. It is argued that these are unrelated offenses not arising out of the same transaction, that the motive was not identical and that the different offenses were not part of one comprehensive plan, purpose and design on the part of the defendant.
In support of this contention the defendant cites State v. Thompson, 139 Kan. 59, 29 P. 2d 1101. This case involved the joinder of felonies in different counts of the same information in which the first count charged rape of a woman and the second count charged robbery of a man of an automobile. The court held this joinder to be proper on the ground that these offenses grew out of the same transaction and the fact that the car belonged to the companion of the girl raped did not affect the essential unity and identity of the hideous action which was all part of one comprehensive plan. The language seized upon by the defendant in the Thompson case was a dictum by Burch, J., in commenting:
“That offenses must be of the same general character is not always a sound test of joinder. In this instance the two crimes charged were of the same general character, in that they both involved force and violence to the person. That, however, would not necessarily be sufficient. To illustrate: As the culmination of a long standing quarrel about a line fence, a farmer kills his neighbor. He goes to town, and the same afternoon, while in an excited frame of mind, he becomes involved in an altercation about a business matter, and makes an assault with some kind of a deadly weapon with intent to kill. While the offenses are of the same general character, there should be separate informations and separate trials. The only reason this is so is, there would inevitably be some jumbling of the two cases at the trial, which would tend to prevent that concentrated consideration of each case which is indispensable in matters of such gravity.
“The reason for separate charges and separate trials fails when the acts constituting the crimes are linked together in a series in such manner they constitute one comprehensive transaction, and this is true whether or not the crimes are of the same general nature. . . .” (pp. 61, 62.) (Emphasis added.)
The law might well have grown in this direction as it has in other jurisdictions. Cases dealing with the joinder of felonies which grow out of one comprehensive plan or design can be cited to support the proposition. It must be emphasized that these cases are supported only by the facts with which the court was then confronted. (State v. Neff, 169 Kan. 116, 218 P. 2d 248; State v. Aspinwall, 173 Kan. 699, 252 P. 2d 841; State v. Aldrich, 174 Kan. 335, 255 P. 2d 1027; and State v. Martin, 175 Kan. 373, 265 P. 2d 297.)
These cases do not deal with the precise question we now have before this court. It should be noted that these cases are authority for the joinder of felonies whether they be of the same general character or not, where the offenses constitute one comprehensive plan, transaction or where one offense is a corrollary to the other.
In the history of Kansas law we find in 1891 that this court in The State v. Hodges, 45 Kan. 389, 26 Pac. 676, established the law relative to the joinder of separate and distinct felonies charged in several counts of the information, provided, of course, that only one offense is charged in each of the several counts of the information. The court there speaking through Valentine, J., said:
“. . . Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of tire same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment . . . The defendant may be tried upon all the several counts of the information at one and the same time, and in one trial; but all this rests in the sound judicial discretion of the trial court. In some cases the trial court might, without committing material error, quash such an information; or it might require the state to elect upon which one or more of the several counts it would proceed to trial or rely for a verdict; but we cannot say that in this case the court abused its discretion or committed any material error.” (p. 892.)
The foregoing proposition of law has been cited many times and followed in this court. (The State v. Warner, 60 Kan. 94, 55 Pac. 342; State v. Powell, 120 Kan. 772, 245 Pac. 128; rehearing denied in State v. Richardson, 121 Kan. 722, 250 Pac. 313.)
The established law in Kansas is well stated in 42 C. J. S., Indictments and Informations, § 183, p. 1143, as follows:
“. . . The rule now generally accepted is that, subject in most instances to the discretion of the trial court to compel an election, separate felonies of the same general nature may be charged in separate counts of the same indictment, in case they are triable in the same manner and punishable similarly . . .”
In State v. Toelkes, 139 Kan. 682, 33 P. 2d 317, this court said:
“So far as the joinder of separate offenses in the same information is concerned, the test is, Are the charges of the same general nature and will the joinder deprive the defendant of an advantage in the trial, or are they incongruous and repugnant in character and will they operate to deprive the defendant of some legal advantage? We see no reason why felonies and misdemeanors may not be joined where they are kindred in nature, as well as different felonies of like nature prosecuted in separate counts . . .” (p. 684.)
As heretofore quoted in the Hodges case this court adheres to the proposition that the question of joinder of separate and distinct felonies is largely a question of procedure, resting in the sound judicial discretion of the trial court, whether or not the rights of a defendant will be prejudiced by the trial of several charges at one time. (State v. Odle, 121 Kan. 284, 246 Pac. 1003; Wiebe v. Hudspeth, 163 Kan. 30, 180 P. 2d 315; State v. Aspinwall, supra; and 42 C. J. S., Indictments and Informations, § 183.)
With the foregoing law established in Kansas prior to the writing of the Thompson case, Burch, J., recognized the discretionary power in the trial court by using the word “should” in his dictum instead of a more commanding word. In fact, the Thompson case was written in 1934 and in the same year shortly thereafter the Toelkes case was written by Johnston, C. J., citing the Hodges case and the Odie case.
Turning our attention now to the instant case, let us examine the felony counts joined in the information. The counts charging the defendant with kidnaping in the first degree and with the rape of Mrs. Harris grew out of the same transaction and were part of the same plan of the defendant in perpetrating the acts. These are properly joined with the count charging assault with intent to rape committed one week later. As between the first two and the latter, the offenses are of the same general character, requiring the same mode of trial, the same kind of evidence and the same kind of punishment. The trial of the defendant, therefore, on the several counts joined was within the sound discretion of the trial court and no error was committed by the trial court in overruling the defendant’s motions.
Actually, the state was obligated to charge the defendant with each of these counts in one information, unless there was an intention to abandon the third count completely. G. S. 1949, 62-1449, provides as follows:
“When one is properly charged in one or more counts of a complaint, indictment, or information with an offense, or offenses, against any of the laws of the state, and upon the trial of the action evidence is admitted of other offenses which might have been included as other counts in the complaint, indictment, or information, or on which the state might have elected to rely in the action then being tried, a conviction or acquittal on the charge, or charges, as made in the complaint, indictment, or information, shall operate as a bar to any subsequent prosecution of the same person in another action for any act or acts for which the state could have asked for a conviction under the complaint, indictment or information in the former trial.”
This statute was construed in State v. Momb, 154 Kan. 435, 119 P. 2d 544:
“It may have been the purpose and intent of the lawmakers to protect a defendant from the expense and harassing which results from prolonged criminal litigation in a multiplicity of actions when a single action might adequately serve the purpose. It may have been the thought of the lawmakers that the rule touching the purpose for which evidence of other similar offenses may be introduced did not always afford a defendant adequate protection before a jury. It may have been the legislative intent and purpose to protect the taxpayers against the mounting costs of needless criminal litigation. The wisdom of the enactment, however, or the legislative motive are not our concern. It is not our province to determine what the law should or should not be. It is our duty to ascertain and, if possible, to make effective the legislative will . . .” (p. 441.)
The confession of the defendant in the instant case included statements regarding all three counts of the information. A similar situation was presented in the case of State v. Neff, supra, where the court said in the fifth syllabus:
“Where proof of the commission of related and similar offenses consists in one written voluntary confession, on which the state must rely for con viction of each offense, the state is not required to file separate informations on each offense and thereby defeat a prosecution of the second offense by virtue of G. S. 1935, 62-1449.” (Emphasis added.)
If the state used the confession as evidence it became mandatory, unless the state abandoned the third count, that all three counts be joined in one information. In the instant case all of the felonies charged could be properly joined, and the defendant was not prejudiced by the court’s ruling on the defendant’s motions to require the state to elect.
Prior to discussing the admission of the testimony of Mrs. Brakey given at the preliminary hearing, we shall consider a construction of the kidnaping statute, G. S. 1949, 21-449.
This is the first time this court has been directly called upon to construe and interpret the above cited statute concerning kidnaping in the first degree. Cases dealing with the construction of G. S. 1949, 21-450, kidnaping in the second degree, have been before this court. (State v. Lammon, 153 Kan. 822, 113 P. 2d 1052; and State v. Myers, 154 Kan. 648, 121 P. 2d 286.)
The defendant specified as error the giving of certain instructions by the trial court to the jury relating to kidnaping in the first degree. The defendant complains generally of the instructions throughout wherein kidnaping is referred to, but specifically objects to Instruction No. 5 which reads:
“5. Under Count 1 of the Information and the evidence in this case the defendant may be convicted of kidnaping in the first degree or he may be acquitted, as the jury may determine. The word ‘kidnap’ as used in these instructions means the taking, carrying away, and detention of a person against his will. It may be accomplished either by actual physical coercion or force to the body of such person, or by coercion of the will of such person by threats, fear, intimidation, or other inducements which deprive him of his will to resist. In this case the material elements of the offense charged in Count 1 are as follows:
“A. That on February 21, 1955, in Wyandotte County, Kansas,
“B. The defendant, loseph Zebedee Brown, without lawful authority seized, confined, and carried away Mrs. Eva Harris against her will, and
“C. That while so confined, bodily harm was inflicted upon the said Eva Harris.
“If the State has not proved each of these elements to your satisfaction beyond a reasonable doubt, then you can not find the defendant guilty as charged in Count 1 of the Information. If you believe, however, from the evidence beyond a reasonable doubt that on February 21, 1955, the defendant, loseph Brown, without lawful authority, did compel and coerce Mrs. Eva Harris by force, threats, intimidation, or otherwise to remain in her car and to accompany him to the place described in the evidence, against her will, and if you further believe from the evidence beyond a reasonable doubt that while so confined against her will bodily harm was in any way inflicted upon her, then you should find the defendant guilty of kidnapping as charged in Count 1 of the Information.”
The principal objection of the defendant is that kidnaping in the first degree defined by the statute hereinafter set forth embraces just one crime, which is kidnaping with the intention of causing another to pay ransom or reward. The defendant goes back into history as far as Moses wherein manstealing was denounced and made a serious crime punishable by death. (Ex. 21:16 and Deut. 24:7.) By this process the defendant, tracing the law of kidnaping through the civil law, the common law, and into the modem kidnaping statutes, endeavors to establish that statutes dealing with kidnaping are grouped into two types. The first includes the words “reward or ransom” and limits the offense to extortion generally, and the second type prescribes and punishes any “forcible taking away” for whatever purpose. Defendant points out that the kidnaping statute under which he is charged, G. S. 1949, 21-449, was adopted by the legislature of this state in the year 1935, which was just a few years after the enactment of the original Lindbergh law by Congress in 1932, which was amended in 1934. This federal law grew out of the Lindbergh kidnaping case where ransom was the motive and the victim was taken from one state to another.
The original Kansas kidnaping law was very general in wording and veiy broad in its application. In substance, it provided that every person who shall without lawful authority forcibly seize or kidnap any other person with intent to cause such person to be sent or taken out of the state, or to be secretly confined within the state against his will, or in any way held against his will, shall upon conviction be punished by confinement at hard labor not less than five nor more than ten years. The gist of the offense under the old law was the unlawful seizure, taking, detention, concealment or carrying away of the kidnaped person.
This act was broad enough to include any purpose of kidnaping which the perpetrator might consider of sufficient benefit to himself to induce him to undertake the kidnaping.
G. S. 1949, 21-449, makes kidnaping in the first degree punishable by life or not less than twenty years imprisonment in the penitentiary at the option of the court or the jury trying the case. For purposes of clarity in further discussion we have separated certain clauses of the statute by inserting the numbers (1), (2), (3) and (4) in the statute which provides:
“If any person or persons [1] shall willfully, without lawful authority, seize, confine, inveigle, decoy, kidnap or take or carry away by any means whatever, any person or persons or cause such child or person or persons to be secretly confined against his will, [2] for the purpose and with the intention of causing the father or mother or any other relative of the person so kidnaped, or any other person, to pay or offer to pay any sum as ransom or reward for tire return or release of any person or persons, [3] or if bodily harm is in any way inflicted upon the person or persons so kidnaped, [4] said person or persons so guilty of the above-mentioned acts or act, shall, on conviction, be deemed guilty of kidnaping in the first degree . .
The statutory enactment in 1935 broke down the offense of kidnaping into three degrees. The original kidnaping act of 1868 as it appears in R. S. 1923, 21-438, was changed and re-defined into first and second degree kidnaping. R. S. 1923, 21-440, was reenacted with some changes, increasing the penalty, and re-defined as kidnaping in the third degree.
In an effort to ascertain the reason as well as the meaning of a criminal statute, a court may resort with propriety to the evil which the statute was designed to remedy. For this it will look to the contemporaneous events and situation that existed at the time the statute was pressed upon the attention of the legislature. (Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; and United States v. Union Pacific R. R. Co., 91 U. S. 72, 23 L. Ed. 224.)
“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislature intended to include the particular act . . .” (Holy Trinity Church v. United States, supra, p. 459.)
Application of the foregoing rule of construction is significant in that we must know how much to read out of G. S. 1949, 21-449, on the ground that a literal application of the words would lead to absurd consequences. Thus, under provision No. 1, the repeated use of the disjunctive “or” leads to numerous possibilities far removed from kidnaping. For example, a literal application of a certain word arrangement would define what normally constitutes an act of simple assault as kidnaping in the first degree. This construction is absurd and clearly not the legislative intention. Generally criminal statutes are to be strictly construed in favor of the accused. (State v. Bowser, 158 Kan. 12, 145 P. 2d 135.) In a strict construction of a penal statute a presumption exists that the legislature intended exceptions to its language which would avoid results of injustice, oppression or an absurd consequence, since the reason for the law in such case prevails over its letter.
In State v. Waite, 156 Kan. 143, 131 P. 2d 708, this court in explaining the strict construction rule regarding penal statutes said:
“. . . For reasons which stem from our fundamental concepts of individual human rights a criminal statute should not be extended by courts to embrace acts or conduct not clearly included within the prohibitions of the statute . . .” (pp. 145, 146.)
A reasonable construction must be given criminal statutes to promote the efficient enforcement of the criminal law, to prevent crime and to promote the ends of justice. The object of statutes prohibiting kidnaping is to secure the personal liberty of citizens and to secure to them the assistance of the law necessary to release them from unlawful restraint. (State v. Myers, supra; and Macomber v. State, 137 Neb. 882, 291 N. W. 674.)
The element of “intent” in a kidnaping statute is treated in 31 Am. Jur., Kidnapping, § 8, p. 815, where it is said:
“Whether criminal intent is the dominating element in the crime of kidnapping depends upon the language of the particular statute involved; the statutory definitions of kidnapping vary greatly in phraseology and meaning. Under some, the gist of the offense is the act of forcibly seizing, carrying away, imprisoning, or secreting any person without authority of law; under such a statute the criminal intent necessary to the existence of the offense is implied in the prohibited act. Under other statutes, the dominant element of the offense is the intent with which the acts enumerated in the statute are committed. The particular intent of the kidnapper is immaterial, unless it is required by statute that the taking must be for such an intent as concealment, sending out of the state, extortion, or robbery, etc. Where a particular intent is required, the taking or detaining must be for one of the prohibited purposes.”
The defendant argues that the words “so kidnaped” used in provision No. 3 in G. S. 1949, 21-449, above quoted, refer to an offense described by provisions No. 1 and No. 2 in the statute. In other words, the defendant argues that the kidnaping must have been done with the intention of exacting ransom or reward before the provision relating to bodily harm has application. This con struction would nullify provision No. 3 in the statute since the crime of kidnaping in the first degree would be complete under provisions No. 1 and No. 2 without provision No. 3.
• The word “kidnap” has a technical meaning. It is derived from the common law, and must be interpreted in the light of its technical meaning in common law. Both under the common law and under a statute, unless clearly modified, it means to take and carry away any person by unlawful force or by fraud, and against his will.
By provision No. 4 the prohibited acts are made kidnaping in the first degree. Provision No. 1 is designed to define kidnaping in the statute. Significantly contained within the wording of both provisions No. 2 and No. 3 are the words “so kidnaped.” These words are important because they specifically have reference to provision No. 1 only, which defines kidnaping.
This leads to the conclusion that the provisions of G. S. 1949, 21-449, denounce two acts as kidnaping in the first degree. The one is kidnaping with the intention of exacting ransom or reward and the other is kidnaping if bodily harm is in any way inflicted upon the person or persons kidnaped. The dominating element of the offense in the former is the intent with which the act is done, while in the latter the gist of the offense is the actual inflicting of bodily harm upon the person kidnaped. There the criminal intent necessary to the existence of the offense is implied in the prohibited act. (State v. Myers, supra; 114 A. L. R. 870.)
The situation which existed at the time the Kansas legislature passed the act under consideration has a definite bearing upon the act adopted. Public feeling was tense. Charles A. Lindbergh was the first flier to cross the Atlantic Ocean non-stop. While exceedingly popular in this country his eldest son of tender years was kidnaped, taken across a state line and held for ransom. When the boy was eventually found he was dead. Newspaper publicity was carried daily in headlines on the front page throughout the nation as to progress and reports on the case. It began with tire events of tire kidnaping and continued through the trial of the offender. As an outgrowth of the case the federal law directed against kidnaping commonly known as the “Lindbergh Law” was enacted. Kansas followed by strengthening its kidnaping law, and it was without doubt the intention of the legislature to denounce two acts in the statute as kidnaping in the first degree.
A California kidnaping statute provided the death penalty for kidnaping if a person suffered bodily harm and that statute was held to be valid notwithstanding the fact that it was enacted allegedly as a result of an aroused public feeling against kidnaping. In People v. Tanner, 3 C. 2d 279, 44 P. 2d 324, the California court spoke of “bodily harm” in the following language:
“It is the contention of appellants that no bodily harm was suffered by any of the parties against whom the crime was committed. It will be noted that the statute does not use the words actual bodily harm, or great bodily harm, or bodily injury. . . . Bodily harm, is generally defined as ‘any touching of the person of another against his will with physical force in an intentional, hostile and aggravated manner, or projecting of such force against his person.’ (8. C. J. 1134; People v. Moore, 50 Hun (N. Y.), 356 [3 N. Y. Supp. 159]; 1 Words and Phrases, p. 817; King n. Hostetter, 7 Canadian Criminal Law, 221.). . . .” (p. 297.)
Bodily, used singly, is defined as pertaining to the body. “. . . It is opposed to mental . . . physical is often synonymous with bodily; as, physical discomfort, physical suffering . . .” Harm is defined as “1. Injury; hurt; damage; . . . 2. Grief; pain, sorrow. 3. Evil; wrong; wickedness.” (Webster’s New International Dictionary, Second Edition.)
It was held in People v. Brown, 29 C. 2d 555, 176 P. 2d 929, that any touching of a victim against her will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnaper is “bodily harm” within the meaning of the statute providing the death penalty if the person kidnaped suffered bodily harm. There the defendant was convicted of robbery in two counts, of rape and of kidnaping for the purpose of robbery. That court said the forcible rape itself constituted bodily harm.
We are in full accord with the position taken by the California court in the Tanner and Brown cases.
Other cases dealing with the California kidnaping statute are: People v. Chessman, 38 C. 2d 166, 238 P. 2d 1001; People v. Mendoza, 122 C. A. 2d 185, 264 P. 2d 223; and People v. Thompson, 133 C. A. 2d 4, 284 P. 2d 39.
In People v. Florio, 301 N. Y. 46, 92 N. E. 2d 881, the New York court held that kidnaping and abduction of a woman were separate offenses.
The fact that rape in the instant case must be construed to supply the element of bodily harm required by the kidnaping statute is no obstacle to a prosecution for both offenses in the criminal law. (See annotation in 17 A. L. R. 2d 1003.) In the case of Wagner v. Edmondson, 178 Kan. 554, 290 P. 2d 98, it was held by this court that the test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge, and if not, the fact that both charges relate to and grow out of one transaction does not make a single offense where two distinct offenses are defined by the statute. (See, also, Wiebe v. Hudspeth, supra.)
Under all of the facts and circumstances presented by the record before this court, we are of the opinion that the trial court properly instructed the jury on kidnaping in the first degree. The instruction was properly limited to such matters as were before the jury on the evidence presented.
Defendant next argues that if it was proper to give an instruction on kidnaping in the first degree, the court should also have instructed on kidnaping in the second degree which is defined in G. S. 1949, 21-450, even though no request was made for such instruction by the defendant. A careful examination of the record before this court in the instant case does not disclose any evidence which would justify the trial court in giving an instruction concerning kidnaping in the second degree. The defendant was either guilty of kidnaping in the first degree under the evidence or he was not guilty of kidnaping in any degree. The defense was concentrated on alibi.
We shall next consider the admission into evidence of the transcript testimony of Mrs. Brakey given at a preliminary hearing where the defendant was confronted by the witness and cross-examined her.
On this point defendant specified as error the admission of the testimony of Mrs. Ruth M. Brakey: To be read from the transcript to the jury; to remain in the record after timely objections to the same; in refusing to declare a mistrial; in ruling that the testimony of Mrs. Brakey was not available on the day the transcript was read to the jury; and in overruling the defendant’s motion for a new trial.
Prior to the admission of testimony given in a prior hearing two requirements are essential — first, that the testimony at the prior hearing be given under oath, and second, that the defendant be confronted by the witness at the prior hearing and have the right to cross-examine. (The State v. Wilson, 24 Kan. 189; The State v. Simmons, 78 Kan. 852, 98 Pac. 277; and State v. Foulk, 57 Kan. 255, 45 Pac. 603.)
The first syllabus in the case of The State v. Nelson, 68 Kan. 566, 75 Pac. 505, reads:
“The fact that a witness against the defendant in a criminal case is outside of the state at the time of the trial, and therefore beyond the reach of process, authorizes the introduction in evidence of the testimony given by the witness at a former trial of the same case, notwithstanding an opportunity to subpoena the witness may have been neglected by the prosecution. The requirement of die bill of rights that the accused shall be allowed to meet the witness face to face is complied with in that he has already at the former trial been confronted by the absent witness, and at the later trial meets the witness who gives evidence of what such former testimony was.” (Emphasis added.)
The admissibility of the testimony of a witness at a former trial does not depend so much on the presence or the availability of the witness as it does on the availability of the testimony, such as where a statutory privilege is claimed because of relationship to the accused, (The State v. Stewart, 85 Kan. 404, 116 Pac. 489; and State v. Woods, 130 Kan. 492, 287 Pac. 248) or where a witness is excused from testifying on the ground his testimony would incriminate him. (State v. Helbert, 135 Kan. 726, 12 P. 2d 726; and State v. Neff, supra.)
In the instant case it cannot be denied that the witness, Mrs. Ruth M. Brakey, was under oath or that the defendant had a right to cross-examine the witness at the preliminary hearing. What is of greater concern, however, is whether or not the testimony of the witness was available. This is dependent upon the foundation laid for the admission of such testimony at the trial of the defendant.
It must be made to appear that the witness who gave such testimony at the former hearing cannot by the exercise of reasonable diligence be produced. (The State v. McClellan, 79 Kan. 11, 98 Pac. 209.) In the McClellan case this court spoke of the rule as follows:
“Other causes for the use of such evidence than those enumerated may, in some cases, be sufficient; but as a general rule it may be said that whenever it is reasonably possible to produce the living witness it should be done. The right of every litigant to meet the important witnesses of his adversary face to face, whenever and wherever their evidence is likely to affect his material interests, is recognized by all practicing lawyers to be of inestimable value. This is especially true of defendants in criminal cases, and they should receive reasonable protection in this respect, even when, as in this case, their constitutional right to meet the witnesses against them face to face has been .exercised by a cross-examination of the witness at his previous examination. The right to have all adverse witnesses testify personally exists independent of the constitution, and the spirit of common fairness which pervades all courts of justice is a sufficient guaranty that it will be recognized and enforced. In legal theory it may be presumed that witnesses will always tell the same story when under oath, but, in practice, we know they do not. Mental confusion, lapse of memory, and other circumstances existing when a witness testifies, may give color to his evidence which subsequent reflection will change materially. Because of this fact, familiar to all lawyers, parties often prefer to use the former testimony of a witness rather than take the hazard of a reexamination. This should not be permitted when the witness can be produced. For a full discussion of this question, and an elaborate citation of authorities, see Railroad Co. v. Osborn, 64 Kan. 187, 67 Pac. 547; The State v. Nelson, 68 Kan. 566, 75 Pac. 505; The State v. Harmon, 70 Kan. 476, 78 Pac. 805.” (pp. 12, 13.)
Regarding the fact that a proper foundation must be laid and that it must be shown to the satisfaction of the court that due diligence has been exercised to secure the presence of the witness, the following language appears in State v. Carter, 149 Kan. 295, 87 P. 2d 818:
“Did appellants meet the requirement? We do not think so. There was nothing before the court to justify admission of the transcript except the bare 'statement of counsel that the witness ‘is now a resident of the state of Missouri and out of the jurisdiction of this court.’ No proof of any sort in support of the statement was offered. No facts tending to establish his absence from the state were submitted. There is nothing to indicate that any .effort had been made to secure the presence of the witness except the praecipe directing that subpoena be served at the courthouse on the day of the trial. The praecipe was tantamount to telling the sheriff that he need not look for the witness anywhere else o.r at any other time.” (p. 297.)
The query, therefore, is whether the state in the instant case laid a proper foundation for the admission of the transcript testimony of Mrs. Ruth M. Brakey.
After the assistant county attorney, Mr. George, finished with his last witness in the prosecution’s case before the trial court, he made this statement out of the hearing of the jury:
“Mr. George: Our next witness is in Missouri and not subject to subpoena, and we would like to introduce the testimony at once of Mrs. Ruth Brakey. If counsel is going to object to that, we should argue it out of the presence of the jury. If we have a recess we might do it before the jury returns.
“Mr. Hayward: You know I am going to object.
“The Court: All right, we will have a recess.
"(Jury dismissed for recess.)”
Many pages in the abstract of the record before this court consist of colloquy between court and counsel concerning the efforts made to procure this witness. Briefly summarized, they amount to the fact that Mrs. Brakey worked at a department store in Kansas City, Kansas; that she was highly nervous and temperamental; that the deputy sheriff had served a subpoena by leaving it with Mrs. Brakey’s employer at Maslan’s Department Store where she worked in Kansas City, Kansas, while Mrs. Brakey was out at lunch; that the assistant county attorney was in contact with Mrs. Brakey by telephone on several occasions; that Mrs. Brakey lived in Kansas City, Missouri, and on the day that her testimony was to be given refused to come to Kansas; that the attempted service of the subpoena was made approximately one week prior to the presentation of the prosecution’s case; and that Mrs. Brakey’s doctor who resided in Kansas City, Missouri, submitted a letter through Mrs. Brakey to the assistant county attorney stating that Mrs. Brakey should not be subjected to any conditions which excited her.
Further conversations took place on January 31, 1956, as follows:
“The Court: When did you last see her [Mrs. Brakey]?
“Mr. George: I believe it was Monday I was talking to Mrs. Brakey [January 23, 1956],
“The Court: Where?
“Mr. George: At Maslan’s where s'he is employed. She told me then she would like to come in but her health would not permit it, and she had a letter from her doctor.
“Mr. Hayward: A subpoena could have been served.
“The Court: That was Monday a week ago that you went down and asked her to come in, and she indicated she would or would not?
“Mr. George: She indicated she could not because of her health.
“The Court: Did she say she couldn’t?
“Mr. George: I said that. She said then, T will be glad to come up and point him out and identify him, but I will not take the stand and go through Mr. Hayward’s cross-examination.’ I told her we were going to issue a subpoena for her and would expect her to testify.
“The Court: Did you issue a subpoena?
“Mr. George: Yes, sir, a subpoena was issued, Mr. Brown took the subpoena to Maslan’s.
“Mr. Thornton Brown, Deputy Sheriff: Yes.
“The Court: What do your records show?
“Mr. Thornton Brown: My record shows I received the subpoena on 1-25-56. I served tire subpoena 1-25-56 on Mr. Maslan, the boss of the dry-goods store. He said the lady was out to dinner. I asked him would he accept service, and I wrote down here, ‘Served on Mr. Maslan, boss of store, personal service, Sixth and Minnesota Avenue.’” (Emphasis added.)
Counsel for the defendant repeatedly objected throughout the trial to the admission of the transcript testimony of Mrs, Brakey who was a complaining witness. On the 7th day of February, 1956, counsel for the defense informed the court that he had information that Mrs. Brakey had consistently been at her work at Maslan’s Store in Kansas City, Kansas, since the date upon which she was to testify, and had been there before that date. Unexpectedly on the afternoon of the 7th day of February, 1956, the state produced Mrs. Ruth M. Brakey who was present in the courtroom. The defendant was interrupted in the presentation of his case to the jury when one of the assistant county attorneys announced that he had brought in Mrs. Brakey. He requested that her testimony should then be taken. That is, that defendant’s counsel should then withdraw his witness and let Mrs. Brakey testify. This placed the defendant in a very precarious position. If the defendant objected to her testimony it would be prejudicial to his cause, and if he did not object it would be prejudicial in that the testimony of Mrs. Brakey would be before the jury on two different occasions, once as part of the prosecution’s case by transcript testimony, and again in the middle of defendant’s case by the direct testimony of the witness. Furthermore, the state brought Mrs. Brakey into the courtroom and had her seated there while the rule was invoked that witnesses were to be separated from the courtroom. This was unknown to the defendant until the state announced that they had Mrs. Brakey in the courtroom to testify.
Counsel for the defendant objected to the interruption and to the admission of the testimony of Mrs. Brakey in person during the defendant’s case. He moved the court to discharge the jury and declare a mistrial. The trial court sustained the objection to Mrs. Brakey testifying but overruled defendant’s motion for a mistrial.
The foregoing facts represent the substance of the statements made by counsel for the state. They were made for the purpose of establishing a foundation for the admission of the testimony of Mrs. Brakey by transcript as given at the preliminary hearing. Statements of counsel, however, are not evidence any more than are the opening statements of counsel in the presentation of a case before a jury or to the court. The foundation, which the law contemplates, is a foundation in evidence. It is proof that is required. Proof that due diligence has been exercised and that the testimony of the witness is not available. A proper foundation for the intro duction of testimony of the character now under consideration required that the assistant county attorney and the deputy sheriff, as well as the other necessary witnesses, testify under oath with respect to the facts relied upon as the foundation, giving the defendant full opportunity to cross-examine. In addition, documentary evidence relied upon for the foundation should he properly introduced in evidence. (State v. Carter, supra.)
In a recent case, In re Estate of Snyder, 181 Kan. 222, 310 P. 2d 944, this court upon motion of the appellee struck an abstract from the files of this court wherein the appellant’s version of the evidence was narrated from statements of counsel made in the trial court.
In the instant case the only evidence before the court was that presented by the defendant, when he called Dr. R. L, Edwards, Jr., of Kansas City, Missouri, to the witness stand to testify. He was the doctor of Mrs. Brakey and testified that he did not at any time advise Mrs. Brakey that she should not appear in court, although he did say from a nervous standpoint she was not able to appear in court. He further acknowledged that he had written a letter for the county attorney several months prior to the date of his testimony concerning Mrs. Brakey.
It was improper for the trial court to admit the testimony of Mrs. Brakey as given at a former hearing without a proper foundation. To admit such evidence, particularly of a complaining witness, was materially prejudicial to the substantial rights of the defendant. Aggravating the prejudice was the effort made by the state to have Mrs. Brakey testify in person as a witness during the presentation of the defendant’s case. Such interruption was highly prejudicial. Counsel for the defense had no legal avenue from which to extricate the defendant from the predicament.
Taking into consideration all of the facts and circumstances presented by the record in this case, we are of the opinion that the introduction of testimony of the character now under consideration without proper foundation resulted in reversible error and requires the granting of a new trial.
The judgment is reversed and the cause remanded with directions to grant a new trial.
Wertz, J., dissents from paragraph 7 of the syllabus and the corresponding portion of the opinion, and would affirm the judgment in toto.
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The opinion of the court was delivered by
Robb, J.:
This is-an appeal from a judgment based upon a jury’s verdict in a tort action for damages as a result of personal injuries caused by a negligent wrongdoer.
For clarity in this opinion the plaintiff and defendant will he referred to as they were in the court below and it will not hereafter be necessary to mention the Iowa Home Mutual Casualty Company, defendant’s liability insurance carrier, although it is, of course, one of the appellants.
The first amended petition, hereafter referred to as the petition, was challenged by a general demurrer and a special demurrer on the grounds the allegations thereof disclosed plaintiff, as an employee, voluntarily assumed the risk of his employment by defendant, and further, that plaintiff was guilty of contributory negligence proximately causing his injury and resulting damage. By reason of these demurrers we will briefly summarize the pertinent allegations of the petition which showed that defendant operated his cattle truck under licenses of the Interstate Commerce Commission and the Kansas Corporation Commission. On or about September 10,1955, plaintiff, at his place of residence, was assisting defendant in loading hogs into defendant’s truck. The hogs were owned equally by plaintiff and Lawrence Gilmore. Defendant had backed his truck to within approximately six feet of a barn doorway from which the hogs were to be loaded into the truck by means of a movable chute. Defendant saw the chute was too short and stated he would back up two feet further. Plaintiff was to stand behind the truck and tell defendant when he had backed “a couple of feet.” As directed, plaintiff stood behind the truck while defendant backed it and when the approximate distance of two feet had been covered, plaintiff shouted for defendant to stop. Defendant paid no attention to plaintiff’s shouted commands but continued carelessly and negligently to back the truck at an increasingly high rate of speed. Plaintiff yelled for him to stop but was ignored and the rearward motion of the truck was so quick, abrupt and in such complete contradiction of defendant’s stated purpose to back only a couple of feet that plaintiff had no warning of danger and was unable to get out of the way. The defendant continued to back the truck until it struck the side of the barn and plaintiff was pinned between the stock bed of the truck and the framework of the barn. Plaintiff received serious injuries and lost consciousness.
Then followed allegations showing the injuries and all the elements of damages suffered by the plaintiff as a result of such in juries. Suffice it to say without detailing them the alleged injuries and damages were well and fully pleaded.
The section of the demurrer having to do with the elements of a general demurrer does not merit our laboring therewith and we will pass on to the discussion of the special demurrer since it raises the material questions.
We shall consider the questions raised by the special demurrer in the order in which they appear therein, notwithstanding they were treated in reverse order by the parties in their briefs. As has been frequently stated, a cardinal rule of this court is that in determining the sufficiency of a petition when attacked by demurrer, any defect must be made to appear on the face of the pleading. (Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172; Robinson v. Muller, 181 Kan. 150, 309 P. 2d 651.)
Was plaintiff an employee of defendant? While the first phase of the special demurrer is limited to assumption of risk because plaintiff was an employee of defendant, the parties undertake to cover the field of voluntary assumption of risk in their briefs but we see very little, if any, difference between the application of the rule to an employer and employee situation than in any other relationship. Defendant contends that an employee may have a general employer and also a special employer at the same time. We have no quarrel with him on that point because we have so held in Smith v. Brown, 152 Kan. 758, 761, 107 P. 2d 718; Beitz v. Hereford, 169 Kan. 556, 220 P. 2d 135; Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494. These cases could be supplemented by many more but they are sufficient. This contention, however, does not end the matter. The petition does not affirmatively show that plaintiff was an employee of defendant under the requirements for establishment of that relationship as they are set out in Beitz v. Hereford, supra.
Defendant argues the danger here was inherent and obvious and relies on the closely divided opinion of this court in Horton v. Atchison, T. & S. F. Rly. Co., 161 Kan. 403, 168 P. 2d 928, but an examination of that case, which involved a railroad crossing with a string of boxcars on each side of the intersecting highway, fails to show the analogy between that case and this one. On this point our attention is also directed to Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075, where a brakeman slipped and fell on snow while undertaking to couple one portion of a train to another when the train was moving. His leg was run over and crushed. That case is closer to the one under consideration than was the Horton case but yet it is not so analogous as to be controlling here. Another authority relied upon by defendant is Cooper v. Southwestern Bell Telephone Co., 159 Kan. 67, 151 P. 2d 692, wherein the plaintiff was an office employee who had objected to a slack telephone cord which had been installed by the defendant company but plaintiff continued to walk close to the cord until her foot was caught in it causing her to fall and receive injury. There we find the rule (quoted from Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883, also cited by defendant) that,
“ ‘One who, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, freely and voluntarily continues therein, cannot recover damages for injuries he may suffer’.” (p. 69.)
In the Cooper case the following cases were cited by plaintiff: Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197; Carlisle v. Union Public Ser. Co., 137 Kan. 636, 21 P. 2d 395; Worley v. Kansas Electric Power Co., 138 Kan. 69, 23 P. 2d 494; and this court, in distinguishing those cases from the Cooper case, said,
“In each of those cases the person injured had no knowledge or notice of the danger which eventuated in his injury. In the instant case, plaintiff was keenly aware of the danger of tripping over the telephone wire, even if it be assumed that it had been negligently placed by the telephone company at the location to which plaintiff objected from the inception of her employment.” (Our emphasis.) (pp. 69, 70.)
It can thus be seen that the Cooper case has already been distinguished from the one here involved.
Another case cited by defendant (Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P. 2d 723, involved a farmer of many years’ experience who was injured while handling certain farm implements which had a revolving universal joint as a part of a take-off power shaft. He sought to control the machinery by a manifestly dangerous and unusual method and he was thereby injured, but he could not recover because of his assumption of risk. This case dealt with inherent and latent or patent defects in a product for which a manufacturer would or would not be liable if injury proximately resulted therefrom. We are not inclined to consider that case as controlling here.
Other cases wherein the doctrine of the assumption of risk was raised by demurrer to defeat a tort action for negligence are Davis v. City of El Dorado, 126 Kan. 153, 267 Pac. 7; Parker v. City of Wichita, 150 Kan. 249, 92 P. 2d 86; and similarly in a compensation case (Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103).
In all these cases it is apparent the doctrine applies only where there is knowledge and appreciation of the danger and peril (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253). Coupled with such knowledge and appreciation there must be an element of voluntarily placing oneself in the way of such danger and peril. (38 Am. Jur., Negligence, § 173, pp. 847, 848.)
While assumption of risk is somewhat akin to contributory negligence, these two doctrines of law are not synonymous because assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs. Contributory negligence arises out of a tort; the essence of it is carelessness; it may or may not imply intentional exposure to a known danger; it is a matter of conduct; a contributorily negligent act leads more immediately to a specific accident. Another difference is that assumption of risk denies defendant’s negligence while contributory negligence admits defendant’s negligence but denies it is the proximate cause of the accident. (65 C. J. S., Negligence, § 117, pp. 709-711; 38 Am. Jur., Negligence, § 172, p. 847.)
In pursuing his theory that the petition shows plaintiff’s contributory negligence defendant further argues that a “couple of feet” was indefinite like a “couple of days” or a “couple of minutes,” but we cannot agree that such a standard could be adopted here under the allegations of the petition, which definitely states two feet. On the contrary, the petition discloses the proficiency of defendant as an interstate and intrastate licensed truck driver, that the chute was short, and that only a slight backing of two feet was necessary to allow the use of the chute. These allegations would deny rather than admit contributory negligence was a proximate cause of the accident.
We are unable to say as a matter of law this petition discloses on its face that plaintiff had assumed the risk or was guilty of contributory negligence so as to reverse the trial court’s order overruling the special demurrer.
Plaintiff, who was a man fifty-nine years of age at the time of the accident, testified: He had called defendant the preceding evening to come over to take the hogs to market; when defendant arrived the next morning plaintiff got in the truck with him and they rode down to the barn where the hogs were; defendant stopped the truck eight or ten feet from the barn; the chute was a “couple of feet” short; defendant stated he would get, in the truck and back up a couple of feet; plaintiff was to stay right there behind the truck and “holler” at defendant when he got back far enough; defendant started backing up and when he got back far enough, plaintiff hollered a couple of times; defendant just kept coming; there was no use getting out of the way because he was supposed to come back only a couple of feet, but he came eight or ten feet back; plaintiff saw defendant coming and he was “scared so bad” he just “froze like he couldn’t move”; then defendant hit plaintiff; plaintiff was toward the righthand side of the truck and he was struck in the chest.
Some pictures were introduced showing a large upright 12 x 12 inch timber which tilted so that a plumb line from the top of the timber to the ground showed a distance of 11 % inches from the bottom of the timber to the ground end of the plumb line. There had been a 1 x 12 inch board nailed onto the timber. The top of the truck had struck this 1 x 12 inch board with such force that it caused it to splinter.
Lawrence Gilmore testified on behalf of plaintiff. He was the owner of a one-half interest in the hogs; he and defendant had loaded the hogs after plaintiff was injured; defendant told him he did not know what had happened; there were some weeds down there and he could not see what he was doing; defendant said the old man (meaning plaintiff) did not have any business being down there anyway; when he and defendant arrived at the scene there were tracks; there was a clear cleat mark “like where a wheel had spun when it hit the barn and then stopped”; he noticed where the top of the truck rack had broken the 1 x 12 inch board; at this time defendant started backing the truck again and Gilmore hollered at him five times to stop and finally defendant stopped; defendant told Gilmore he could not hear anything with the motor running.
To this evidence defendant lodged a general demurrer and a special demurrer on the grounds that the evidence affirmatively showed contributory negligence on the part of plaintiff as a matter of law, which demurrers the trial court overruled. In the briefs both contributory negligence and assumption of risk were argued on this point. The evidence amply supported the allegations of the petition and applying the rule that in testing the sufficiency of evidence when attacked by demurrer all the evidence will be considered as true, it will not be weighed as to any contradictory parts or discrepancies therein between direct or cross-examination, or among the witnesses, and every favorable inference to be drawn therefrom will be given to such evidence (Koch v. Suttle, 180 Kan. 603, 606, 306 P. 2d 123; Boggs v. City of Augusta, 180 Kan. 831, 308 P. 2d 72), we can only conclude the evidence was sufficient and the trial court was correct in its order overruling defendant’s demurrer thereto.
Without detailing the testimony of defendant, we think it negatived the presence of assumption of risk so far as the record before us is concerned. There was no showing that plaintiff was an employee of defendant and we think the trial court was correct in refusing the requested instruction to the effect that if the jury found plaintiff had voluntarily and unnecessarily placed himself in a position of peril, or in an obviously dangerous position in carrying out defendant’s direction without protest, then the jury should find for the defendant. Likewise, the trial court was justified in concluding there was no evidence in the record to support the other requested instruction to the effect that both parties had that knowledge common to all mankind of what is inherently dangerous and perilous. The evidence did not show there was any inherently dangerous and perilous condition until the truck had exceeded the distance that it was supposed to cover in its backing operation. (65 C. J. S., Negligence, §§ 118, 119, pp. 711-720; Wainscott v. Carlson Construction Co., 179 Kan. 410, 295 P. 2d 649.)
Certain of the trial court’s instructions were objected to by defendant but when the instructions, which included one on unavoidable accident, are all considered together and in the light of each other, they fully covered the case. The instructions seem as fair to one party as to the other and are well supported by the pleadings and evidence. It should be noted the trial court was requested to work out, with the assistance of both counsel, the instruction on voluntary assumption of risk but it is admitted this request and the discussion thereon do not appear in the record and we, therefore, cannot consider them. (Baker v. Western Cas. & Surety Co., 164 Kan. 376, 190 P. 2d 850; Hill v. Hill, 170 Kan. 721, 726, 228 P. 2d 713; State v. Graham, 172 Kan. 627, 629, 242 P. 2d 1067.)
Before leaving this part of the controversy on the trial court’s refusal to give requested instructions and the purported erroneous instructions given, we wish to say we are of the opinion the trial court fully instructed on contributory negligence and no prejudice was shown to defendant’s rights in the fact that it did not pinpoint defendant’s theory of assumption of risk. Instructions to a jury must be based on the issues as they actually exist and not on a litigant’s theory of issues which are beneficial to his side of the lawsuit.
Other specifications of error have regard to special questions. Defendant requested some ten special questions, the first two of which were refused by the trial court. There was no error by reason of the refusal. The remaining eight requested questions, with slight revision in only one, were given by the court and answered by the jury in plaintiff’s favor. Then defendant asked to have some of the answers stricken. Those answers were supported by substantial competent evidence and they will not be disturbed on appeal. (Spencer v. Supernois, 176 Kan. 135, 268 P. 2d 946; Cooper v. Motors Insurance Corporation, 180 Kan. 770, 308 P. 2d 131.) In requesting a trial court to ask special questions, a party must not only comply with the statute (G. S. 1949, 60-2918) but he must also consider the result that even though the jury’s answers are adverse to his side of the litigation, he is bound by those answers and will not be heard to complain if there is any substantial competent evidence to support them.
Defendant claims that he was entitled to judgment on the special findings of the jury. The trial court did not agree and neither do we. Defendant concedes the answers were supported by evidence and without setting the amount, we conclude they were consistent with each other and with the general verdict. (McCracken v. Stewart, 170 Kan. 129, 135, 223 P. 2d 963; Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 428, 280 P. 2d 605.)
In regard to the trial court’s overruling and denying defendant’s motion for new trial, we are of the opinion that in view of what has been said there was no error in that ruling.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff is a banking corporation with its place of business at Lawrence, Kansas, and the duly appointed administrator, with the will annexed, of the will of Bertha C. Ellsworth, deceased. Defendant is the Methodist Home For the Aged, a corporation, with its principal place of business at Topeka, Kansas, where it operates a home for the aged.
The events leading up to the institution of this litigation are not in controversy and should be stated at the outset in order to insure a proper understanding of the appellate issues involved.
On September 13, 1953, Rertha C. Ellsworth, who desired to be admitted to the defendant’s home and was then single and more than seventy-one years of age, made a written application for admission to such home. Thereafter, having been advised her application had been approved, she was admitted to the home on May 10, 1954, and on the same date entered into the written agreement with defendant which is actually the subject of this litigation. Pertinent portions of such agreement, which we pause to note had been prepared by defendant on one of its standard forms, used for admission of members, read:
“This Agreement, made and entered into this 10th day of May, 1954, by and between The Methodist Home for the Aged, a Corporation, of Topeka, Kansas, Party of the First Part and Bertha C. Ellsworth, of Lawrence, Kansas, Party of the Second Part, Witnesseth:
“Party of the Second Part having this day given Party of the First Part, without reservation, the sum of $10,779.60 to be used and disposed of in the furtherance of its benevolence and charitable work as it may deem best, Party of the First Part admits Party of the Second Part into its Home as a member thereof during the period of her natural life, and agrees to furnish
“Fifth: It is clearly understood that Party of the Second Part has been received in accordance with the new regulations on a probation period of two months in which time she has the opportunity of finding out whether she desires to remain in the Home; and also find out whether the Home is able to satisfy the requirements. If it should be found advisable to discontinue her stay in the Home, then her gift, with the exception of $80.00 per month shall be refunded.
“The rules and regulations and by-laws of the Home as they now are and as they from time to time may be adopted and promulgated by the Board of Directors of said Party of the First Part are hereby referred to and made a part hereof and the Party of the Second Part hereby agrees to be bound by same. It is especially understood and agreed that in case of serious mental illness requiring hospital care and attention, that the First Party shall have the right to make proper arrangements for the treatment and care of the Second Party in a lawful manner in a proper State Institution, provided that if Second Party is discharged as completely cured to admit Second Party into the Home without further financial requirements.” (Emphasis supplied.)
The parties concede that defendant’s by-law, article 12, was in full force and effect on the date of the execution of the agreement and therefore, according to the terms of that agreement, is a part of the contract. It reads:
“Probationary membership means a short trial period while the member becomes adjusted to the life of the Home. The probationary member-ship shall not continue for a longer period than two consecutive months. If for any reason the trial member does not desire to remain in the Home he or she shall have the privilege of leaving. On the other hand, if the Home for any reason does not desire to continue the membership then the member shall be notified in writing and leave the Home within a week after such notice is given. Only members who do not have the money or securities to pay for their life Membership shall be granted tire privilege of paying by the month.” (Emphasis supplied.)
After execution of the May 10, 1954, agreement Rertha C. Ells-worth remained in the home until she died on June 10, 1954. At that time neither she nor the home had made an election as to whether she was to leave the home or remain therein after the expiration of the probationary period specified by its terms. However, it is conceded that during the interim, and on June 4, 1954, the plaintiff bank in' its capacity as trustee had paid the defendant the sum of $10,799.60 by a check, which defendant had cashed, specifying that such check was “In Payment of Life Membership for Rertha C. Ellsworth in the Methodist Home for the Aged, as specified in Agreement dated May 10, 1954”, and that defendant had acknowledged payment of that sum by a receipt of like import.
Upon the death of Rertha Ellsworth plaintiff was appointed by the probate court of Douglas County, Kansas, as Administrator CTA of such decedent. Thereafter it made written demand on the defendant for performance under the agreement, including pertinent by-laws, and demanded that defendant refund the estate of its decedent the amount paid pursuant thereto, less any amounts due the Home under its terms, particularly the fifth clause thereof. When this demand was refused plaintiff procured authority from the probate court to institute the instant action to recover such amount as an asset of the estate of Rertha C. Ellsworth, deceased.
Following action as above indicated plaintiff commenced this lawsuit by filing a petition which, it may be stated, recites in a general way that under the more important facts, conditions and circumstances, heretofore outlined, the defendant had never attained a life membership in the home by reason of her death prior to the expiration of the probationary membership period prescribed by the contract, hence the contract should be construed as contemplating her estate was entitled to a return of the money paid by her to defendant for such a membership. When a demurrer to this pleading, based on the ground it failed to state a cause of action, was overruled by the trial court defendant filed an answer alleging in substance that under the same facts, conditions and circumstances: the contract between it and the decedent is to be construed as warranting its retention of the sum paid by such decedent for the life-membership even though, prior to her death, such decedent neither indicated that she did not desire to remain in the home nor that she desired the privilege of leaving it. It should perhaps be added that such answer contains an allegation that on May 10, 1954, decedent was permitted to enter the home without having paid her life membership; admits subsequent payment of such membership in the manner heretofore indicated; and makes decedent’s application for admission to the home a part of such pleading.
With issues joined, as heretofore related, the cause came on for trial by the court. During the trial facts, as heretofore related, were established by evidence and at the conclusion thereof the trial court, after holding that the salient question in the case was purely a question of law involving the interpretation of the contract, rendered judgment decreeing that plaintiff was entitled to recover the amount paid by Bertha C. Ellsworth to the Home, less $235 paid by the Home for her funeral expenses and less the sum of $80 provided for in the contract in the event she had elected not to remain in the home. Thereupon defendant perfected this appeal wherein under proper specification of errors it charges the trial court erred in overruling the demurrer to the petition; in rendering judgment for plaintiff and against defendant, wholly contrary to the law and the terms of the agreement; and in overruling its motion for a new trial.
In a preliminary way it can be said a careful examination of the record leads to the inescapable conclusion the trial court was eminently correct in holding that the all decisive question involved in this case is purely a question of law involving the interpretation of the contract entered into between the appellant and Bertha C. Ellsworth, deceased. Indeed the parties make no serious contention to the contrary. For that reason, and others to be presently disclosed, we turn directly to appellant’s claim the trial court’s judgment was contrary to the terms of the agreement and to the law, mindful as we do so that where — as here — the terms of a contract are ambiguous, obscure or susceptible of more than one meaning there are certain well defined rules to which courts must adhere in construing its provisions. Four of such rules, which we believe have special application here, can be stated as follows:
■ 1. That doubtful language in a contract is construed most strongly against the party preparing the instrument or employing the words ■concerning which doubt arises. (See Kinmonth v. Holm,, 180 Kan. 389, 392, 304 P. 2d 494; Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807; Green v. Royal Neighbors of ■America, 146 Kan. 571, 73 P. 2d 1; 12 Am. Jur., Contracts, 795 § .252; 17 C. J. S., Contracts, 751 § 324; Hatcher’s Kansas Digest [Rev. ■Ed.], Contracts, § 44; West’s Kansas Digest, Contracts, § 155.)
2. That where a contract is susceptible of more than one construction its terms and provisions must, if possible, be construed in such manner as to give effect to the intention of the parties at the time of its execution. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.)
3. That in determining intention of the parties where ambiguity exists in a contract the test is not what the party preparing the instrument intended its doubtful or ambiguous words to mean but what a reasonable person, in the position of the other party to the agreement, would have understood them to mean under the existing conditions and circumstances. (Braly v. Commercial Casualty Ins. Co., supra.)
4. That the intent and purpose of a contract is not to be determined by considering one isolated sentence or provision thereof but by considering and construing the instrument in its entirety. (Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395; In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544; Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350.)
Stated, substantially in its own language, the principal contention advanced by appellant as grounds for reversal of the judgment is that the membership agreement between it and the involved decedent was fully executed inasmuch as decedent had been admitted to the Home as a life member on May 10, 1954, and thereafter caused her life membership to be paid; hence, since nothing further needed to be done by the parties to make the portion of the agreement relating to life membership binding, provisions of the contract with respect thereto had become fully executed and title to the fee paid for such membership had vested in appellant.
If we could limit our construction of the contract to its first two paragraphs, as heretofore quoted, we might well conclude that appellant’s views respecting the status of the agreement and the gift therein mentioned could be upheld. However, as has been previously demonstrated, our obligation is not to consider isolated provisions of the contract but to consider and construe such instrument in its entirety. When succeeding paragraphs of the agreement, and the incorporated by-laws, particularly portions thereof which we have heretofore underlined for purposes of emphasis, are reviewed in the light of the rule to which we have just referred, as well as others heretofore mentioned, we have little difficulty in concurring in the views expressed by the trial court in rendering its judgment that the contract had never become executed and that title to the gift paid by the decedent for a life membership had not vested in the Home. In fact, and without repeating the emphasized portions of the agreement on which we base our conclusion, we go further and hold that, under the clear import and meaning of such emphasized provisions, Bertha C. Ellsworth, because of her untimely death during the probationary and/or trial period expressly required by their terms, never attained a life membership status in the Home. Indeed to hold otherwise would not only do violence to the language of the contract but read into it something that is not there.
One question remains in this lawsuit. Who, the Home or the decedent’s estate, is entitled to the life membership fee paid by decedent to appellant? In this connection it is interesting to note that the money was paid by decedent by a check and receipted for by appellant in writing, each of which instruments contain a recital “In Payment of Life Membership for Bertha C. Ellsworth in the Methodist Home for the Aged, as specified in Agreement dated May 10, 1954.” So, since it cannot be denied the contract contains no express provisions relating to where the money was to go if Bertha Ellsworth died during the probationary and/or trial period prescribed by its terms, it appears we are faced with the obligation of determining what was intended by the parties at the time of the execution of the agreement in the event of such a contingency.
Strange as it may seem, the question thus presented has been before the Courts on but few occasions. However, it has been decided under similar circumstances. An interesting discussion on the subject appears in 10 A. L. R. 2d., Anno., pp. 874, 875 § 12. It reads:
“Many entrance contracts provide for a probationary period during which the applicant for admission to the charitable home as well as the home itself can dissolve the agreement without cause. In case the applicant is refused permanent admission at the end of the trial period or withdraws during the period of his own volition, all payments made, less a fixed weekly charge for the time he stayed at the home, are refunded to him and his property rights are restored.
“An interesting situation arises if the applicant dies during the probationary period without having been either accepted or rejected as a permanent inmate. The legal question then is whether or not the charitable home may retain the applicant’s property on the ground that the agreement had not been dissolved by either party.
“In a majority of cases this question has been answered iii the negative and it has been held that the home may not claim or retain the applicant’s property, on the ground that the death of the applicant has made it impossible to determine whether he would have become a. permanent inmate at the end of the probationary period.”
In connection with the foregoing quotation the author cites The Evangelical Lutheran St. S. Cong. v. Bishop, 213 Ill. App. 137; Christenson v. Board of Charities, 253 Ill. App. 380; Kirkpatrick Home For Childless Women v. Kenyon, 119 Misc. 349; 196 N. Y. S. 250, 196 N. Y. S. 475, 199 N. Y. S. 851, as supporting the conclusion reached by him in the concluding paragraph of his discussion and one case only, Dodge v. Home, 95 N. H. 472, 67 A. 2d. 10, as holding to the contrary. We may add our somewhat extended research of the books, including our own reports, discloses no other cases which can be regarded as decisive of the question presented under similar facts, conditions and circumstances.
Again reviewing the contract in the light of the heretofore stated rules, and mindful that appellant, not the decedent, prepared the involved contract, we are impelled to the view that a reasonable person, in the position of the decedent at the time of the execution of the contract, would have understood the provisions of that instrument to mean that unless and until she attained the status of a life member in the appellant’s home she, or her estate, would be entitled to a return of the money paid by her for that right, less amounts specified in the agreement. Moreover we are convinced, that having prepared the contract, appellant’s failure to make express provision therein for retaining the money paid by Bertha C. Ellsworth as a life membership fee, in the event of her death during the period of her probationary and/or trial membership status, precludes any construction of that agreement which would warrant its retention of such money upon the happening of that contingency.
After careful consideration of the decisions last above cited we have concluded those having the effect of holding, under similar circumstances, that the appellant cannot claim or retain Rertha Ellsworth’s lifetime payment for the reason her death made it impossible for her to determine whether she was to become a permanent inmate of the Home at the end of the probation period, are more sound in principle and better reasoned than the one case holding to the contrary. Therefore, based on the conclusions heretofore announced and on what is said and held in such decisions, we hold that the trial court did not err in rendering the judgment from which the Home has appealed.
Lest we be charged with overlooking it, we pause here to note, we regard Old Peoples Home v. Miltner, 149 Kan. 847, 89 P. 2d 874, relied on by each of the parties in support of respective claims regarding the propriety of the judgment, as clearly distinguishable and hence of no value as a precedent controlling issues involved in the case at bar.
Contentions advanced by appellant in connection with the overruling of its demurrer to appellee’s evidence and the overruling of its motion for a new trial are the same as those heretofore considered, discussed and determined. For that reason further discussion of the propriety of such rulings is neither necessary nor required.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This was an action by the owners of certain property against their lessees in a written lease to recover past-due rentals and possession of the property because of breach of the provisions of the lease. Judgment was rendered in favor of plaintiffs and defendants have appealed.
Allegations of the petition need not be detailed other than to state that they alleged violation by defendants of the provisions of the lease relating to payment of monthly rental, and the prayer was that plaintiffs have possession of the property and judgment for $1,100 allegedly owed to them. Copies of the written lease, a subsequent written agreement between the parties, and of a notice to vacate, were attached to the petition as exhibits. The answer denied that defendants were indebted to plaintiffs for past-due rent, and by their cross petition defendants sought recovery of an indebtedness allegedly owed by plaintiffs upon an open account for merchandise purchased by plaintiffs from defendants, and for an additional amount alleged to have resulted from failure of plaintiffs to carry out their agreement with respect to supplying fill dirt for a portion of the premises.
The case was tried by the court without a juiy, and it appears that on May 16, 1955, after both sides had rested, the court took the matter under advisement pending the filing of briefs.
On June 6, 1955, the matter being still under advisement, counsel for plaintiffs filed a motion requesting permission to reopen their case for the purpose of introducing into evidence a certain demand for payment of rent sent by registered mail to defendants, such evidence being deemed essential to the determination of the case then being under advisement. Counsel for defendants were served with a copy of this motion.
On June 9, 1955, it appears that the trial judge was in his office adjoining the courtroom and at that time counsel for plaintiffs requested permission to take up the motion. The judge directed counsel to call by telephone one of defendants’ attorneys, and the record shows that this was done in the presence of the judge and court reporter. It further appears (although the fact is disputed) that defendants’ counsel replied that he could not be present but that he had no objection to the matter being presented.
Accordingly, plaintiffs were permitted to reopen their case and introduced a copy of a letter sent by registered mail to defendants prior to the commencement of the action, in which demand for possession of the premises was made because of default in payment of monthly rental. The return receipt, signed by defendant W. R. Crossland, also was introduced.
On November 4, 1955, the court rendered judgment in favor of plaintiffs for possession of the premises and for $427.39, this figure being the difference between $1,100, found to be due plaintiffs, and $672.61, found to be due from plaintiffs to defendants.
No useful purpose would be served by setting forth the evidence upon which the court based the money judgment. It has been examined and considered, and we have no hesitancy whatever in holding that the trial courts conclusion in the matter is supported by the record and is correct.
The chief complaint made by defendants in this appeal is that the court erred in permitting plaintiffs to reopen their case and introduce evidence of the written demand to defendants for possession of the premises, in the absence of counsel for defendants.
In this connection it is to be borne in mind that on June 9, 1955, judgment had not yet been rendered, although on May 16th the court had taken the case under advisement pending the filing of briefs. Under such circumstances, it was entirely within the discretion of the court to permit either or both of the parties to reopen the case for the introduction of additional evidence. (Angola State Bank v. Fry, 130 Kan. 641, 287 Pac. 245; Erskine v. Dykes, 158 Kan. 788, 791, 150 P. 2d 322, and Hatcher’s Kansas Digest, Revised Edition, Trial, § 25.) Concededly, counsel for defendants were entitled to be notified concerning when the motion to reopen would be heard. The record contains an affidavit by counsel for each side respecting this matter of notice, or lack of such, the gist of defendants’ counsel’s contention being that he received no notice and had no recollection of being called by telephone concerning the same. Under the circumstances, it would seem that our only course is to uphold the action of the trial court in finding that defendants’ counsel orally waived any objection to plaintiffs reopening their case, and to conclude that counsel for defendants simply is honestly mistaken in his recollection of what transpired.
A further contention is made that the trial court erred in hearing the motion and permitting the introduction of the further evidence in “chambers” i-ather than in “open court.” Under the circum stances, there is no necessity to go into the subject of the powers of a court or judge in chambers, for clearly it was not error for the trial judge to hear the matter in question in his office adjoining the courtroom, and defendants’ contention in this regard is without merit.
As heretofore stated, the money judgment in favor of plaintiffs is supported by the evidence, and with respect to the matter of the demand for possession of the premises being made upon defendants prior to the commencement of the action there is no question but that such demand was made, and, defendants being in default, plaintiffs, under the provisions of the lease, were entitled to possession. It does not appear that defendants were in any way prejudiced in the trial of this case, and, no error being made to appear, the judgment must be and is therefore affirmed.
It should be stated that defendants filed two notices of appeal in this case, each being given a separate case number by our clerk. As presented, however, they were consolidated and our decision covers both eases.
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The opinion of the court was delivered by
Burch, J.:
The proceeding is one induced by an order of the court of industrial relations, denying an application to require switchboard connection between independent telephone systems.
The Cooperative company has an exchange at Clay Center, with an installation of 117 business phones, 262 residence phones, and 275 rural phones. It has recently purchased an exchange at Idana, a small city in Clay county west of Clay Center, and has a connection with that exchange. The United company has numerous exchanges and toll lines in Kansas, and toll-line connections with the lines of other companies serving Kansas and other states. It has an exchange at Clay Center, and has a toll-line connection with the Idana exchange, operated under contract. The Bell company has an extensive telephone system, with a toll line from Kansas City, Mo., through Topeka, Kan., to Clay Center. It owns a portion of the stock of the United company, and by agreement has its toll line connected with the switchboard of the United' company at Clay Center.
The Cooperative company presented an application to the court of industrial relations for an order requiring switchboard connection at Clay Center between its lines and the lines of the United and the Bell companies. The ground of the application was that the public service and convenience of the patrons of the Cooperative company would be promoted, and the court of industrial relations was asked to fix liability for cost of the connections, and to fix compensation for the transmission of messages arising with and delivered through the several exchanges. The United company and the Bell company responded with a denial of jurisdiction in the court of industrial relations to make the orders applied for. They further averred that the relief sought would deprive them of property without due process of law, and would deprive them of the equal protection of the law, contrary to provisions of the constitution of the United States. Reserving these questions, the respondents then stated facts to show that from economic, operative, and other standpoints, the orders prayed for should not be granted. The action of the court of industrial relations was expressed in the following order:
“Now on this first day of April, 1920, the above entitled matter comes on for order by the court upon the complaint filed herein on the fifth day of November, 1919, and the evidence introduced in support of said complaint on the 19th day of February, 1920; and the court, being fully advised in the premises, finds that under the evidence and circumstances of this case it would be unreasonable for the court to order a connection be tween the lines of the complainant and the respondents, in the city of Clay Center, prayed for herein.
“It is Therefore by the Court Ordered : That the complaint of The Clay Comity Cooperative Telephone Association, complainant, v. The. Southwestern Bell Telephone Company and The United Telephone Company, respondents, he, and the same is, hereby dismissed.”
• The petition to this court prays that the court of industrial relations be required to enter a just, reasonable and lawful order in the premises, and so takes the form of a petition in mandamus, under section 12 of the act creating the court of industrial relations, which reads as follows:
“In case either party to said controversy should feel aggrieved at any order made and entered by said court of industrial relations, such party is hereby authorized and empowered within ten days after service of such order upon it to bring proper proceedings in the supreme court of the state of Kansas to compel said court of industrial relations to make and enter a just, reasonable and lawful order in the premises.” (Laws Special Session 1920, ch. 29, § 12.)
Accepting this theory of the petition, the court is without jurisdiction. The statute creating the court of industrial relations bears on its face marks of the craftsmanship which framed it. Leaving out of account section 2, the statute is a complete act, covering an entirely new field of legislation, which for convenience may be called the field of industrial relations, cognizance of which is committed to a tribunal having an authority unique in American jurisprudence, exercisable according to an outlined procedure. Action of the new court in that field is reviewable according to the method prescribed in section 12. Thus considered, the statute has nothing to do with general regulation of public utilities, which was committed to the public utilities commission by the public utilities act (Laws 1911, ch. 238, Gen. Stat. 1915, ch. 97), and supplementary and amendatory acts. Had the new statute been enacted in this form, there would have been two tribunals, each having jurisdiction over a distinct and separate field. Section 2, and a tying-in sentence in section 4, were simply injected into this scheme of legislation. The result is, that while the public utilities commission was abolished, its jurisdiction was committed, in whole and intact, together with appropriate methods of procedure and review, to the court of industrial relations. While the court of industrial relations, under the molding power conferred by both the public utilities act and the new law, will doubtless have but one procedure for itself, orders made in the public utilities field are to be reviewed as before, according to the method prescribed by the public utilities act, and orders made in the field of industrial relations are to be reviewed according to the method specifically prescribed by the new law.
That the foregoing interpretation is necessarily true in respect to the remedy provided in section 12 of the act of 1920, is proved by its phraseology. The language is “said controversy.” The word “controversy” first appears in section 7, and there and elsewhere throughout the act means a controversy in the field of industrial relations. Section 13 is merely a special statute of limitation. Section 25, providing that the rights given and remedies afforded are cumulative, and providing that the act does not repeal other laws, is interpretative only, and does not contain creative legislation. Section 26 merely confers such incidental powers as may be necessary to make express grants effective.
In this instance the controversy has nothing to do with industrial relations falling within the scope of the body of the act of 1920. It falls within the scope of public utilities regulation according to the public utilities act, which is fully preserved, and the plaintiff should have followed the procedure there prescribed (Gen. Stat. 1915, § 8348).
The plaintiff filed an ordinary notice of appeal with the clerk of the court of industrial relations, and claims this court acquired jurisdiction of the cause by virtue of the notice, under the provisions of the code of civil procedure. From what has just been said it is obvious the notice was nugatory. The court of industrial relations, on its public utilities side, is just what the public utilities commission was.
' The plaintiff argues that it is entitled to relief by writ of mandamus granted by this court, independently of the action of the court of industrial relations. The purpose of the writ of mandamus is to compel performance of a clear legal duty. It is said the defendants rest under the clear legal duty not to discriminate against the plaintiff by excluding its telephone system from physical connection with their telephone systems, because of certain provisions of the public utilities act. Without expressing an opinion on the subject, it will be assumed, for the purpose of a decision, that this claim is correct. Nevertheless, an original action of mandamus is not the proper remedy.
The writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of law (Gen. Stat. 1915, § 7647). This statute is merely declaratory of the common law. The plaintiff has a plain and adequate remedy by application to the court of industrial relations, as the legal successor to the public utilities commission. It is said, however, that such remedy is out of the ordinary course of law, and the case of Larabee v. Railway Co., 74 Kan. 808, 88 Pac. 72, is cited. That case was decided many years ago, when public utilities regulation in this state was confined to railroads. A tribunal with the jurisdiction and powers- of the court of industrial relations was beyond- the range of legislative vision, and all remedies were regarded as unusual and out of the ordinary course which did not follow closely the ancient paths of law and equity. The case was one to compel resumption of a definite service under established conditions — switching cars from a mill — which had simply been discontinued. The court had nothing to do but to command restoration of the service. The case fell naturally within the ordinary jurisdiction of the courts in mandamus, and the court took jurisdiction at once. It is now clearly perceived that what is most needed in the field of business intercourse is expert administrative adjustment, and not court adjudication. Advancing step by step according to that principle, the legislature superseded the board of railroad commissioners with the public utilities commission, gave it authority to regulate public utilities generally, and then superseded the public utilities commission with the court of industrial relations, and gave it greatly amplified powers. The policy has become the settled policy of the state. It contemplates that any controversy which naturally falls within the scope of the jurisdiction of the court of industrial relations shall be adjusted there, subject to such review by the courts as the statute provides, and the mandamus statute must be interpreted accordingly. The present controversy is peculiarly one of the kind just referred to. The proposition is to compel partial amalgamation of independent, competing telephone systems. The court might order forma tion of the relation, if that were all, but the writ of mandamus, if issued, must prescribe the terms of the relation. Those terms involve switchboard changes, installation of connections, apportionment of cost, regulation of operation, service, rates, division of tolls, accounting, and other matters with which none but a body like the court of industrial relations is competent to deal. At the oral argument it was suggested by counsel for plaintiff that, after ordering the connection, the court should send the case to the court of industrial relations for adjustment of those details — a confession that mandamus is not a fit remedy, and that the court of industrial relations is the proper place to go for relief. Therefore, the court holds the plaintiff had a remedy in what the legislature has established as the ordinary course of law for such cases.
The plaintiff claims that, aside from the public utilities act, the rights which it recognizes and the remedies which it affords for the protection of such rights, the plaintiff has a clear legal right, and the defendants rest under a correlative legal duty, respecting the subject in controversy, under the common law. The court is of a different opinion.
There is no dispute that telephone companies are analogous to common carriers with respect to communication of intelligence, and are obliged to serve without discrimination all applicants for service within the field occupied. Likewise, there is no dispute that in the absence of statute, no telephone company is obliged to make an initial switchboard connection with any other. The question, however, is whether or not the United company, which has voluntarily contracted service connection with the Bell company, is compelled to permit general switchboard connection with any other telephone, company which applies; and whether or not the Bell company, which has voluntarily contracted service connection with the United company, is compelled to establish the same relations with any other company which applies.
In the case of State, ex rel., v. Cadwallader, 172 Ind. 619, the supreme court of Indiana had before it for decision the question whether ■ or not the owner of a telephone system, physically connected with another system under a working agreement, could discontinue service by means of the connection. It appeared that the owner admitted to his switchboard lines from other exchanges. From that fact the court deduced certain conclusions, which, however, were not made the basis for decision of the question. The court said:
“Such physical connection cannot be acquired as of right, but if such connection is voluntarily made by contract, as is here alleged to be the case, so that the public acquired an interest in its continuance, the act of the parties in making such connection is equivalent to a declaration of a purpose to waive the primary right of independence, and it imposes upon the property such a public status that it may not be disregarded. (Maham v. Michigan Tel. Co. [1903], 132 Mich. 242, 93 N. W. 629.) . . . Appellee is furnishing to other exchanges in West Lebanon direct connection and communication with their patrons to other exchanges, and the same service requested by relator. Appellee has thus fixed a classification of those similarly situated and affected. (Delaware, etc., Tel. Co. v. State, ex rel. [1892], 50 Fed. 677, 2 C. A. 1.) The act of admitting the connection alleged, is equivalent to a declaration that all will be admitted to the connection, on the terms and conditions imposed as to one or more.” (pp. 636, 641.)
This pronouncement has been restated as law by some text-writers, has been favored by some case annotators, and has been approved by some courts in disposing of controversies which did not require decision of the question. The ruling has been condemned by some courts in disposing of controversies which did not require decision of the question, and a contrary view has been indicated by other courts under like circumstances.
The first observation to be made respecting the declaration of the Cadwallader case is that it was dictum. The rights of third persons who were not parties to the working agreement and who were not seeking independent admission to the owner’s switchboard, were not involved. (Pacific Telephone & Telegraph Co. v. Anderson, 196 Fed. 699.) Besides this, the court said:
“We have given the cause this much attention because of its public interest and character, but the judgment must be affirmed upon other grounds.” (p. 642.)
In the next place, the authorities cited to sustain the doctrine announced require consideration. In the Michigan case cited, one telephone company bought the franchises and exchange of another, connected the two systems, and for a time gave service to the subscribers to both. It then undertook to discontinue service by means of the purchased system. A subscriber having a term contract enforced his right. In the Federal cases cited, the Postal Telegraph Company wanted a telephone in its office. The Western Union Telegraph Company, like other subscribers, had a telephone, and the equal right of the Postal company to an office telephone was enforced by mandamus. Further on in the opinion in the Cadwallader case, several decisions are cited in support of the proposition that all who are similarly situated must be served alike, but each decision is identical in principle with the one rendered in the Postal Telegraph Company’s case. With great respect for the Indiana supreme court, it is submitted that none of the cases cited sustains its declaration of principles. They all deal with the rights of individual persons or corporations to residence or business telephones, and not with the rights of one telephone company to use the telephone system of another. The result is, the declaration is not authoritative evidence of the common law.
The declaration contained in the Cadwallader case was expressly disapproved in the case of Telephone Co. v. Telephone & Telegraph Co., 125 Tenn. 270. In the opinion it was said:
“The case just referred to correctly holds, as we understand the law, that each telephone company under the common law is independent of all other telephone companies, save for the duty to receive and forward to any point on its line messages received from such other company or companies, and hence that it is not bound to accord to any such outside organization or its patrons connection with its switchboard on an equality with its own patrons; that such connection is a privilege to be accorded only as the result of contract, or in obedience to a statute. We concur in the reasoning that an opposite rule would soon result in the practical confiscation of the larger plants having long-distance lines, since the motive would be insistent and irresistible in small companies organized for the purpose, or depleted and run down companies, to demand such connection; the maintenance of the long lines being without expense to them. But we are unable to agree with the supreme court of Indiana that, if a contract for such connection be once made without the specification of any time for it to run, this connection cannot thereafter be severed without the j'oint concurrence of the companies so in combination; nor are we able to see how the exercise of the right of contract to effect such a j'oint traffic arrangement between two companies can confer any right upon other companies, not parties to the contract, to a participation in its benefits. Such a rule, while in terms asserting, the independent right of contract, denies its existence in fact.” (p. 283.)
In the case of Telephone Co. v. Telephone Co., 147 Mo. App. 216, the court followed the decision in the Cadwallader case. The presiding judge filed a dissenting opinion, in which he made the discriminations indicated by the following quotations :
“Fairness and equality to all, favors or special privileges in the conduct of the business as a public business to none, is the life of the law. This is very far from letting another in the same line of business into a participation in that business, even if the owner, by his voluntary act, has chosen to let in some other. It is the public who is under the protection of the law and the courts. Neither are concerned in promoting the interests of one corporation as against another. . . .
“The trouble with the opinion of my learned brother, in my judgment, is, that two ideas are confused: One, the right of all the public to enjoy equal privileges with every one else of the public in the use of telephone service over defendant’s line; the other, the right of the defendant, notwithstanding its contract with plaintiff, to allow another company, engaged in the same business, the same rights granted plaintiff; in short, the right to become a part of its system.” (pp. 248, 249.)
The supreme court of the state of Missouri, in an identical case, overruled the court of appeals, and held that the dissenting opinion stated the law (Home Telephone Co. v. Sarcoxie Telephone Co., 236 Mo. 114). The substance of the decision may be indicated as follows: In the absence of statute or contract, the relation of telephone company A to telephone company B in respect to service is simply that of an individual of the general public. Telephone company B may extend its field of operations by making a contract with telephone company C whereby their systems are connected. This having been done, the relation of telephone company A to the connected systems is that of an individual of the general public. The public service has been extended, but the private right of the individual has not been enlarged, and company A has no more right to appropriate the joint facilities of companies B and C to the extension of its own system than it had to connect with company B-s system before the contract was made. After citing the statute of the state of Missouri regarding sufficient facilities for the dispatch of public business, and prompt and impartial service on demand or tender of usual charges, the court said:
“This section does not require physical connection between telephone lines. It does require such company to receive all messages from other telephone or telegraph lines and transmit them, as it likewise requires it to receive all messages from individuals. This does not mean that such corporation must yield to a physical connection with its lines by a competitive - company and permit the use thereof in that way. In such case and under this statute the telephone corporation or the telegraph corporation has no greater right than the individual. If the individual goes to the office of the telephone company and tenders payment for a message, the company must accommodate him. So, too, if a telegraph company or other telephone company goes in the capacity of an individual or corporate entity and demands a similar service, it must be rendered. But this does not mean that the telephone company must put up a switchboard for all such individuals or corporations desiring to do business with the telephone company. ...
“The theory of the case at bar is that under the law the Sarcoxie company was compelled to grant physical connection to the Bell company, because it had arranged for such connection with a competitor of the Bell company. Under the railway cases cited, supra, this contention is not well founded.” (pp. 133, 138.)
In the case of Pacific Telephone & Telegraph Co. v. Anderson, 196 Fed. 699, Rudkin, district judge, after referring to the Cadwallader case, said :
“When a public service corporation enters into private contracts with others in furtherance of its business, I find no warrant for holding that its public duties are in all cases extended to the full scope of the private contract.
“It is a common practice among railroads to permit other companies to operate trains over their lines on terms agreed upon between them; but it has never been held or intimated that by such an act a company loses all control over its property or obligates itself to grant similar privileges to every other company that may apply therefor. Any such rule would wrest from the proper officers of the corporation the power to manage and control its affairs, and would be destructive of private property rights.
“The defendant companies had therefore no right to demand a physical connection with the Anderson line simply because that right had been accorded to another, and they certainly have no such rights under the statute of this state, for that statute vests the power and discretion to direct physical connection in the public service commission.” (pp. 703, 705.)
In the case of Union T. & S. Bank v. Telephone Co., 258 Ill. 202, the- court had under consideration a contract for exclusive telephone connection. In the opinion it was said:
“Without the contract the telephone company would be at liberty to contract with both the Kinloeh and Bell systems for long-distance connections. . . . Such service, however desirable, is now impossible. It will continue to be impossible unless contracts can be made with both long-distance companies. These contracts cannot be compelled, but none of the corporations can by any contract deprive themselves of the power to make them. It may be that the telephone company cannot be compelled to give long-distance service or to connect its exchange with any other system, or, having connected with one system, to permit a connection with another. It may decline to undertake any service which cannot be begun and completed over its own lines. If it does undertake such service, it may. select its own lines and it may confine itself to one agent, but it may not bind itself to do so and contract away its right and power to use more than one agency.” (p. 209.)
This case is erroneously cited in Jones on Telegraph and Telephone Companies (2d ed.), page 364, note 113, as sustaining the particular doctrine of the Cadwallader case under discussion.
In the case of The People v. Telegraph Co., 166 Ill. 15, the syllabus reads:
“The fact that a telegraph company has an arrangement with one telephone company whereby verbal messages are transmitted and received over the telephone line, does not operate as a waiver of its right to refuse verbal messages over the line of another teléphone company.”
In the opinion it was said:
“The only serious question is whether the fact that the defendant has waived its right in that respect as to the other telephone company requires a like waiver on its part as to the-relator, and we do not think that it does. It may be willing to assume risks with another telephone company of whose responsibility it may be satisfied, which it would not be willing to assume with the relator, for proper and sufficient reasons. Such arrangements are founded entirely upon the agreements of parties, and defendant is not bound to admit every other corporation into a like arrangement. This has been the rule as to carriers.” (p. 21.)
These cases are sufficient to show substantial grounds of opposition to the views expressed in the Cadwallader case. It may be conceded they are not, in strictness, authoritative upon the precise question "under consideration, but they are quite • as much so as the decision in the Cadwallader case, to the force of which nothing has been contributed by any of the courts which have approved it.
Some of the courts which favor the doctrine of the Cadwallader case deny the analogy between physical connection of telephone systems and physical connection of railroad systems, in order to defeat the argument against connection founded on the railroad cases so frequently referred to. It is said that railroad connection involves much more complicated relations, the things transported are essentially different — electric undulations in one case, and physical objects in the other — and in the case of telephone systems the communicants at each end of the telephone wire do the transmitting. In the case of United States Tel. Co. v. Central Union Tel. Co., 171 Fed. 130, it was said:
“When it is said that a long-distance telephone company has no right to compel a connection with a local telephone exchange belonging to another company (which, of course, must be done, if at all, on reasonable and fair terms to the local company), for the- same reason that one railroad company cannot be permitted to run its engines and cars loaded with its freight on the lines of another railroad company, no account is taken of the fact that the law as applied to railroad companies is a law arising out of convenience and necessity; for it would be physically impossible and unsafe for one railroad company to be permitted to run its cars and engines, except with the consent of the other company, over another company’s lines. This is an obvious fact.” (p. 143.)
If joint operation be in fact physically possible and safe and for the public benefit, it does not make much difference how the arrangement comes into existence. The Rock Island Railroad Company has no track between Topeka, Kan., and Kansas City, Mo. It operates trains over the tracks of the Union Pacific Railroad Company, under a contract, just as the United company forwards its messages from Clay Center, Kan., to Kansas City, Mo., over the line of the Bell company, under contract. If the officials of the two railroads were able to make a contract which renders this operation of trains possible and safe, it is conceivable a court or industrial commission, with the aid of experts, might frame an order in the terms of the contract. In the case of telephone companies, as in the case of railroad companies, there are physical connection and use of physical property, maintenance of structures and way, operation, and accounting; and equality of right may not be denied on the ground of mere inconvenience arising from bigness and complexity of the business. The rural subscriber at his telephone on a fence post and iron-wire line, talking to his mail-order house over long-distance, obstructs traffic as one freight train obstructs passage of another. Under the proposed theory, as fast as new telephone companies multiply and demand admission, the United company must add to its switchboard, and the Bell company must enlarge and improve its facilities. The Union Pacific company can do the same thing. Every element on which right depends is as fully present in one kind' of case as in the other; and if, as a matter of law, a telephone company, by admitting another to its switchboard under contract, dedicates that switchboard to general use by all who may apply, there is good reason to say the Union Pacific — simply another public utility for purposes of communication — dedicated its track to general use by its contract with the Rock Island company. On the other hand, if it be the law that the Union Pacific company waived nothing but its right to exclude the Rock Island company from use of its tracks and other facilities, the same rule should govern the relation of the parties to this suit.
It will be observed the court has not quoted from the decisions in the railroad cases, and the subject may be considered on principle, independently of those decisions.
Telephone companies which engage in the business of furnishing telephones or facilities for telephone communication, must serve the general public, within the field occupied, without discrimination. Individuals, whether persons or corporations, who desire telephones in their residences or places of business, or who desire to use telephone facilities, are members of the general public in that .respect, and on the same footing.
Let it be assumed, for the purpose of analysis, that the United company established an exchange at Clay Center. Any one who desires a telephone is entitled to have one. Let it be assumed that the Cooperative company then established an exchange in Clay Center. Any one who desires a telephone of this company is entitled to have one; and each company is entitled to a telephone of the other, should it so desire. That service satisfies the public duty of. each company. ' Patrons of the United company have no right, as individuals or in the name of the public interest, to demand that the United company furnish them with means of communication with patrons of the Cooperative group who do not patronize the United company. Patrons of the Cooperative company are in the same situation. Without a statute, facilities for communication between the two groups of patrons cannot be compelled.
Let it be. assumed that neither company has toll-line com munication with Kansas City, Mo. Patrons of neither company can demand, as individuals or in the name of the public interest, that facilities for such communication be supplied. Afterwards the United company builds a toll line to Kansas City. Patrons of the. Cooperative company have no right to that service, except as they take a United company telephone or go to one of its booths, and have no right to demand that the Cooperative company build a line to Kansas City. Local relations between the two groups of patrons remain as they were before the toll line was constructed.
Instead of building a toll line to Kansas City, the United company buys one already built by the Bell company. The situation is the same as if the United company had built it. Instead of buying the line, the United company enters into a contract with the Bell company whereby both companies use it, and divide tolls on a satisfactory basis. The relation of the group of the public served by the Cooperative company to the United company and its toll-line connection is the same as if the United company owned the toll line. Patrons of the Cooperative company can subscribe for a United company telephone, or go to its booths. Members of the public in Topeka and Kansas City who desire to communicate with Clay Center, have a toll line to that place, and have at their disposal a local exchange serving the public — the exchange of the United company.
The Cooperative company extends lines into the country, and establishes a system of rural telephones. The rural patrons of the Cooperative company stand on the same footing as the city patrons of that company, so far as right of access to the United company’s facilities is concerned. Besides that, those patrons have no right to call on the United company for a class-of service which it does not profess to give. It has dedicated its capital and facilities to no service beyond the Clay Center city exchange and the toll-line connection with Kansas City.
The Cooperative company buys the Idana exchange, and connects it with the Clay Center exchange. The relation of patrons of the Idana exchange to the United company’s exchange and toll line is precisely the same as that of the Cooperative company’s rural patrons.
The United company extends its line northward to connect with exchanges at Morganville, Clyde, and Concordia. Nobody can complain because it did not choose to make southerly connections with Broughton, Wakefield, and Junction City.
These illustrations are sufficient to develop the subject. The result is that by building or buying a line to Kansas City, or by contracting for a line to Kansas City, the United company has made no classification of telephone users, and has discriminated against no group of telephone users whatever; and no telephone user, or group of telephone users, has any lawful ground for complaint. The patrons of one telephone system must go to the legislature to obtain authority to compel another telephone system to serve them.
The Bell company might have stopped its toll line at Topeka. If it had done so, Clay Center could not have complained of unjust classification or discrimination. No community beyond Clay Center can complain because the toll line stopped there. At Clay Center the Bell company furnishes toll service to Kansas City to all telephone users who may apply, and by virtue of its connection with the United company, furnishes exchange service to all telephone users who may apply. It has made no classification of telephone users, and has not discriminated against any telephone users.
So much for those individuals and groups of individuals for whose benefit' telephone service is instituted and maintained. What about the relations of telephone companies organized to institute and maintain such service among themselves?
No amount of refinement on the nature of telephone communication and telephone service can disguise the fact that what the plaintiff seeks, and what any third company seeks, is use of the property, organization, and fruits of enterprise of the parties to the contract. The court is perfectly willing to say that by their contract the United company and the Bell company waived the independence they possessed before the contract was made. They cannot refuse to each other the service secured by the contract. The court is not able, however, to add to the extent of the waiver disclosed by the contract. To do so is to go beyond the intention of the parties and the factual results of the contract. To declare that the contract operates as a general waiver for the benefit of com panies not parties to it is not to declare a fact, or inference of fact, at all. It is to attach a legal consequence. This legal consequence is not attached by way of applying well-understood principles of law to a novel state of facts. The state of facts is of a common kind, and the legal consequence is attached by application of a new rule of law of tremendous importance, special in its nature, and made out of whole cloth, which is legislation, and not adjudication.
There is no rule or presumption of common law that any third company ought to participate in the joinder of two others. No doubt there are telephone lines and exchanges which ought to be united. No doubt there are instances in which exchanges are formed for the sole purpose of pirating upon other systems. Each case of proposed physical connection must be considered on its merits, and the subject of compelling involuntary physical connection between different telephone systems cannot be dealt with except by some agency acting under special legislative authority.
The decision is, the plaintiff has no remedy by virtue of section 12 of the act of 1920, no remedy by appeal according to the code of civil procedure, and whatever right it may have by virtue of the public utilities act should be vindicated by invoking the remedies there provided. The plaintiff has no common-law right on which to predicate the proceeding. Therefore, the appeal is dismissed, and the writ of mandamus is denied.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from a judgment directing the specific performance of a contract wherein John A. Boylan agreed to convey to J. W. Wilson a farm of 160 acres in Cowley county.
In her lifetime the legal title was in Martha A. Scott. She died intestate August 7, 1910, and one-half of the property descended to her eight children and one-half to their father, Robert B. Scott. Robert B. Scott owned another farm of 160 acres, and upon his death in 1911 the full title to both farms vested in the eight children. The heirs were of full age, and all except Nancy C. Boylan were nonresidents, some living in Oklahoma and others in Missouri. John A. Boylan, husband of Nancy C. Boylan, had been acting as the agent of all the he'rs, looking’ after both farms; collecting the rents and paying the taxes. Some years before he had, on behalf of the heirs, sold the farm they had inherited from their father, and for several years had had an arrangement with them to sell' the farm in controversy at a fixed price. -He was also the administrator of the estate of Robert B. Scott. In July, 1917, he entered into a written contract to sell the farm to one of the plaintiffs, J. W. Wilson, for $11,500, the price the heirs had agreed upon, and the contract was deposited in a bank, together with Wilson’s check for $1,000; the balance to be paid when the title papers were perfected. Boylan prepared a deed for the heirs to sign, reciting the consideration and designating the grantors as the only heirs at law of Martha A. Scott, deceased, and Robert B. Scott, deceased. The deed, was sent around among the heirs, and all except Alec Scott signed and acknowledged it for the purpose of carrying out the contract. Alec Scott and his wife refused to sign, not because of any dissatisfaction with the terms of the sale but because Alec claimed that in the sale of the father’s farm the other heirs had defrauded him out of $500 of his share. J. W. Wilson, in the meantime, had arranged to sell the property to the other plaintiffs, Arnett and Foster, for the same price at which he was to purchase it. The heirs who had signed the deed, together with Wilson and Arnett, consulted an attorney, who advised them that there were three things they might do: first, the plaintiffs could take the deed executed by seven of the eight heirs; second, a suit in partition could be brought (which Wilson and Arnett claim they understood would force the sale of the one-eighth interest belonging to Alec Scott), and third, the plaintiffs could abandon the contract. Boylan wanted to see the contract carried out and induced some of the heirs to bring suit for partition, and suit was filed.
The sale in partition occurred in April, 1918. Boylan did not guarantee that Wilson would get the farm at the agreed price, but Boylan wrote him shortly before the sale that the only thing left for them to do was “to go up and bid it in if we can and hope no one will run it up higher than the price we had set.” Wilson and Arnett attended the sale and bid the amount they had agreed to pay Boylan. W. S. Scott and Ross Scott bid $12,000 and the property was struck off to them, and afterwards the sale was duly confirmed. On October 24, 1918, the check Wilson had left in the bank with the contract was taken down by him. The contract itself was left in the bank. Afterwards on July 27, 1919, another check for $1,000 was placed in the bank payable to John A. Boylan. This was after the plaintiffs determined to begin suit for specific performance.
Two propositions are insisted upon. First, that there was no written contract between plaintiffs and the defendant heirs, and especially none between plaintiffs and W. S. Scott and Ross Scott, who now hold the title by virtue of their purchase at the partition sale. There was a written contract, however, between Boylan and Wilson, which is the contract the court ordered performance of. It is urged that Boylan only purported in the contract to act for the defendants, but that, in fact, he had no authority to act in their behalf or, at least, that there was no way to prove that authority. That he did act in their behalf and under their authority are facts determined by the court, and there was abundant evidence to sustain the finding. It is of no consequence at all that in signing his name to the contract with Wilson, Boylan added the letters “Admr.” It is conceded that as administrator he had no authority to make such a contract; in fact, he never claimed to possess such authority. He claimed to represent the defendant heirs under some arrangement with them, and Wilson so understood. If, in fact, he did have authority, though not in writing, to represent the defendant heirs,- a court of equity would have the power, in a proper case, to compel the defendants to perform the contract, providing, of course, there was some memorandum in writing signed by the defendants which is sufficient to take the- case out of the statute of frauds.
The chief contention of the defendants is that there was no such memorandum. They say that the warranty deed signed by them was never delivered, and therefore is not a sufficient memorandum. The appeal is prosecuted particularly in the interest of W. S. Scott and Ross Scott, who claim title under the partition sale. They testified, in substance, that they understood John Boylan had contracted to sell the land to Wilson for the amount expressed in the deed, which was agreeable to them; that they signed the deed to carry out the agreement, whatever it was; they remembered about the sale of the other place negotiated by Boylan in the same way. Boylan was named as a defendant because of his wife’s interest. He testified that he was the agent of the owners to sell the place; that he sold it, and that all of them, including Alec, were satisfied with the price and terms.
There can be no question that the deed was executed for the purpose of carrying out the contract made by Boylan with Wilson. Although not finally delivered, it was evidence of a ratification and confirmation by those who signed it of the contract Boylan had made as their agent. (Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500.) Two of the heirs who had thus ratified the contract to convey obtained the whole title by virtue of the partition sale, and it is clear that a court of equity has the power to compel them to perform their contract and to convey the title subsequently acquired. Nor is delivery of the deed essential in order to establish the oral contract. If the deed has been executed it may, and often will, constitute a sufficient memorandum of the oral contract. The writing required by the statute is merely evidence of the contract and is not the contract itself.
“The •writing does not become the contract, but simply the evidence thereof; and whether it remains in the hands of the one party or the other, if it is properly identified as the full expression of the contract, upon which the minds of the two parties met, it fulfils the purpose of the statute and renders the contract agreed upon enforceable.” (Ames v. Ames, 46 Ind. App. 597, 604.)
In Schneider v. Anderson, 75 Kan. 11, 88 Pac. 525, it was held that—
“A writing . . . and an undelivered deed, executed by the grantor at the same time and as part of the same transaction, which is deposited by the parties in escrow, constitute a sufficient memorandum of a contract for the sale of lands to satisfy the statute of frauds.” (Syl. ¶ 1.)
In the opinion it was said:
“The courts are at variance upon the question whether a deed alone, when executed by the vendor and deposited in escrow, to be delivered by the depositary to the grantee upon his paying the purchase price or performing some other condition, is itself a sufficient memorandum to avoid the statute of frauds. (The cases are cited in 29 A. & E. Encycl. of L. 855.) A majority say that the deed alone is not a sufficient memorandum. But the better reasoning seems to be the other way. The ground usually stated for holding that the deed is not a sufficient memorandum is that, until it is finally delivered or the condition is performed, it does not constitute a contract. The reason given seems to be beside the question, which, in this character of cases, is not, Was there a written contract? but is, Is there a sufficient memorandum signed by the party which is evidence that a contract existed or which tends to prove that fact? The evil the statute seeks to guard against is the use of oral evidence to prove a contract. This is obviated by the production of the deed which is a memorandum of a contract . . .
“By far the best reasoned case we have examined is Jenkins v. Harrison, 66 Ala. 345, followed in Johnston v. Jones, 85 Ala. 286, 4 South. 748. It is said in the former case: ‘A deed, drawn and executed with the knowledge' of both parties, with a view to the consummation of the contract of sale, which, in itself and of itself, embodies the substance, though not all the details or particulars of the contract, naming the parties, expressing the consideration, and describing the lands, though not delivered, and its delivery postponed until the happening of a future event, is a note or a memorandum of the contract sufficient to satisfy the words, the spirit, and the purposes of the statute of frauds.’ ” (pp. 16, 17. See note to same case, 121 Am. St. Rep. 356, 362, and note, 132 Am. St. Rep. 811, 813.)
The defendants insist that the case of Schneider v. Anderson, supra, goes no further than to hold that a deed may be a sufficient memorandum, but they insist that the contract sought to be enforced must be the same as the one shown in the deed, and they say that the contract between Boylan. and Wilson provided for the payment of $1,000 in cash and $10,500 on the 1st day of October, 1917, while the deed provided for payment of $11,500 in cash, and that there is a material variance between the contract and the deed. We think there was no variance. Both the contract and the deed contemplated a cash transaction. Obviously, the parties understood that the entire consideration was to be paid upon delivery of the deed. Several things remained to be done, the execution of the deed by all the parties, the furnishing of an abstract and its approval. The $1,000 deposited with the contract and the $10,-500, which was to be paid when the transaction was closed, would constitute a cash payment of the entire consideration.
In Anderson v. Anderson, 75 Kan. 117, 88 Pac. 748, the written contract relied upon consisted of letters signed by the parties to be bound thereby which had been lost or destroyed, and secondary evidence of the contents was held sufficient to establish the written contract. In that case, however, the contract had been performed on the part of the plaintiff.
Since an undelivered deed may constitute a sufficient memorandum, it is of no importance which party has the instrument in its possession or where it comes from. If the memorandum or writing “signed by the party to be bound thereby" is not in the possession of either party; if it be found discarded and abandoned in some ash heap or floating about the streets, and is produced at the trial and shown to have been signed by the parties sought to be bound, and otherwise answers the requirements of the statute, it is sufficient.
In Ames v. Ames, supra, it was said in the opinion:
“Thus where a verbal agreement was made for the sale of land, a letter written by the vendor or purchaser to his own solicitor or agent stating the terms of the agreement, and not intended for the inspection of the other party, has been held to be a sufficient note or memorandum within the intent of the statute.” (p. 605.)
The opinion cites the case of Barry v. Coombe, 26 U. S. 640, where it was said:
“An examination of the eases on this subject will show that courts of equity are not particular with regard to the direct and immediate purpose for which the written evidence of a contract was created.” (p. 651.)
In Charlton v. Columbia Real Estate Co., 67 N. J. Eq. 629, 69 L. R. A. 394, the court said:
“Nor does it signify to whom the memoranduhi is addressed; it may be to the third person, and yet be a good writing to satisfy the statute of frauds. Form is not important . . . the reason for this is clear. The memorandum is only necessary to evidence the contract, not to constitute it.” (p. 633.)
The second of the two points presented is that the facts conclusively establish an abandonment by the plaintiffs of their contract after the partition sale. In the same connection it is urged that plaintiffs drew down the $1,000 check deposited and afterwards made no tender of the consideration. The same facts are used as a basis for the contention that if there was no actual abandonment, plaintiffs were guilty of laches in not commencing the suit until almost a year after the sale in partition. It was not necessary for plaintiffs to make a tender before beginning the suit, because of the attitude defendants took in asserting title.
“If the defendant puts himself in an attitude of default tender to him is unnecessary. It could serve no purpose so far as he is concerned and would be a mere formality. Equity does not insist on purposeless conduct and disregards mere formalities. Consequently all that is re-' quired in such cases is that the plaintiff shall place' himself in favor with the court, and this may be done by a proper offer in the pleadings.” (Niquette v. Green, 81 Kan. 569, 581, 106 Pac. 270.)
The trial court found that there had been no abandonment, and no laches. As was said in another case for specific performance of a contract for the sale of real.estate:
‘.‘When the court found all the facts in this case to be as the plaintiff contends, and found the affirmative defenses of the answer to be untrue, no course was open but to decree specific performance. The evidence fully supports the judgment.” (Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500.)
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from an order granting a temporary injunction restraining the defendants as officers of joint rural high-school district No. 3, in Pottawatomie county, from erecting a school building.
Joint rural high-school district No. 3, which comprises four school districts in Pottawatomie county and three in Jackson county, was established at an election held in 1919. At the same election an issue of $25,000 of bonds was authorized for the purpose of contructing a high-school building in the town of Emmett in Pottawatomie county, and the bonds were issued and sold. The plaintiffs are residents, landowners and taxpayers of the district, and in their petition allege that, aside from the proceeds of the bonds, the defendant officers have no other funds; that $50,000 was the lowest bid for the erection of the building which could be obtained by the defendants ; and that in November, 1919, defendants called a special election for authority to issue $19,000 additional bonds, which proposition was defeated at the election; that thereafter defendants, without any legal authority, were proceeding to erect a building “which, according to the plans and specifications,” will cost not less than $75,000, and had hired labor, employed mechanics and purchased materials for the building; and that this unwarranted action of the defendants will occasion the levy of an illegal tax against the property of plaintiffs and other taxpayers. A temporary injunction was prayed for, restraining defendants from entering into any contract for the erection of the building, hiring any labor, purchasing any material, or collecting any taxes for that purpose until the final trial, and that the injunction be made permanent. The petition was verified by one of the plaintiffs. On the 25th of March, 1920, the judge of the district court granted a temporary injunction, which became effective upon the giving of a bond by plaintiffs in the sum of $1,000.
The answer alleged that defendants were proceeding to construct a building that would cost, fully equipped, not to exceed $50,000, and that the district was already indebted in a large sum for materials purchased, ordered and supplied, and that it would be impossible to erect a building suitable and fit for the needs of the school district at a less cost.
At the outset we are met with an objection to a hearing of the appeal, and plaintiffs ask that it be dismissed on the ground that defendants are attempting to appeal from an order granting a temporary injunction allowed without notice. While it is conceded that the civil code of 1909 dispenses with the necessity of taking or saving exceptions (Kelley v. Schreiber, 82 Kan. 403, 404, 108 Pac. 816; Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418), it is insisted it is still necessary to make objections to a ruling before an appeal will lie, and that the code does not contemplate an appeal from an order granting a temporary injunction without notice, for the reason that the defendant, under section 262 of the code (Gen. Stat. 1915, § 7160), at any time before trial may, upon notice, apply to the "court or judge to vacate or modify the injunction. In this connection it is urged that defendants gave notice and filed a motion to set aside the injunction, that the motion was set for hearing, but was afterwards continued. Since it has been neither presented to the court nor decided, it is urged that the granting of the temporary injunction is not a final order. We are unable to see any merit in these contentions. The injunction was granted before the defendants had answered, and in such a case the statute allow's a temporary injunction to be granted without notice. The code, section 565 (Gen. Stat. 1915, § 7469), authorizes an appeal from an order granting an injunction, and the fact that a motion filed by defendants to set it aside has not yet been considered or passed upon by the trial court does not destroy defendants’ right to appeal from the granting of the injunction.
Although the plaintiffs speak in their brief of the order as a “temporary injunction,” there is a suggestion that because the order enjoined the defendants “until the further order of the court,” it was not, in fact, a temporary injunction, but a mere restraining order, and therefore not a final order. The plaintiffs asked and obtained a temporary injunction, which has been in force since some time in March. It has apparently been treated by all the parties and the court as a temporary injunction; and up to this time has effectually restrained the defendants from proceeding further with the erection of the school building. “ ‘Temporary injunction’ and ‘restraining order’ are often used synonymously. . . . The restraint which the order purports to impose, and not the name given to it, determines its true name and character.” (The State v. Johnston, 78 Kan. 615, 97 Pac. 790. See, also, City of Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858.) We regard the order in this case as a temporary injunction and, for the reasons stated, the motion to dismiss is overruled.
In their brief, plaintiffs cite several cases involving the powers of the board of directors of a school district, which we do not regard as in point. In the ordinary school district the resident taxpayers determine at the annual school meeting what levy shall be made for school purposes. But at the annual meeting of a rural high-school district the patrons of the school have no power except to elect a board. Section 4 of chapter 284 of the Laws of 1917 fixes the time'for the an- ■ nual school meeting for the election of officers of rural high-school districts on the day preceding the annual meeting of school districts. In the same section it is provided that the annual meeting of the high-school board shall be held on the following Monday, at which time the board is required to make the necessary levy for taxes, not to exceed four mills on the dollar on the valuation of all property in the high-school district, to pay teachers, to create a fund to retire any indebtedness and interest on the same, to purchase a site, to build, hire, or purchase a schoolhouse, and to pay incidental expenses of the high school. It is at the annual meeting of the high-school board on the third Monday of April that the board determines how the school shall be conducted and makes the tax levy. Rural high-school district No. 3 was not organized until July, 1919, and the annual meeting for that year was not held.
In section 5 the board is given authority to issue the bonds of the district for the purchase of a site and for the construction of a building or buildings for school purposes; provided, that no bonds shall be issued unless authorized by an election.
The petition in this case alleged that the board had no funds in its hands, except the proceeds of the bonds issued, which were insufficient to meet the cost of the building contemplated by the board; but the suit was filed and the temporary injunction was granted on March 25, 1920, only a few days prior to the time fixed for the annual meeting of the board to make a levy of taxes for the purposes determined to be necessary.
One theory upon which the petition is drawn appears to be that in the erection of a school building the rural high-school board is limited to the proceeds of the bonds voted by the district, but this is a mistaken view. In Wright v. Board of Education, 106 Kan. 469, 188 Pac. 439, the court considered the authority of a board of education, after being authorized at an election to issue $50,000 in bonds for the purpose of erecting a building for an industrial-training school, which was found to be insufficient, to make up the deficiency by the levy of a two-mill tax authorized by another statute for the construction and repair of school buildings. A somewhat similar situation arose in that case as in this. It was discovered after the bonds had been voted that, owing to the increased cost of labor and material, the proceeds of the bonds (even when supplemented by a donation of $10,000), would not be sufficient to pay for the building called for by the plans. In that case the board at first adopted a resolution to submit to the voters a proposition to issue additional bonds, but afterwards rescinded their action and decided to raise the additional amount by taxation. This action was under the authority of the statute authorizing an annual levy of that amount “for the purchase of sites and for the construction and repairing of school buildings.” Notwithstanding the fact that the statute which authorized the voting of bonds for the erection of buildings contained a provision that the board must complete the building within the estimated cost and should in no case create a deficiency in connection therewith, it was held that this did not prevent the expenditure for that purpose of such sum in excess of the amount of bonds voted as might be raised by the levy of a two-mill tax under the general statute.
In the present case we may assume that after the bonds were voted the school board discovered that, owing to the increased cost of labor and materials, it would be impossible to erect a building suitable and fit for the needs of the district and keep within the amount of the bonds and the original estimate. In the Leavenworth case, Wright v. Board of Education, supra, it was said:
“The legislature can hardly have intended that where, as in the present case, it is found impossible to erect a suitable building for the amount of the original estimate, the board must nevertheless, despite any obstacles or changed conditions, proceed to put up such an edifice as the bonds already voted would pay for.....If a board has on hand or can raise by the tax permitted in the current year, a sufficient fund to pay for such a building as is found to be necessary, there can be no occasion for issuing bonds. And if a part of the amount necessary to pay for the construction of a new building is available from a fund on hand or from the proceeds of current taxes, there can be no occasion for issuing bonds beyond the sum needed to make up the difference. We interpret the statutes as permitting the board to incur such expense in the erection of a school building as may be met from the proceeds of the bonds and the levy of a two-mill tax.” (p. 473.)
In this case the petition shows that the defendants, who were authorized to provide a school building, found that the $.25,000 in bonds voted for the purpose of building a schoolhouse, was insufficient, and that they contemplated the levy of a tax to meet the deficiency. It is not contended that the building the board was proceeding to erect is unnecessary; it seems to be conceded that a school building suitable for the district cannot be erected for.the amount of the bonds or for a sum less than that which the board proposed to expend. It is not alleged that the amount that might be levied under the provisions of the statute for the very purpose of erecting.a school building would not be sufficient to meet the deficiency in the amount of the bonds. There is no provision in the statute that a rural high-school building shall not cost to exceed $25,000; nor is there any provision that deprives the board of the power to contract for a building in excess of the amount of bonds issued. We see no reason why the board might not raise part of the funds necessary to erect a building by the issuance of bonds and levy a tax for the remainder of the cost, so long as they keep within the limits of the levy authorized by the statute. The duty of providing a suitable building for the high school is imposed upon the board, and not upon the district, and there is nothing alleged in the petition to indicate bad faith upon the part of the board. We interpret the provisions of section 4 of chapter 284 of the Laws of 1917 as conferring au thority upon the district board to levy taxes to be used in the erection of a school building and authorizing them, if they find it necessary, to issue bonds for that purpose, provided the proposition be submitted to the voters at an election. There is nothing in the statute to prevent the board, in our opinion, from making a levy of taxes to be used in whole or in part for the erection of a school building. As suggested in defendants’ brief, we think that if a proposition for the issuance of bonds were defeated at an election, it would be the duty of the board, under section 4 of the act, to make the necessary levy for taxes in order “to purchase a site, to build, hire, or purchase a schoolhouse,” provided they had not acquired the site “by donation” as authorized under section 5.
, The petition was subject to demurrer on the ground that it states no cause of action, and it was error to grant the temporary injunction. The cause is reversed and remanded with directions to dissolve the injunction.
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The opinion of the court was delivered by
Porter, J.:
The ten plaintiffs are the children and heirs-at-law of Harvey Cunningham, deceased, and the thirty-four defendants are his grandchildren. The plaintiffs seek to set aside the will of their father on the ground that at the time it was executed he was mentally incompetent and under undue influence. The court submitted to a jury, in an advisory capacity, two questions: first, whether at the time the will was executed the testator was of sound and disposing mind and memory, which they answered in the affirmative; second, whether the testator was unduly influenced by any person in making the will, which the jury answered in' the negative. The court approved the verdict, adopted the findings upon these questions, and further, found all the issues in favor of the minor defendants and against the plaintiffs. The plaintiffs appeal.
Harvey Cunningham was an old resident of Elk county, and the evidence shows that he was-a man of strong and forceful character, had taken an active part in local affairs, and had frequently been a delegate to political conventions. He owned about 1,920 acres of land in Elk and Chautauqua counties which, aside from the homestead, consisted wholly of pasture lands. At the time the will was executed he was 88 years of age. His wife had died a few months before, and he was greatly affected by her death. There was evidence offered by the plaintiffs indicating that he had hallucinations; that he was worried over the belief that his wife had been prematurely buried, and that he fréquently asked to be taken to the cemetery, that the grave be opened, and that apparently he would not be satisfied until he knew that his wife had not turned over in her coffin or he was assured that she had not been smothered. The will was executed on the 12th day of September, 1917. He died about two months later. His son, Pete Cunningham, was the only one of the family who had remained at home, and for many years Pete and his family had lived at the home place. In order to compensate them for their trouble and services, Mr. Cunningham, at the time he executed the will, and as part .‘of the same, transaction, executed a deed conveying to Pete the 160 acres comprising the homestead and 160 acres of the pasture land, and stated in his will that by reason of this provision neither Pete nor his children should take anything under the will. After giving his personal property to a daughter and son, he devised all his real estate to Pete Cunningham in trust to hold and dispose of as directed in another provision. The trustee was directed to rent and manage the- real estate according to his own judgment, and annually divide and apportion the net rents and profits among the testator’s children and certain of his grandchildren.
The will contained the further provision that should any child or grandchild contest the will, the one so contesting should take no portion of the estate, that portion to be divided among the remaining devisees. - There was a provision that Pete Cunningham should receive for his services as trustee under the will the sum of $100 annually, and he was named as executor of the will. Immediately after the death of Harvey Cunningham, the plaintiffs agreed among themselves to ignore the rights of the grandchildren (including their own children) and made an offer to Pete Cunningham that if he would consent to this he was to- be allowed to retain the land given him by the deed and to share equally with the others in the rest of the real estate. It was agreed that he should qualify as executor, that the will should be probated, and that afterwards a suit should be brought to set aside the will on the grounds stated in the petition.
On the trial Pete Cunningham and several of the plaintiffs testified that this agreement was entered into; that they agreed among themselves that by this method they could take the lands in fee simple; and that they disregarded entirely the rights of the grandchildren and did not consult with them. Pete Cunningham also admitted that before this agreement was made he had retained an attorney to defend the will in case an attempt was made by any of the heirs to set it aside.
The grandchildren, among other contentions, insist that the appeal should be dismissed and the judgment affirmed on the ground that Pete Cunningham, having accepted the real estate deeded to him by his father as part of the same transaction, and having accepted the trust imposed by the will by qualifying as executor, comes into court with hands that are unclean; that the agreement between him and his brothers and sisters to set aside and ignore the will is one which under the circumstances equity should not enforce. Authorities are cited where it has been held that contracts of this kind are void as against public policy because they amount to a breach of faith on the part of the trustee. The court, however, found all the issues in favor of the defendants; the answer had alleged that Pete Cunningham was estopped by his conduct to maintain the action, and that three of his brothers who had become sureties on his executor’s bond were also likewise es-topped. In view of the fact that the record discloses such an abundance of evidence to sustain the findings made by the jury and the court upholding the validity of the will, we deem it unnecessary to pass upon the question of estoppel or the question of public policy presented.
Some years prior to the making of the will, Harvey Cunningham had executed a will to which he had attached, at different times, seven codicils. A day or two before he made his last will he went in a car with Pete to Moline, and at his request the banker who had charge of the old will came out and talked with him. He told his banker that he wanted to make a deed to Pete to the home place and some other lands and wanted it done as quickly as possible. His banker, who had been his friend for thirty years, told him that this would probably interfere with his will — might necessitate the making of a new one. He asked the banker if he could attend to the matter of making a new will, but the latter told him it was an attorney’s business, and suggested Mr. Sims, an attorney. It was agreed that, the banker would make arrangements with Mr. Sims, and on the following day the banker brought the attorney to the Cunningham home. The attorney, in the meantime, had read the old will and advised Mr. Cunningham that there ought to be a new one written in place of having an additional codicil to the old will.
The testimony of Pete Cunningham, so far as it tended to show that his father was not mentally sound, was largely discredited by his admissions that although he and other members. of the family were present at the time the will was talked over and when it was-executed, none of the family suggested that the old gentleman was not competent to make a will; that Pete never suggested that his father was not capable of making the deed to him which he accepted, recorded and claimed title under, and also by the uncontradicted testimony showing that some time after the will had been executed, Pete retained the services of Mr. Sims, the attorney who drew the will, to defend any action that might be brought by anyone to defeat' the will.
The deposition of Mr. Sims, the attorney, was taken and read on behalf of the defendants. He told what occurred at the first interview, and the reasons stated by the testator for making the provisions with respect to the disposition of his real estate. In substance, Mr. -Sims testified that Mr. Cun ningham said he wanted to fix it some way so that his children, except Mrs. Bryan and one son in Colorado, should get the rents and the profits of the pasture land; that he told the attorney the number of acres of land that he owned, and the attorney suggested to him that this would amount to over 160 acres for each of the children after giving Pete the lands spoken of, and suggested that it would be a good thing for him to divide the land himself and let each child have certain pieces of the land; that Mr. Cunningham said, in reply:
“ ‘That is not a good way .to handle it, the land is nearly all in one big’ pasture and it ought to be kept and used together as one body,’ that some parts of it was much better than others, some had water on it, other parts did not, and it would be almost impossible to divide the land equitably.
“I then said to him, ‘If you fix this land as you are talking it will be held together here and won’t be divided for forty or fifty years,’ and he said [with an oath], ‘that is just the way I want it, they won’t get to spend it and run through with it and them little grandchildren will get it.’ He said, ‘They will say I am crazy because I don’t let them have it themselves so they can spend it, but I want them little; grandchildren to get that property after they are through with it and all get their share.’ ”
The witness- further testified in substance:
■“I asked him if he wanted to pay anything and, if so, how much, (to Pete for acting as trustee) and the old gentleman called Pete . . . and asked how much he thought he ought to have . . . and Pete said he thought $150 would be all right and the old man said, ‘That is too much, $100 is enough.’ ... I further said to him, ‘If they are going to say you are crazy you ought to have some of your old neighbors who know you best act as your .witnesses,’ . . . and I told him I thought it would be best to have at least four. He said that Andy McKay of Longton was one of his best friends and he would like mighty well to have Andy. That Phil Arnall of Elk Falls was another good friend but he guessed he lived too far away. I said to him, ‘Mr. Cunningham, you leave that to me, if you want these men to act as witnesses I’ll see that they get here’ and he said ‘All right.’ . I said to him, It would probably be a good idea to have his family physician and asked him who he was. He said . . . Dr. Shaffer had been waiting on him some. I asked him if I should bring Dr. Shaffer out and he said .‘Yes,’ if I thought it necessary; that he wanted to fix it so they couldn’t say that he was crazy.”
The testimony of the attorney as to what occurred the following day, after he had stated to Mr. Cunningham that the witnesses were there to witness the will, is:
“I said to him, ‘What do you want to give Pete?’ and he said, ‘The home place and 160 acres of pasture land’ ... I asked him what he wanted done with his personal property, and he said give it to the son in the West . . . and Mrs. Bryan. I asked him what he wanted done with the balance of his pasture land, and he said he wanted to keep it together in one body, Pete to look after, pay the taxes and divide the proceeds up equally among all his children except Sarah Bryan and his son in the West and Pete, . . . how much he wanted Pete to have for taking care of the pasture, and he said ‘$100 a year’ . . . how long he wanted the pasture land kept together and rented, and he said as long as any of his children lived . . . what he wanted done with the pasture land after his children were all dead, and he said to divide it among his grandchildren. I asked, him- to tell the witnesses what he wanted done if any of his children brought suit to set aside the will, and he said to cut them off without anything.”
. Several of the witnesses to' the will testified in substance that they saw nothing to indicate that the testator did not know what he was doing at the time he executed the papers— the deed and the will.
One of the contentions urged by the plaintiffs is that the testimony concerning communications between the attorney and client was incompetent under section 321 of the civil code (Gen. Stat. 1915, §7223). We think the objections to his testimony and the motion made to strike out were properly overruled. In addition to the fact that many of the things the attorney testified to were corroborated by other testimony, it has been decided that an attorney who acts as a scrivener in the preparation of a contract, regarding property or in the drawing of a will may testify to communications with the deceased at the time the deed or will was prepared or executed, because under such circumstances the communications are not privileged. (Black v. Funk, 93 Kan. 60, 143- Pac. 426; Sparks v. Sparks, 51 Kan. 195, 32 Pac. 892; Lumber Co. v. Cox, 94 Kan. 563, 566, 147 Pac. 67; 4 Wigmore on Evidence, §2297.)
In Durant v. Whitcher, 97 Kan. 603, 156 Pac. 739, the rule was applied that “in an action to set aside a will the lawyer who drew it may testify to the conversation had at the time between himself and the testator” (syl. ¶ 1), and also that the scrivener and subscribing witnesses, of a will are competent witnesses as to the mental condition of the testator.
In Black v. Funk, supra, it was said:
“Communications received from the testator not being privileged, it is manifest that the attorney may relate the facts and circumstances surrounding the preparation and execution of the will to show that the testator was not under any improper restraint.” (p. 63.)
One of the witnesses for the plaintiff was Mrs. Stuckey, a daughter of the deceased. The court sustained a number of objections to parts of her testimony and struck out other parts of it. It is complained that the testimony was improperly excluded. No error was committed in the rulings. The court properly struck out testimony of communications between the daughter and her father, in his lifetime, but permitted her to testify to statements by him to other persons in her presence. There was no error in the court admonishing her to tell what she observed, in place of giving her opinion as to the condition of her father’s mind. Many of the statements stricken out were mere conclusions and opinions. She was permitted, however, to testify that her father was not in his right mind and that his mental condition had been the same for about six months prior to the execution of the will.
There is no force in the contention that the court erred in the instructions to the jury. The findings submitted were merely advisory, and the views of the court, as reflected by the instructions, show that the court fully understood and applied the law of the case. The instructions were fair and fully covered the issues submitted to the jury.
Mary Ellen McMillan, one of the plaintiffs, has filed a motion asking to be dismissed as an appellant and stating in an affidavit that she never authorized the use of her name as a plaintiff in the court below and never authorized an appeal in her behalf. As to the authority for the-appeal she is contradicted by an affidavit of one of appellants’ attorneys. The minor defendants also resist the motion and direct attention to the record showing her presence during the trial in the district court and á statement in her presence by her sister, Mrs. Stuckey, while a witness, to the effect that her sister, who was present in the court room, had agreed with the other plaintiffs about the settlement of the estate. It is also said that a similar motion was presented to the trial court after the rendition of the judgment, and that it was overruled. In view of these facts, there seems nothing for us to do but to overrule the motion.
Finding no error in the record, and the judgment being supported by sufficient evidence, it is affirmed.
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The opinion of the court was delivered by
Mason, J.:
H. L. Strong sued Thurston and Son for damages upon two grain contracts, one for oats and one for corn. As the questions raised regarding the former include all those relating to the latter, as well as some others, only the oats contract will be discussed. The plaintiff • arranged with the defendants by telephone for the purchase from them of a car of oats for shipment on or before November 6, 1917. He immediately sent a written confirmation which, among other things, included a provision that if the grain was not shipped within the time fixed, the contract should remain open until shipment was made or the plaintiff canceled 'it or bought in for the defendants’ account. The defendants failed to ship within the original time, and the plaintiff sent three notices of extension, the last expiring December 10, 1917, and then, getting no word from the defendants, bought elsewhere and sued for the difference between the market and the contract price. The plaintiff recovered, the amount awarded him being based upon the market price on November 7. He appeals on the ground that under the special findings of the jury his recovery should have been based upon the market price on December 11, after the expiration of the last extension, the difference amounting to 143/2 cents a bushel. The defendants contest this point, and also complain of the j udgment rendered, and ask that it be entirely set aside, principally upon the ground that the written confirmation had not been assented to by them, that it did not confirm an existing contract but undertook to make a new one, and that in any event it was unenforceable because of some of its provisions.
1. The jury in answer to special questions found that a custom existed among grain dealers, which was known to the defendants, for purchasers of carload lots by telephone to send written confirmations to the seller; and that the confirmation relied upon by the plaintiff was sent by him to the defendants and received by them without objection. This confirmation concluded with a provision that in the absence of a notification to the contrary it should be understood as accepted and binding in all its terms. In this situation, the failure of the defendants to make objection was tantamount to an acceptance of the letter as a statement of the terms of a binding contract. (Strong v. Ringle, 96 Kan. 573, 152 Pac. 631; Wallingford v. Grain Co., 100 Kan. 207, 164 Pac. 275.) The doctrine of the cases cited is in no sense qualified by anything said in Cardwell v. Uhl, 105 Kan. 249, 182 Pac. 415. There the seller complained of an instruction to the effect that in determining whether or not oral contracts had been entered into the jury might consider letters of confirmation sent to him, and this court held merely that no error had thereby been committed.
2. The defendants complain that the petition left it uncertain whether the plaintiff was suing on an oral or a written contract, or upon several contracts of a like undefined character. The criticism is largely verbal. Where the parties to an oral contract expressly or by fair implication agree that its terms are stated in a writing subsequently made, it is of no practical consequence whether or not the entire transaction is spoken of as the entering into a written agreement. Nor is it important that an extension of the time of performance of a contract, like any other change in its terms, may be said in a sense to create a new contract. There was no opportunity for the defendants to be in any way misled to their prejudice by the form of the pleadings.
The defendants, by inquiring what is meant by the following phrases used in the confirmation, suggest that they were obscure: “Basis — F. O. B. your track; . . . Billing — Load and call at our expense for billing; Dest. Ry. Katy.” We do not regard them as unintelligible, but as the result of the case does not depend upon it we see no occasion for undertaking their interpretation.
3. The defendants assert that the written communication sent to them changed some of the terms of the oral contract pleaded and added new onés, and therefore was not a confirmation at all. The oral contract set out in the petition as amended was for a car of 1,250 bushels of No. three or better mixed oats at 56 cents track Parsons, shippers’ affidavit weights, federal grades, to be billed out by November 6. The confirmation reserved to the plaintiff the right to change the destination. The provision of the oral contract implied that a shipment was to be made to some point unnamed, and the confirmation merely stated what was doubtless to be inferred— that the buyer was to give directions concerning this. The confirmation contained a provision, which was a part of the printed blank used, that the contract was not complete until shipments were received, graded and weighed at final destination. This was obviously rendered inapplicable by the insertion of these words, which conformed to the oral, contract, in a blank left to show the agreement as to weight — “Shippers reliable affidavit.” Various statements in the confirmation as to shipment, payment and demurrage, which are referred to as changes, are mere details in no way inconsistent with the general scope of the oral contract.
The provision of the confirmation which is most plausibly urged as a departure from the oral agreement read in part as follows: “Grain not shipped in contract time, will be considered as open contracts until shipped, or you are advised we have canceled same or bought in for your account.” This was a matter not touched on in the telephone conversation, but the question as to what the relations of the parties should be in the event shipment was not made within the time stated was one about which there might be a difference of opinion. Conced ing that the law would define their rights with exactness in the absence of an express provision, they were privileged to make such agreement in that respect as they saw fit. The explicit statement of the effect of a failure of the seller to comply strictly with his agreement as to time was entirely pertinent to the subject, and was in the nature of an added detail of the transaction. It is a proper function of the confirmatory letter to afford assurance, not merely that there has been no mistake by either party in catching the words of the other, for instance concerning prices and amounts, but that they have the same understanding as to the obligations in detail which each has assumed. The benefit to the business world of the employment of such a device would be largely curtailed if the recipient of a purported confirmation of an oral agreement for purchase and sale could remain silent and later successfully deny any force to one of its provisions on the ground that the matter to which it relates had not in fact been previously mentioned.
4. To the provision of the confirmation which has just been quoted, was added: “If unable to ship in contract time, phone or wire us and secure our further instructions before loading and shipping, and we will then advise if we can still use on contract.” The defendants claim that this addition converted the transaction into a wagering agreement, unenforceable because of that feature. Neither this provision nor anything else in the contract appears to us to suggest that an actual delivery of the oats was not intended. We take the effect of the provision under consideration to be this: If the defendants failed to make shipment within the time set they remained under an obligation to tender performance on their part at such time as they should select (unless sooner notified that the plaintiff had canceled of bought in) which offer the plaintiff might accept or reject, his selection in this regard being likely to be influenced by the then state of the market. If he accepted it, the deal would be concluded by a shipment. If he rejected it, he thereby relieved the defendants from any liability for damages for breach of the contract. He could not, after receiving such offer, insist upon the defendants paying him the difference between the contract and market price and prevent their satisfying their obligation by actual delivery of the grain. The transaction, therefore, did not fall within the condemnation of either the common law or the statute. It was competent for the parties by agreement to make the right of the buyer to refuse the grain when offered one of the consequences of the sellers’ default.
5. From November 6, the date originally fixed for shipment, until November 17, the contract stood without action by either party; then, according to the plaintiff’s evidence, he, by telephone, at the request of the defendants, extended the time of shipment to November 25, sending a written confirmation to which no reply was made. Subsequent extensions were made to December 3 and December 10, confirmations being mailed and received. The jury found specifically that the plaintiff had extended the time within which the defendants might make shipment up to December 10; that the market value on November 7 was 59% cents, and on December 11, 74 cents; and that the defendants never notified the plaintiff that they were not going to ship the oats. All conflict^ of testimony on the issue regarding the extensions are therefore disposed of, and they must be regarded as effective unless some legal principle would thereby be invaded.
We see no obstacle to holding the extension agreements valid. The course of the defendants in failing to object in any way to the supplemental confirmations sent them was plainly adapted to induce the plaintiff to believe that they acquiesced in them, and they must be held to have intended the natural result of their conduct.
The original confirmation contained a provision that any change might be a part of the contract if incorporated in a written supplement, but that any verbal understanding not written in the (original) confirmation should be of no effect. We regard the incorporation of the terms of the extensions in written statements sent to the defendants and received by them without objection as amounting to their incorporation in a supplement and as giving them the force of written agreements.
Each extension operated to the advantage of the defendants. By their failure to meet their obligation with promptness they had already incurred a liability to the plaintiff for damages. His forbearance gave them renewed opportunity to discharge all their obligations by performance. If they had at any time concluded that a further rise in price was probable, they could have brought matters to a head and avoided the risk of an increase in the amount of their loss as then indicated by buying at the market and filling the order. They could perhaps have accomplished substantially the same result by merely notifying the plaintiff that they would not make delivery, creating an immediate breach of the contract, for which the measure of damages would turn upon the then state of the market. (Note, L. R. A. 1917A, 1004, 1005.)
The situation is not the same, however, as that presented in Flour Mills Co. v. Dirks, 100 Kan. 376, 164 Pac. 273, where the original contract in so many words gave the buyer the right to make extensions, or in Wichita Mill & Elevator Co. v. Liberal Elevator Co., 243 Fed. 99, where a rule of the Kansas Grain Dealers Association which was made a part of the contract authorized such an extension by including it as one of the options given to the buyer upon, the sellers’ default. But here the extension contracts, the terms of which were evidenced by the supplemental confirmations, were supported by a sufficient independent consideration in the mutual agreements of the parties. The plaintiff waived his right to close the deal before the. date named, and the defendants substituted for their existing obligation to make delivery at some indefinite time to be selected by them a promise to deliver within the new period fixed.
As against the complaint of the defendants the action of the trial court is affirmed. A modification is ordered in accordance with the contention of the plaintiff — the amount of the judgment to be increased to correspond with the state of the market as it was found to be on December 11.
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The opinion of the court was delivered by
Marshall, J.:
M. L. Smith, widow and heir of Felix Smith, deceased, appeals from a judgment of the district court dismissing her appeal from a judgment of the probate court allowing a claim in favor of Flora Foy against the estate of Felix Smith. He had died in Arkansas, intestate, and left surviving him his widow, and Fred Smith and Flora Foy, his children. W. B. Fc r, husband of Flora Foy, was appointed administrator of the estate of Felix Smith by the probate court of Osborne county. Fred Smith and Flora Foy each presented to the probate court a claim for allowance against the estate. Both claims were allowed on the same day; from the orders allowing those claims M. L. Smith appealed. She filed but one affidavit and one bond. The affidavit stated “that she intends to appeal from the-orders of said probate-court, made on February 23, 1918, in the matter of the allowance of claims of Fred Smith and Flora Foy, by said probate court,” and that the “appeal is not taken for the purpose of delay.” The bond recited that “the condition of this obligation is such, whereas, said obligor, Mrs. M. L. Smith, intends to appeal to the district court of Osborne county, Kansas, from certain orders made in the probate court of Osborne county, Kansas, on February 23, 1918, in the matter of allowance of claims against the estate of Felix Smith, deceased, W. B. Foy, administrator, in favor of one Fred Smith in the sum of $470.75, and in favor of Flora Foy in the sum of $131.”
In the district court Fred Smith and Flora Foy presented separate motions to dismiss the appeals on three grounds: first, that M. L. Smith had no capacity to appeal; second, that the affidavit for appeal failed to comply with the requirements of the statute, which latter ground was based on the proposition that the affidavit for appeal failed to recite “that the appeal is not taken for the purpose of vexation”; and third—
“That such appeal bond runs to the state of Kansas and not to this appellee; that one purported bond and only one is offered and filed in the said probate court as the basis for the appeal from the decision of the said probate court in two separate and distinct proceedings determined and decided therein in one of which this appellee is not a party, nor in any wise interested, and the other being this proceeding; and the said purported bond is without surety or security to act, the purported surety thereto in signing the same, being ultra vires vbid and ineffective.”
The bond was amended on leave of court by obtaining additional surety. M. L. Smith requested leave to file an amended bond in the appeal as to Flora Foy; that leave was denied, and the appeal was dismissed as to her' claim, but was not dismissed as to the claim of Fred Smith. He does not appeal to this court.
1. Did M. L. Smith have the right to appeal from the judgment of the probate court? She is interested in the estate of Felix Smith; after his debts have been paid, she will be entitled to one-half of-the remainder of his estate. She is interested in seeing that the funds of the estate are not diminished by the allowance of claims, for which the estate is not liable. If the assets of the estate are dissipated, she will be injured. This brings her within the principle underlying the rule declared in Sarbach v. Deposit Co., 99 Kan. 29, 32, 160 Pac. 990, where this court said: .
“That a creditor of the personal estate who is dependent upon the personal estate’s share of the residue of a partnership estate for the satisfaction of his claim, has such interest in the partnership estate as will entitle him to resist the allowance of a questionable claim in the settlement of the partnership estate in the probate court, and to appeal from the decision of that court.”
If a creditor is interested in preserving the assets of an insolvent estate for the purpose of increasing, the amount that he may receive to apply on his claim, an heir is likewise interested in preserving the assets of an estate for the purpose of increasing the amount of his share on the final distribution. If a creditor has the right to protect the assets in order to secure the payment of his claim, an heir should also have the right to protect the assets in order to preserve the amount of his distributive share. If a creditor has the right to appeal, an heir should have the right to appeal. It necessarily follows that M. L. Smith can appeal from the judgment of the probate court.
2. The complaints concerning the affidavit for an appeal and the appeal bond may be considered together. The affidavit for an appeal in the present case is very similar to the one found in Jarrard v. McCarthy, 95 Kan. 719, 149 Pac. 696, where the affidavit recited that it was “made in good faith and not for the purpose of willful delay.” (Syl. ¶ 1.) This court there held’ that the appeal should not have been dismissed. The reasoning by which that conclusion was reached applies in the present case. It should be remembered that these appeals from the probate court were taken from separate orders of allowance of claims made on the same day. The administration of the estate of Felix Smith was one proceeding, although numerous orders may have been made therein at different times from which appeals might have been taken, if taken within the time allowed therefor. These appeals were taken within proper time, and the clear intention of M. L. Smith was to appeal from both orders.
“Appeals are favored, and mere technical defects or omissions are to he disregarded, as far as possible, without obstructing the course of justice.” (Haas v. Lees, 18 Kan. 449, syl. ¶ 2.)
Tq the same effect are — Smith v. Nescatunga Town Co., 36 Kan. 758, 14 Pac. 246 ;C. K. & W. Rld. Co. v. Town-Site Co., 42 Kan. 97, 104, 21 Pac. 1112; Brown Co. v. Burkhalter, 75 Kan. 321, 89 Pac. 696; Mercantile Co. v. Wimer, 97 Kan. 31, 33, 154 Pac. 216. Amendments of affidavits for appeals and of appeal bonds, have been permitted, and new appeal bonds have been filed in order to perfect attempted appeals., where the statute giving the right to appeal had not been strictly complied with. (McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239; Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 740; Elliott v. Bellevue, 82 Kan. 78, 107 Pac. 794; Mercantile Co. v. Wimer, 97 Kan. 31, 154 Pac. 216.) If the court was not satisfied with the appeal bond, it could have directed that a new appeal bond, or bonds, be filed. The rules that" have heretofore been declared control in the present instance. The appeal of M. L. Smith was improperly dismissed as to Flora Foy.
It is so held, and the judgment dismissing that appeal is reversed.
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The opinion of the court was delivered by
Porter, J.:
This case is here for the second time. In the former opinion (Kinkel v. Chase, 102 Kan. 275, 169 Pac. 1134) practically every question raised by Chase in the present ap peal was decided adversely to him. On the former appeal Kinkel was the appellant.
The facts out of which the litigation arises were stated more fully in the former opinion than will be necessary here. Someone brought an action in the district court of Morris county against A. R. Kinkel (the plaintiff in the present suit) and Dyson Jackson on a promissory note, and judgment was rendered against them on the 23d day of June, 1913. A. R. Kinkel satisfied the judgment as to himself and, in the manner set forth in the former opinion, became duly subrogated to the rights of the judgment plaintiff. He brought this action to have that judgment declared a lien upon certain lands in Morris county which he claimed Jackson owned and had transferred in fraud of creditors. The same day Kinkel’s judgment was rendered another judgment was taken against Dyson Jackson in the same court. The action was a creditor’s bill and the judgment declared that 420 acres of land, to which Jackson formerly held the title, had been transferred by him in fraud of his creditors. At the first trial Kinkel attempted to rely upon that judgment to prove the fraudulent disposition of Jackson’s property. He was a stranger to the action; it was not brought for the benefit of all the creditors, nor for the benefit of all those who might see fit to join therein, and the trial court held that Kinkel could not rely upon the judgment, and sustained a demurrer to his evidence.
The action of the trial court in holding that Kinkel could derive no benefit from the judgment to which he was a stranger was approved in the former opinion, but it was said, however, that—
“The judgment which plaintiff owns against Dyson Jackson was a lien upon the equitable interests of Dyson Jackson in the real estate in question from the first day of the term at which it was rendered. It was of record when Chase purchased the land. All that remained for Kinkel to establish was, that when Dyson Jackson repurchased the land he took the title in the name of his wife and son in fraud of creditors.” (p. 280.)
It was therefore held that the court should not have sustained the demurrer, because if the real estate in fact belonged to Dyson Jackson on June 23, 1913, Kinkel’s judgment was a lien. The case was therefore remanded with directions to permit Kinkel to try out the question of fraud.
On the second trial attorneys for Chase insisted upon retrying all the issues, and the whole case was gone over again. This was not in accordance with the mandate, but no one was prejudiced, because the issue which the court had to try was determined on the evidence of one witness. The evidence was sufficient to sustain the finding that Dyson Jackson, in fraud of his creditors, procured a reconveyance of some of the land to a member of his family; and that he was the equitable owner of the land when Kinkel’s judgment was rendered. That ends the litigation. It is unnecessary to consider the complaint that certain court records were admitted which were not competent. The trial was by the court, and the presumption is that only competent evidence was considered. Rulings on the admission of evidence in trying issues which were settled by the former appeal need not be considered. Besides, it is difficult to conceive how the admission of record evidence of the former suits and actions could have prejudiced the defendant, since the court determined upon other evidence the sole issue of fact sent back for trial. Kinkel was entitled to the decree declaring his judgment a lien upon the land.
Affirmed.
|
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