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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted in police court of violating a city ordinance, and appealed to the district court. The district court quashed the complaint, on the ground the ordinance was void. The city appeals.
The ordinance regulated operation of motor vehicles on streets of the city, and required a rear red light to be displayed between certain hours. The motion to quash asserted the ordinance was bad because willfulness or wrongful intent was not made an element of the offense, and stated argumentatively that a light might go out without willfulness or intentional fault, and in spite of the utmost care.
If it were necessary to validity of an ordinance that conditions of'the character indicated in the motion to quash should be inserted, the full protection which the regulation is designed to afford could not be secured, and evasion would be so easy the regulation would practically if not utterly fail. The regulation falls, therefore, within the numerous class in which diligence, actual knowledge and bad' motive are immaterial, and the fact of noncompliance entails penalty. Instances of such regulations are noted in the case of Wagstaff v. Schippel, 27 Kan. 450, at page 458: sale of adulterated milk; sale of liquor to minors; forfeiture of ship having smuggled goods on board, although owner and officers may be innocently ignorant; and other fiscal and police regulations.
In the case of The State v. Bush, 45 Kan. 138, 25 Pac. 614, the statute involved penalized any city clerk who registered voters who did not personally appear and apply for registration. There was no reference to any specific intent. It was held that none was necessary except intent to commit the interdicted act, and that intention would be inferred from commission of the act. In the cases of The State v. Moulton, 52 Kan. 69, 34 Pac. 412, and The State v. Rennaker, 75 Kan. 685, 90 Pac. 245, it was held that ignorance of the intoxicating character of a beverage sold would not exempt the seller from prosecution for selling intoxicating liquor. In the case of Emporia v. Becker, 76 Kan. 181, 90 Pac. 798, an agent in charge of a store was fined for conducting business without payment of a license tax. The agent did not know his principal, the owner of the store, had not paid the tax. In the opinion it was said:
“Breach of the ordinance is made a misdemeanor, and a specific intent or guilty mind is not an essential element. Ordinances and statutes similar to the one in question may impose penalties irrespective of any intent to violate them. It is immaterial that the appellant may not have intended to break the ordinance, as he became a lawbreaker and subject to punishment when he did the things prohibited by the ordinance.” (p. 184.)
The distinction between offenses of this character and those « involving conduct malum in se, and so necessarily requiring an intent to do wrong, is illustrated in the case of The State v. Eastman, 60 Kan. 557, 57 Pac. 109. See, also, The State v. Brown, 38 Kan. 390, 16 Pac. 259.
The judgment of the district court is reversed, and the cause is remanded with direction to deny the motion to quash.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a claim against the estate of the late John E. Lawless of Rawlins county. The claim was founded upon the outcome of a certain business partnership which had existed between the plaintiff and Lawless.
In the year 1907, plaintiff established Lawless in business at McDonald in Rawlins county and furnished him with a stock of merchandise valued at $4,374.48. Plaintiff and Lawless agreed that the latter should conduct the business and pay the expenses, and that the profits should be divided between them. Lawless was to order and purchase merchandise on the advice and approval of plaintiff, and to turn over to plaintiff the cash and notes received from the sale of merchandise, and Lawless was to be credited therewith and charged with the value of the original stock and the cost of other goods purchased. Plaintiff was to supervise and handle their dealings with wholesalers. Under these arrangements, the business was conducted from 1907 until March, 1911, although Lawless did not wholly comply with his duty to report to plaintiff, nor did he always remit the cash and proceeds of the business, and he sometimes did obligate the business to wholesalers without the approval or knowledge of plaintiff. In March, 1911, the parties agreed to discontinue the business, and the goods, notes, and accounts were turned over to plaintiff. It was agreed that the plaintiff should liquidate the business and pay off the bills payable to wholesalers, collect the notes and accounts, and that plaintiff and Lawless would then make a final settlement.
All these agreements were oral. The community where the business had been conducted suffered from crop failures and short crops during the years 1911 to 1915, inclusive, and the collection of outstanding accounts was consequently very slow. Lawless had obligated the business heavily to wholesalers, and he had failed to keep plaintiff apprised of the nature and extent of these obligations, and some litigation arose over their adjustment. Lawless, also, without the knowledge of plaintiff, had withdrawn cash and merchandise from the business for his private use. It took a long time to straighten out these details, and it was not until 1916 that the business was finally wound up; and then it became apparent that plaintiff was entitled to recoupment in the sum of $7,147.40.
Meanwhile, Lawless had died in February, 1914. No administrator had been appointed for his estate, nor was any effort made to -secure such appointment until in May, 1917, when plaintiff, as a creditor, filed application therefor. An appointment was made in December of that year, and thereafter plaintiff filed a verified claim against Lawless’s estate, consisting of a book account, covering all the transactions of the business from its inception in 1907, and which involved debits of $30,478.94 and credits of $23,331.54. Plaintiff’s claim was rejected by the probate court, and on appeal a demurrer to his petition was sustained on two grounds: (1) no cause of action, and (2) the statute of limitations.
Since the cause was determined on a demurrer to plaintiff’s petition, the foregoing recital of facts must be taken as true, so far as concerns this appeal; and the defendant’s first objection raised by the demurrer was not well taken. While the business relationship between plaintiff and Lawless was governed by the terms of their contract, that relationship was essentially a partnership. Their dealings with each other and with the wholesalers and with the public were of a character which logically belong in the category of partnerships. Their rights and liabilities toward each other and toward third parties were those of partners. It was proper and not unusual that they should agree that one of them should liquidate the business. It was proper, and legally correct, that their final adjustment with each other should be deferred until the business was completely wound up so far as concerned their debt ors and creditors. And so this court has no difficulty in holding that the petition stated a cause, of action. In Brooks v. Campbell, 97 Kan. 208, 155 Pac. 41, it was said:
“When a partnership business is closed out, a cause of action for an accounting and settlement arises between the partners, under an implied contract mutually and equally to share the profits and bear the burdens of the partnership.” (Syl. ¶ 1.)
What about the statute of limitations? The law is thoroughly established that when a business partnership is discontinued and its affairs are turned over to a liquidator for the purpose of being wound up, a final settlement between the partners cannot be made, whether for division of proceeds or for determination of their proportionate liabilities, until the partnership assets have been sold, the credits collected, and the debts paid.
Taking plaintiff’s petition as true, as at present we are bound to do, the long delay in winding up the business was caused by the uncertainty surrounding the extent of the liabilities to wholesalers, and the series of crop failures in that locality which delayed the collection of the outstanding notes and accounts. Notwithstanding these delays, if the final determination of the status of affairs in 1916 had disclosed a surplus in the hands of the liquidating partner, Lawless or Lawless’ estate would have an absolute right to share in that surplus. Moreover, if there had been no assets in Lawless’ estate to make it worth while to have an administrator appointed until such; surplus was disclosed in 1916, the right of the Lawless heirs to have an administrator appointed to sue for a share of that surplus could not have been denied. In this case an earlier appointment of an administrator would have served no purpose. There would have been nothing for an administrator to do. He would merely have had to wait until the liquidating partner had accomplished the task of winding up the business. The fact that the contract was not in writing does not affect it. It was the circumstances and not the terms of the contract that delayed its performance for more than a year. (Henshaw v. Smith, 102 Kan. 599, 602, 603 171 Pac. 616; Dubbs v. Haworth, 102 Kan. 603, 607, 171 Pac. 624.)
In Brooks v. Campbell, supra, this court casually noticed the principle which governs this case. In the opinion it was said:
“The other case cited by appellant (Benoist et al. v. Markey, Tutor, et al., 25 La. Ann. 59) is much more to the point. There the firm of Benoist, Shaw, Murphy & Newman had formed a partnership in 1859. Its business was ruined by the Civil War, and there was nothing done towards a settlement of the partnership business until 1866, when suit was begun and a receiver appointed upon the application of the parties. Litigation of several years’ duration ensued. This was a plain case where the statute should not be held to begin to run until a settlement of the partnership affairs had been effected and^until the partners could have an opportunity to commence proceedings under the judgment settling the respective rights of the liquidating partners.
“Other cases holding that the statute does not under all circumstances begin to run on the dissolution of the partnership are Holloway v. Turner, 61 Md. 217, Jordan v. Miller and als., 75 Va. 442, and Riddle v. Whitehill, 135 U. S. 621. They relate to partnerships being wound up in due course, realizing assets, satisfying debts, etc. Obviously no statute of limitations would run in such cases.” (p. 211.)
Brooks v. Campbell has been republished in Ann. Cas. 1918 D. 1105, and is followed by an elaborate note, from which we glean these pertinent excerpts:
“If after the dissolution of a firm either by the act of the persons concerned or by operation of law it is necessary to continue the partnership relation for the purpose of winding up the firm’s affairs, the statute cannot begin to run against an action between the partners or their successors in interest for an accounting and settlement so long as the winding up of the firm’s business continues. Riddle v. Whitehill, 135 U. S. 621, 10 S. Ct. 924, 34 U. S. (L. ed.) 282; Hammond v. Hammond, 20 Ga. 556; Prentice v. Elliott, 72 Ga. 154; Bauduc’s Syndics v. Laurent, 2 La. 449; Benoist v. Markey, 25 La. Ann. 59; Bender v. Markle, 37 Mo. App. 234, 244; Patterson, v. Lilly, 90 N. C. 82, 88; Miller v. Harris, 9 Baxt. (Tenn.) 101; Peel v. Giesen, 21 Tex. Civ. App. 334, 51 S. W. 44; Marsteller v. Weaver, 1 Grat. (Va.) 391; Jordan v. Miller, 75 Va. 422, 449; Boggs v. Johnson, 26 W. Va. 821.
“Where by an agreement between the partners the assets of the firm are left with one or more of them after the firm has been dissolved for the purpose of winding up the business, the partnership relation is continued and the statute cannot begin to run against the right of the co-partners to an accounting so long as the trust thus created in the firm property in the hands of the liquidating partner or partners continues and is recognized by all of the partners as such. Causler v. Wharton, 62 Ala. 358; Taylor v. Morrison, 7 Dana (Ky.) 241; Coudrey v. Gilliam, 60 Mo. 86; Dye v. Bowling, 82 Mo. App. 587, 592.
“Therefore until the liquidating partners have succeeded in closing up the firm’s business and the accounts of debtors and creditors of the firm and in adjusting the balances between the partners the statute cannot begin to run against an action between the partners or their representatives in interest for an accounting and settlement. Thomas v. Hurst, 73 Fed. 372; Haynes v. Short, 88 Ala. 562, 7 So. 157; McKaig v. Hebb, 42 Md. 227, 235; Gray v. Green, 142 N. Y. 316, 37 N. E. 124, 40 Am. St. Rep. 596; Miller v. Harris, 9 Baxt. (Tenn.) 101; Roberts v. Nunn (Tex.) 169 S. W. 1086.” (pp. 1108, 1109, 1111.)
It follows that the judgment on the demurrer must be reversed and the cause remanded for further proceedings.
It is so ordered.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order committing defend-, ant for contempt of court and from the judgment fixing the terms under which she might purge herself of the contempt.
The suit in which the contempt proceedings are involved was brought to obtain a decree directing defendant to specifically perform an alleged oral contract whereby she had agreed to make plaintiff the beneficiary in a certain life insurance policy and to make available to plaintiff the cash surrender value thereof. The defend ant insurance company is not a party to the appeal, the controversy being entirely between the plaintiff, Elizabeth Ensch, and the defendant, Mary A. Ensch, plaintiff’s mother-in-law. No oral testimony was' introduced. The narrative culminating in the order of contempt is disclosed by the pleadings, stipulation, decree of specific performance and by a subsequent accusation of contempt and an answer thereto.
The petition in the original suit for specific performance in substance alleged:
Plaintiff, Elizabeth Ensch, is the surviving widow and sole heir of her husband, Leo J. Ensch, Jr., who died intestate January 1, 1940; no administration has been had on his estate; on May 6, 1920, the defendant, Grand Lodge of Ancient Order of United, Workmen, executed and delivered to the defendant, Mary A. Ensch, a twenty payment life plan beneficiary certificate, No. 8463, upon her life in the sum of $2,000, and that Leo J. Ensch, Jr., her son, was named beneficiary therein (copy of policy was attached to the petition); the annual premiums thereon were $74.44 and if the premiums were paid annually for twenty years the policy became a paid-up policy for the sum of $2,000; sometime prior to 1925 the defendant, Mary A. Ensch, was unable to pay the premiums, and her son, Leo, thereafter paid the same until November 29, 1930, at which time plaintiff married Leo, the son; from the date of the marriage plaintiff and Leo paid all premiums on the policy under an oral agreement with defendant, Mary A. Ensch, that the certificate should remain in the joint custody and control of the plaintiff and her husband, or the survivor, and that Mary A. Ensch would not change the beneficiary and would not accept the cash surrender value, or loan value, except with the consent of plaintiff and her husband, and that the1 proceeds should become the property of plaintiff and her husband, or the survivor of them; the certificate was delivered to plaintiff and her husband and they made payments thereon until January 1, 1940, when Leo died; immediately after Leo’s death, Mary A. Ensch orally agreed with plaintiff if plaintiff would retain the certificate and continue to pay the premiums thereon, the defendant would make application to change the name of the beneficiary to the plaintiff or at plaintiff’s option would obtain for her the cash surrender value of the policy and that defendant would so advise the insurance company and execute the necessary papers to consummate the agreement; plaintiff paid the premiums for January and February of 1940; plaintiff also sent a check covering the premiums for the months of March and April of 1940, but the check was returned by the insurer with the advice defendant had paid the premiums for the months of March and April; plaintiff thereupon demanded that defendant make application for plaintiff’s benefit for the cash surrender value which-was then in excess of $1,300; defendant refused to make such application.
Plaintiff prayed for a decree.of specific performance of the oral contract in order that she might be enabled to obtain the cash surrender value of the certificate as of March 1, 1940.
Two days after instituting the instant suit (No. 2189), plaintiff filed another suit (No. 2190) against the defendant, Mary A. Ensch, and the American Mutual Life Insurance Company of Des Moines, Iowa, which suit was upon two policies on the life of the defendant, Mary A. Ensch, with that company, both of such policies being in the face amount of $1,000. In both petitions it was alleged that Leo J. Ensch, Jr., son of Mary A. Ensch, was named as beneficiary in the policies. The same allegations were made in the second suit relative to the payment of premiums by the son and concerning the later agreement with the plaintiff as were contained in the instant suit upon which this appeal is based. General demurrers were filed by the defendant to the petitions in each case and were overruled. No question is now presented concerning the ruling on the demurrers.
To the petition in the instant case (No. 2189) defendant on June 16, 1941, filed an answer in which she in substance alleged:
After the death of defendant’s husband in 1927, she advised her son, Leo J. Ensch, Jr., she could not pay the premiums on the policy and that her son paid them until the date of his death (1940); immediately following her son’s death plaintiff represented she had no money with which to defray her living expenses and the expenses incurred by the death of her husband (Leo) and requested that defendant raise some money for her on the certificates of insurance on defendant’s life in which certificates her son, Leo J. Ensch, Jr., was named beneficiary and that by reason of such representations the defendant signed a letter prepared by plaintiff to raise money on the certificates; when the body of her son arrived in Coffeyville for burial, she was informed that her son carried a life insurance policy in the sum of $1,000 in the Knights of Columbus Council No. 991 of Coffeyville, Kansas, in which she, Mary A. Ensch, was named as beneficiary; upon the request of plaintiff, defendant endorsed the check for $1,000 to the plaintiff.
Defendant’s answer denied she had made the contract alleged by plaintiff. A similar answer was filed in case No. 2190. Plaintiff’s reply, in both cases, admitted the letter pleaded in the answer was signed by defendant, Mary A. Ensch, and that it was mailed to the insurance company but alleged such letter was in compliance with the agreement alleged by plaintiff. In the reply plaintiff also admitted that her husband (Leo) carried the $1,000 Knights of Columbus policy as alleged in the defendant’s answer but stated such policy was paid to plaintiff as the surviving widow of Leo J. Ensch, Jr. As to other matters alleged in the answer the reply contained a general denial.
While these actions were pending and on November 17, 1941, the parties entered into a contract and stipulation for a full and complete settlement of both suits. The stipulation was approved and the court on December 1, 1941, rendered judgment in each of the suits pursuant to the agreed settlement. Defendant obtained the cash surrender value of the two policies involved in the second suit (No. 2190) and paid the amounts into court pursuant to the decree. The money from those policies was disbursed according to the decree and no question concerning that part of the stipulation and decree is involved in the instant appeal. The controversy involves the alleged willful and contemptuous failure of defendant to comply with the decree of specific performance in the first suit.
On October 6, 1942, plaintiff filed an accusation of contempt against the defendant setting forth pertinent provisions of the decree and the alleged violation thereof. The provisions of the decree of December 1, 1941, embodied in the accusation, were as follows:
“1. That the agreement between the parties as above set forth be specifically performed.
“2. That the defendant, Mary A. Ensch, be and she hereby is ordered to make, execute and deliver all instruments in writing which may be necessary so that the plaintiff, Elizabeth Ensch, may be named the sole beneficiary in one certain 20-payment Life Plan, Beneficiary Certificate No. 8463, of the Grand Lodge of Ancient Order of United Workmen of the State of Kansas, upon the life of Mary A. Ensch, in the sum of $2,000 now fully paid up, and deliver the same if and when received to Elizabeth Ensch.
“3. That the name of Elizabeth Ensch, as beneficiary, shall not be changed to any other person by Mary A. Ensch, the insured.
“4. That jurisdiction of this cause is hereby retained by the court for the purpose of seeing that this order is carried out;'’
Paragraph (3) of the stipulation, which was embodied in the decree, reads:
"Second party (defendant) further promises and agrees, that should first party (plaintiff) at any time hereafter, desire the cash loan value on said certificate, then second party will upon receipt of written notice thereof, make, execute and deliver such written instruments as may be necessary to obtain the same, as of that date, and when obtained, then pay the same to party of the first part.”
The accusation further in substance alleged:
It was represented to plaintiff by the defendant acting by and through her attorney, F. B. Hanlon, at the time the, matters and things were settled, compromised and adjusted, and at the time judgment was rendered that certificate No. 8463, was fully paid up and that it was free and clear of all indebtedness and charges of every kind and character and had a cash surrender value in the sum of $1,324; upon the representations so made • plaintiff relied, and parted with her cause of action in the instant case, and also in case No. 2190; later plaintiff discovered that Mary A. Ensch had an indebtedness against said certificate in the sum of $1,332.74 and that the certificate was about to be canceled because said indebtedness exceeded the reserve, and as a matter of fact the certificate had no value at all; the defendant knowingly, willfully and contemptuously failed to pay off said indebtedness so that the policy could be delivered to plaintiff pursuant to the order of the court; at the time the judgment for specific performance was rendered the policy was assigned and pledged to the Ancient Order of United Workmen of the State of Kansas for the loan defendant had obtained thereon and defendant had concealed such assignment and pledge for the purpose of practicing a fraud on the plaintiff; by reason of the failure of the defendant to obey the order of the court the authority of the court with respect to such order had been impaired and plaintiff had been put to inconvenience and expense as follows:
“June 23, 1942, cash paid A. O. U. W. for an assessment on said certificate ..................................................... $5.01
July 9, 1942, cash paid A. O. U. W. to obtain release of the assignment made by Mary A. Ensch................................. 1,332.72”
The accusation further alleged that in addition to the above expenditures plaintiff had been compelled to employ counsel to prosecute the contempt proceedings and to protect the dignity of the court and the ..rights of the plaintiff. The prayer asked that defendant be adjudged guilty of indirect contempt and be punished by fine or imprisonment and be ordered to pay into court for the plaintiff the costs, expenses and damages to which plaintiff had been put in the premises.
In response to a citation to defendant to show cause why she should not be punished for contempt for failure to comply with the decree defendant admitted the provisions of the decree pleaded in the accusation and in substance alleged:
For a long time prior to the filing of the petition plaintiff’s attorney, Dallas W. Knapp, was advised defendant had secured a loan on certificate No. 8463; defendant executed and delivered all necessary instruments to have plaintiff named as sole beneficiary in said certificate and when that was done the policy was delivered to plaintiff or to her attorney, Dallas W. Knapp.
The answer contained a general denial of all other matters contained in the accusation which were not admitted and a specific denial the defendant had advised plaintiff the certificate was free and clear of all encumbrances and that it had a cash surrender value of $1,324.
In view of the allegations contained in the accusation and answer with respect to representations alleged to have been made by the attorneys concerning the loan, counsel who originally represented plaintiff and defendant did not participate in the contempt proceedings. Thereafter, A. R. Lamb represented the plaintiff and Aubrey Neale represented the defendant. When the contempt proceedings came on for hearing the court reexamined the stipulation and decree and concluded the decree should be construed to mean that defendant was required to deliver the certificate fully paid up and free from liens. Pursuant to that interpretation of the decree the court placed upon defendant the burden of showing she had not and was not knowingly and contemptuously violating and disobeying the order and judgment of the court in her failure and refusal to deliver to plaintiff the certificate for $2,000 fully paid up and free from lien. Defendant demurred orally on the ground the court was without jurisdiction to hear or rule on the accusation of contempt. The demurrer was overruled and defendant refused to introduce any testimony. The court made findings and rendered judgment as follows:
“l.-'That in its order dated December 1, 1941, this court retained jurisdiction of this cause for the purpose of seeing that its order was carried out.
.“2. That by reason of the failure of the defendant, Mary A. Ensch, to deliver to plaintiff said Certificate as provided by the order of this court, that plaintiff has been required to pay the total sum of $1,337.75 in order to pay off the lien and assessment thereon so as to keep said policy in force, and that plaintiff is entitled to judgment for said sum against the defendant, Mary A. Ensch.
“3. That Mary A. Ensch is in contempt of. court in that she' knowingly, fraudulently and willfully refuses to obey and comply with the order of this court dated December 1, 1941, whereby she was ordered and directed to turn over and deliver to Elizabeth Ensch one certain 20-payment Life Plan Beneficiary Certificate No. 8463 on the life of Mary A. Ensch issued by said Grand Lodge in the sum of $2,000 fully paid up and free from liens.
“4. That said violation consisted in Mary A. Ensch’s failure and refusal to turn over and deliver said certificate fully paid up and free from liens.
“5. That said violation was done knowingly, willfully and contemptuously.
“It is, therefore, by the court ordered, considered, adjudged and decreed:
“1. That Mary A. Ensch is guilty of contempt. That Mary A. Ensch may purge herself of said contempt by paying to the clerk of this court within thirty days the sum of $1,337.75, with interest at 6% from July 9, 1942, for the benefit) of plaintiff and the costs of this action taxed in the sum of $21.50, and unless said sum be paid that the said Mary A. Ensch be committed to the county jail of Montgomery county, Kansas, until she be discharged according to law.
“2. It is by the court further ordered, adjudged and decreed:
“That plaintiff have and recover judgment against the defendant, Mary A. Ensch, for the sum of $1,337.75, with interest at six percent from July 9, 1942, and for the costs of this action taxed in the sum of $21.50.”
Defendant has appealed from the order overruling her demurrer and from the above findings and judgment. We shall continue to refer to the parties as .plaintiff and defendant. Defendant argues her specifications of error under four headings. Touching the contention the court was without jurisdiction it is sufficient to say the court manifestly had jurisdiction to hear and determine the merits of the accusation. Having such jurisdiction it possessed power and authority to make some order, right or wrong, respecting the contempt charge. In view of the conclusion we have reached with respect to a fundamental question, namely, the proper interpretation of the decree of December 1, 1941, it is unnecessary to decide various other alleged errors.
The court, of course, had jurisdiction to examine and interpret its-former decree. Did the decree require defendant to deliver the certificate to plaintiff free and clear of liens? Neither the stipulation of the parties nor the decree made pursuant thereto expressly so provided. Plaintiff strenuously insists it was the intent of the stipulation and decree to so provide. Defendant just as vigorously argues such was not" the intent of the stipulation or decree. The record discloses the trial court realized, and stated, that whether the certificate was required to be delivered free and clear of liens should have been determined more definitely by the parties in their own stipulation of settlement but that, in view of the terms of the decree agreed upon by the parties, the presumption was the certificate was to be delivered free from liens.
The stipulation of the parties was embodied in and made'a part of the decree. In support of plaintiff’s contention she emphasizes particularly paragraph (3) of the stipulation to which we previously referred in the accusation of contempt. A careful analysis of that paragraph does not, in our opinion, justify the court’s interpretation the certificate was required to be free from a loan. We think the paragraph is clearly open to the interpretation the certificate was not required to be free from liens. It, in substance, merely provided that if the first party (plaintiff) desired the cash loan value on the certificate at any time and made demand on the second party (defendant) for it, in the manner in that paragraph provided, that the second party agreed to execute such instruments as might be necessary to obtain the cash surrender value which the certificate had as of that date; that is, on the date of the demand. The actual cash surrender value of the certificate at any given date would be its total cash surrender value, according- to the contract schedule of the certificate, minus whatever loan might then exist against it. If the parties intended the certificate should be and at all times remain free from loans, they should have so stipulated. They did not do so and the trial court did not so decree.
Plaintiff argues her petition in the suit for specific performance definitely alleged she and defendant had agreed defendant would make her the beneficiary of the policy and that defendant would not accept the cash surrender or loan value without plaintiff’s consent. The petition did so allege but defendant’s answer expressly denied such a contract had ever been made. The parties undertook to settle all their differences by their own agreement in writing and by a decree of court rendered in conformity therewith. It was not the alleged contract which plaintiff pleaded in her action for specific performance but the stipulated agreement in settlement of that suit which the court decreed defendant should perform.
While it is the interpretation of the decree in the instant case which is controlling, it is of interest to notice that the decree in settlement of the other case involving the two certificates with the American Mutual Life Insurance Company expressly provided defendant was required to take such action as was necessary to obtain the total cash withdrawal or loan value upon those two certificates.
In 17 C. J. S., Contempt, § 12, p. 16, the well-established.rule is stated as follows:
“A decree or order will not be expanded by implication in contempt proceedings, beyond the meaning of its terms when read in the light of the issues and the purpose for which the suit was brought, and the facts found must constitute a plain violation of the decree -or order so read. To justify adjudging one guilty of contempt for the alleged violation of an order, the order must be so clearly expressed that when applied to the act complained of it will appear with reasonable certainty that it has been violated. Hence, a party cannot be punished for contempt for failure to obey an order which is contradictory, or for failing to do something not specified in the order, or for doing something not forbidden by the order, nor should a party be punished for disobedience of an order-which is capable of a construction consistent with innocence.” (See cases cited in notes in support of rule.)'
In Macleay Estate Co. v. Bailey, 132 Ore. 350, 285 Pac. 809, it was held:
“To justify court in adjudging one guilty of civil contempt for alleged violation of order, act complained of must be so clearly defined that it will appear with reasonable certainty that order has been violated. . . . (Syl. ¶[ 1.)
“Where language of decree is indefinite, court should not make finding of contempt against defendant for violation thereof until minds are reasonably satisfied that defendant as person of .ordinary intelligence knew that conduct violated language of decree.” ( Syl. 114.)
To the same effect is In re Miller & Harbaugh, 54 F. 2d 612, where the rule was stated thus:
“Thing required to be done by order in civil litigation, to authorize contempt proceeding, must be clearly defined.” (Syl. H 3.)
In North v. Foley, 267 N. Y. S. 572, it was said:
“The rule is well settled that, before one can be punished for contempt in not complying with a direction of the court, the particular or precise thing to be done by the party proceeded against must be clearly and definitely stated.” (p. 574.)
In the North case it was also held:
“Party should not be punished for contempt for disobeying order, if order is capable of construction consistent with innocence.” (Syl. 114.)
We think the trial court erred,when it interpreted the decree to mean the certificate was required to .be free and clear of liens. In any.event, however, the decree was not sufficiently definite and cer tain in that respect to authorize or justify contempt proceedings. It follows the finding and order of contempt cannot stand. The judgment is reversed and the cause remanded with directions to vacate and set aside the finding and order of contempt and the judgment rendered in the contempt- proceedings.
Thiele, J., dissents.
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which the plaintiff sought an injunction to prevent defendant from subjecting his earnings to garnishment proceedings.
The cause was submitted to the trial court on an agreed statement of facts. The defendant Sherman was engaged in the furniture business and sold plaintiff Losier certain goods. Losier became in default on his payments and Sherman placed his account and claim against Losier with a collecting agency in Kansas City, Mo., for collection, and that agency secured a small payment on account and returned the account to Sherman. Thereafter Sherman brought an action in a justice of the peace court in Wyandotte county, Kansas, and obtained a judgment, and then had garnishment process issue to Losier’s employer. Losier is a resident of Kansas, is a married man, the head of a family and needs his earnings for the support and maintenance of his family. The purpose of the present action was to prevent issuance of any further garnishments. The question of law involved was the force and effect of that portion of G. S. 1935, 60-3495, which is hereafter quoted. The trial court was of the opinion that although the judgment creditor had placed the account in the hands of a collection agency, when the account was returned, the exception or proviso hereafter quoted no longer applied and denied the relief sought. The plaintiff appeals.
Prior to the enactment of Laws 1913, chapter 232, the earnings within the preceding three months of a debtor resident within this state, and necessary for the maintenance of his family, were not subject to garnishment by process from the district court (G. S. 1909, §§ 6126, 6127) or by process from the justice of the peace court (G. S. 1909, § 6526) if requisite showings were made by the judgment debtor.
Laws 1913, chapter 232, amended and repealed G. S. 1909, §§ 6126 and 6127, and repealed G. S. 1909, § 6526. Section 1 of the amending act declared earnings of a debtor for his personal services within the preceding three months exempt when necessary for the use of a family supported by his labor, except as provided in section 2 of the act. Section 1 was amended by Laws 1941, chapter 287, and now appears as G. S. 1941 Supp. 60-3494. Section 2, in effect, permitted garnishment of ten percent of earnings and certain court costs. This section sets out the procedure under which such garnishment proceedings may be had, with various limitations and provisions, only one of which need be noticed. It reads:
“And provided still jurther, That if any person, firm or corporation sells or assigns his account to any person or collecting agency, or sends or delivers the same to any collector or collecting agency for collection, then such person, firm or corporation or the assignees of either shall not have nor be entitled to the benefits of this act:” etc.
This section has not been amended and now appears as G. S. 1935, 60-3495.
Although the judgment above mentioned was obtained in the justice court, by reason of G. S. 1935, 61-1501, provisions of the civil code, which are in their nature applicable to proceedings before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices.
Making such application it is clear that in no case may the personal earnings of a debtor under circumstances such as obtain here, be taken in garnishment in excess of ten percent of such earnings, plus not to exceed court costs, and then only in the manner and under the conditions provided in the statute.
Appellant insists the quoted portion of G. S. 1935, 60-3495, means exactly what it says and that appellee having turned his account against appellant over to a collecting agency, may not now have the benefit of the act permitting garnishing of earnings.
Appellee contends that when the account was returned to him he had the same right to institute suit and have proceedings in garnishment as any other person, and the fact the account had been sent to a collection agency was immaterial, and that to place any other construction on the statute would cause it to operate as a bill of attainder. No authority in support of the latter proposition is cited.
A bill of attainder is a legislative act which inflicts punishment without a judicial trial. (See 12 C. J. 1108; 16 C. J. S. 902; 11 Am. Jur. 1175.) The statute under consideration specifies conditions under which a judgment creditor may have garnishment process against certain earnings of the judgment debtor, with a specific proviso that if any person, firm or corporation sends or delivers his account against another to any collector or collection agency for collection, he shall not be entitled to the benefits of the act. This act, which has been in effect for almost thirty years, does not take from any judgment creditor, without trial, any civil rights or remedy, nor does it inflict any penalty or punishment without a trial. When the debt here involved was incurred, the creditor was bound to take notice of the conditions under which he could seek by garnishment process to levy on the earnings of his debtor if the debtor became in default. The statute conferred a right on the creditor of which he could avail himself if he observed its terms and conditions. The choice was his, and it may not be said the proviso in question is in any sense a bill of attainder.
Nor do we agree with appellee that since the account has been returned to the creditor it is immaterial it previously had been sent to a collection agency. To so hold would be to write into the proviso a condition which the legislature did not see fit to include. If such a condition is to be a part of our statutes pertaining to garnishment, it should be placed there by the legislature.
We think that the portion of the statute quoted above means just what it says, and if a creditor sees fit to send or deliver his account to a collector or collecting agency, he shall not be entitled to the benefits of the statute permitting garnishment of a portion of the earnings of his debtor, as provided in the statutes above mentioned.
The judgment of the lower court is reversed and the cause remanded with instructions to render judgment for the plaintiff.
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The opinion of the court was delivered by
Parker, J.:
This action was instituted by the Board of County Commissioners of Wyandotte county to foreclose liens for general taxes subject to foreclosure under chapter 375 of the Laws of 1941, now appearing as G. S. 1941 Supp. 79-2801 et seq.
On the date of the institution of the action the General Securities Corporation, Inc., was the owner of special tax bills issued by the city of Kansas City, Kan., under authority of chapter 133 of the Laws of 1927 and amendments thereto, now appearing as G. S. 1935, 13-1079 et seq., against a number of tracts of real estate to pay the costs of special improvements, such tax bills having been issued by the city on or about December 6,1938.
The general taxes on the tracts of land against which the General Securities Corporation held special tax bills had not been paid and such tracts were included in the tax foreclosure action. In compliance with G. S. 1941 Supp. 79-2802, which requires all persons having or claiming to have any interest in the land sought to be foreclosed to be joined as a party defendant, the corporation was made a defendant in the action and duly served with process. There were many defendants, but of these only the corporation has appealed from the judgment rendered by the trial court. Hereafter in the interest of brevity it will be referred to as the defendant.
Defendant’s answer contained a general denial and the equivalent of a demurrer in that it alleged the petition and each and every cause of action set forth therein failed to state facts sufficient to constitute a cause of action. Inasmuch as the petition was not abstracted we shall regard it as sufficient in form and assume this objection was based on the theory the statute on which the plaintiff relies was unconstitutional, and hence could not be relied on for recovery irrespective of whether the allegations of the petition were properly pleaded.
The answer also set forth the sundry tax bills held by defendant against the various tracts of real estate involved and in substance further alleged: Plaintiff had no right to foreclose defendant’s lien or compel it to do so; the amount of each tax bill was a lien until paid by terms of the statute, the ordinance under which it was issued and the tax bill itself, the terms of all of which whén the tax bill was issued constituted a contract with the purchaser; if plaintiff was permitted to foreclose its lien and exclude defendant’s lien in the event the sale following foreclosure failed to realize sufficient to satisfy both, the foreclosure would deny equality with plaintiff’s lien and result in an impairment of the obligations of defendant’s contract contrary to the United States Constitution, article 1, paragraph 10, and the fourteenth amendment; the amount due under terms of the tax bills was to be paid in ten annual installments, only two of which had accrued; defendant had not exercised its option to declare the whole amount due, and to compel it to foreclose its lien for the entire amount due would impair the rights guaranteed by such constitutional provisions; the law under which tax bills were issued guaranteed to the holder an equality of lien concurrent with the lien of general taxes and superior to all other liens; such lien continued to exist until the entire amount due by the terms of the tax bill was fully paid and there could be no impairment of the contract rights which had vested contrary to the provisions of the constitution referred to, either by selling and conveying property covered by the tax bill free and clear of all liens when the amount due thereunder had not been paid defendant, or by compelling it to foreclose its lien which it had not exercised its option to declare due.
Also included in such answer was an additional paragraph and a prayer for relief which reads as follows:
“Further answering defendant General Securities Corporation, Inc., states that in State v. Wyandotte County Commissioners, (1941) 154 Kan. 222, an action brought to test the constitutionality of chapter 375 of Laws of Kansas, 1941, the validity of said law was drawn in question as violating section 10, article 1, of the constitution of the United States, and as violating the rights guaranteed by the 14th amendment to the constitution of the United States, and it was held that in an action to test the constitutionality of that statute the Supreme Court would assume that the trial court would construe the ‘statute in conformity with the constitution.’ Further answering defendant General Securities Corporation, Inc., states that in Wyandotte County Commissioners v. Adams, (1941) 154 Kan. 233, it was held that the lien for general property taxes and the lien created by the special tax bill were concurrent, of equal force and effect, and that neither one should have precedence over the other; and if plaintiff’s lien should be foreclosed and said property sold in satisfaction thereof, then it should be sold subject to said lien of this defendant; otherwise, the vested contractual rights of this defendant will be impaired and destroyed contrary to the provisions of section 10 of article 1 of the constitution of the United States and contrary to the provisions of the fourteenth amendment to the constitution of the United States.
“Wherefore having fully answered defendant General Securities Corporation, Inc., demands judgment that neither its liens nor the obligations of its contracts be impaired; that if said property be sold to satisfy plaintiff’s lien that said property be sold subject to the lien of this defendant; that if said property be sold and deeds issued therefor by the sheriff, that said deeds convey the property to the purchaser subject to the liens of this defendant for any balance due thereon until paid. . . .”
In the absence of an abstract of the substance of the petition it should be stated the record of the proceedings during the trial shows a colloquy between counsel for the parties clearly evidencing that at no stage of the proceedings was it claimed by plaintiff it could in the instant action foreclose or in any manner impair the lien of special tax bills for future installments, accruing subsequent to the tax year for 1941, the general tax liens for which year were properly included in the present foreclosure action.
On these issues this case was tried to the court which in due time rendered the following judgment:
“It is therefore by the court . . . decreed, that the plaintiff have judgment for the foreclosure of its tax liens against each piece, parcel and tract above mentioned in the sum above specified together with costs as taxed and the same is hereby made a first and prior lien on said property; except as to such property as is hereinbefore found to be subject to the lien of a special tax bill, which lien is concurrent with plaintiff’s lien and the lien of said special tax bills are hereby foreclosed as to all installments due thereon up to and including the installments due in 1941, . . . That a special execution or order of sale shall forthwith issue . . . directed to the sheriff of Wyandotte County, Kansas, commanding him to cause such property to be advertised and sold according to law. That the proceeds of the sheriff’s sale held under and by virtue of such execution or order of sale shall be applied as follows: First, to the payment of the lien of the plaintiff on said property, together with the costs apportioned to said tract or parcel of real estate but if the same be hereinbefore found to be encumbered by a lien of a special tax bill issued by the city of Kansas City, Kansas, then the proceeds of said sale shall be prorated between plaintiff’s lien for general taxes and the concurrent lien of the owners and holders of each such special tax bill, in proportion to the amount of the lien for general taxes and the lien of each special tax bill after deducting the apportioned costs; . . .
“It is further . . . decreed, that upon the sale of the various tracts . . . and the confirmation . . . the sheriff shall execute a good and sufficient deed as provided by law to the purchaser at said sale, which deed shall vest in the purchaser a fee simple title free and clear of any liens held by parties to this proceeding, except the lien for general taxes and the installments upon special tax bills of the city of Kansas City accruing subsequent to the year 1941, and the sheriff’s deed shall recite that ‘This conveyance is subject to general taxes and installments upon special tax bills of the city of Kansas City (if any) accruing subsequent to the year 1941.’ ”
From this judgment the defendant appeals and under proper specification of error submits for our consideration the following questions:
“1. Should Wyandotte County Commissioners v. Adams, 155 Kan. 160, now be overruled since it does not correctly express the intent of the legislature in enacting chapter 133, Laws 1927, and amendments thereto?
“2. Does chapter 375, Laws 1941, when construed to eliminate the lien of appellant’s special tax bills or any installment due or to become due thereon impair the obligations of appellant’s contract, contrary to the provisions of section 10 of article 1 of the constitution of the United States and contrary to and in violation of the 14th amendment to the constitution of the United States?
“3. May the Board of County Commissioners of Wyandotte County foreclose the lien of the appellant’s special tax bills over appellant’s objections?”
We now direct our attention to questions 2 and 3 which can be considered together and will presently dispose of question 1.
Various phases of questions 2 and 3 have heretofore had the attention of this court. In State, ex rel., v. Wyandotte County Comm’rs, 154 Kan. 222, 117 P. 2d 591, it was held that there was no unconstitutionalinfirmity in chapter 375 of the Laws of 1941, now G. S. 1941 Supp. 79-2801 to 79-2809, inclusive.
Wyandotte County Commissioners v. Adams, 154 Kan. 233, 117 P. 2d 760, was an action to foreclose general liens for taxes under the provisions of G. S. 1935, 79-2801, which was first enacted by the legislature of 1901 (Laws 1901, ch. 392). The issue was whether a lien for a tax bill against a certain tract of real estate under authority of chapter 133 of the Laws of 1927 was superior to, concurrent with or subordinate to, the lien for general taxes on such tract and whether the county should sell the property subject to the tax bill, or if the liens for general taxes were found to be concurrent with the tax bill, then, whether when the property was sold the money realized therefrom should be divided pro rata between the other taxing agencies and the holder of the tax bill or the amount of the tax bill be paid in full, out of the proceeds of the sale before the other taxing agencies derived any of the proceeds. It was held the lien of the tax bill was concurrent with the lien for general taxes, that the property should be sold within ninety days from the date of the judgment for the payment of both liens and the proceeds derived from the sale applied to their payment, together with costs, but if the proceeds of the sale were insufficient to discharge such liens then the costs of the action should be first deducted and the balance prorated in proportion to the amount of the respective liens. Also, that after the confirmation of sale all persons claiming any right to the tract of land involved should be foreclosed from ever asserting any right thereto.
Wyandotte County Comm’rs v. Adams, 155 Kan. 160, 123 P. 2d 818, was also an action to foreclose liens for general taxes under the provisions of the same statute. The question presented, it being conceded that Wyandotte County Comm’rs v. Adams, supra, was determinative of the issues therein decided, was whether the liens for accrued installments of special tax bills were extinguished by foreclosure of the liens for general taxes if the proceeds of the resulting sale were not sufficient to satisfy all liens. It was held the liens of the special tax bills maturing in and prior to 1939, such year being the year for which general tax liens were properly included in the action, were extinguished by the judgment and that the sheriff's deed thereunder would pass a fee-simple title free and clear of all such liens and encumbrances.
It should be noted the cases just cited were brought to foreclose liens accruing for general taxes up to and including the year 1939, under authority of G. S. 1935, 79-2801. The issues involved in the instant case, aside from the one to which we shall later refer, are the same as those determined in such cases except for the fact the appellee herein sought to foreclose its liens accruing for general taxes up to and including the year 1941 under authority of chapter 375 of the Laws of 1941, which amended the former statute in certain respects. We have compared the provisions of the amended statute with those of the statute in force and effect at the time of the rendition of the decisions in the cases above referred to. Our comparison discloses the changes to be found in the 1941 enactment are more procedural than substantive, and that there is no basis for a conclusion the procedure for enforcing the liens of general taxes provided for therein is substantially different from that which obtained before its enactment. We have no difficulty in concluding that there is nothing in the amended statute which impairs, hampers or obstructs appellant in the fulfillment of its contract or which takes away any material or substantial rights it acquired on the date of the acquisition of its tax bills under existing statutes, including the special tax bill statute then in force and effect. Nor do we experience any difficulty in deciding there is nothing in the amended statute which would require or justify a reversal of our earlier decisions.
In support of its position that to construe chapter 375 of the Laws of 1941 in such manner that its lien for installments due under and by virtue of its special tax bills is foreclosed in the instant action impairs the obligation of its contract, contrary to the provisions of the constitution, article 1, section 10, and the provisions of the 14th amendment to the constitution, the appellant has again called our attention to many of the authorities cited in support of the similar contention advanced in 154 Kan. 233, supra, and 155 Kan. 160, supra. The persistence with which counsel for appellant has pursued this subject and the efficient manner in which he has presented the issues, together with a full realization of his sincerity in presenting the righteousness of his cause, has impelled us to reexamine the many briefs filed in behalf of the various parties in all these cases, as well as the authorities submitted by him, and many others, which we believe to be determinative of the issues.
The fallacy of appellant's arguments rests, not in the rule of law announced by him but in the application of that rule to the situation confronting us in this appeal.
As authority for its position appellant cites State, ex rel., v. Barker, 4 Kan. 379; Hall v. Wisconsin, 103 U. S. 5, 26 L. Ed. 302, and State, ex rel., v. State Highway Comm., 139 Kan. 391, 92 P. 2d 493, each of which is authority for the rule that where a contract is made under authority of law the right of property arising from the contract cannot be divested by subsequent legislative action. That rule is well grounded and we are in accord with the decisions in those cases. The trouble from appellant's standpoint is that they all have reference to a situation where the legislature attempted to do the very thing the rule announced therein prohibited — the taking away of vested contractual rights by subsequent legislation. Cited also are the following cases: Nelson v. Pitts, 126 Okla. 191, 259 Pac. 533, 53 A. L. R., where a subsequent statute had been enacted providing for the extinguishment of special improvement bond liens; Moore v. Otis, 275 Fed. 747, where the legislature had enacted a statute providing for the apportionment of money received from a tax sale on which there were existing tax liens, not to the payment of the liens but to an entirely different purpose, and providing in fact for a total avoidance of the existing obligation; Brown-Crummer Inv. Co. v. Paulter, 70 F. 2d 184, where the Oklahoma legislature had passed a statute remitting the penalties to be paid by delinquent taxpayers which by the statute authorizing the issuance of paving bonds became a part of the obligation and inured to the benefit of the holders of such bonds. These cases and numerous others which we have examined in our investigation of this subject are all authority for the doctrine that, when contracts for public improvements are made under authority of statutes which permit the issuance of special tax bills to defray the expenses thereof, which are made a lien upon the property benefited, the provisions of the existing statutes and the tax bills issued to secure the payment of the indebtedness enter into and become a part of the contract to such extent the obligations thereof cannot thereafter be impaired or their fulfillment hampered or obstructed by subsequent legislation.
It should be noted the cases just referred to all deal with subse quent legislation impairing the obligation of a contract. Nowhere is there to be found a suggestion that statutes in effect on the date of the execution of such contract or subsequent procedural amendments thereto, come within the constitutional inhibition, nor is it suggested that contractual rights of an obligation — such as a special tax bill — are determined by the provisions of one statute to the exclusion of such others as are in full force and effect on the date it comes into existence.
When the special tax bills involved herein were issued G. S. 1935, 79-2801 et seg., providing for judicial foreclosure of general tax liens and the sale of real estate under its provisions, was in full force and effect. In fact, that statute was enacted long prior to the date of the enactment of chapter 133 of the Laws of 1927, which authorized the execution of tax bills and recognized their validity. Therefore, G. S. 1935, 79-2801, became as much a part of the terms and conditions of the tax bills as the statute which authorized their execution, and when issued such tax bills were subject to the requirements and restrictions of its provisions. Since we have determined that the provisions of chapter 375 of the Laws of 1941, in amending the original statute were procedural, not substantive, and did not take away any material or substantial rights acquired by appellant as the holder of such tax bills, it must follow and we hold that the judgment in foreclosure as rendered by the trial court did not deprive appellant of his property without due process of law or violate any of the provisions of the constitution of the United States. This conclusion also disposes of appellant’s contention the appellee could not foreclose the lien of the special tax bills over its objection. To hold otherwise would disregard the plain language of the statute which provides their lien shall be concurrent with the general tax lien.
We now give our attention to what is in fact the only new question urged by the appellant on this appeal. Our attention is directed to House bill 168, enacted at the 1943 session of the Kansas legislature, which reads:
“An Act declaring the intent and meaning of the legislature in enacting chapter 133 of the Session Laws of 1927, and amendments thereto, with reference to the lien of special tax bills thereby authorized and issued.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. It is hereby declared that in enacting chapter 133 of the Session Laws of 1927, and amendments thereto, now appearing as sections 13-1079 to 13-1088, inclusive, of the General Statutes of 1935, and all amendments thereto, the legislature meant and intended that neither the lien of any special tax bill nor any installment due or to become due thereon should be extinguished by foreclosure, of any general tax lien or any other lien, but that the lien of the special tax bill and all installments thereof should continue to exist until extinguished by payment of the full amount due or until foreclosed by the owner and holder of the special tax bill.
“Sec. 2. This act shall apply to all pending proceedings.
“Sec. 3. ...”
Appellant insists the language above quoted is a legislative interpretation of the earlier acts pertaining to the lien of special tax bills and that it requires us not only to give it force and effect in the instant action in our application of the prior tax bill statutes to transactions which occurred or rights of action which accrued prior to its passage, but also to overturn the interpretation already given by us to such statutes in Wyandotte County Comm’rs v. Adams, 155 Kan. 160, supra. Our consideration of this question convinces us that appellant’s contention is not sound.
House bill 168, for the moment assuming but not conceding its validity, purports to be a statute expository or declaratory in chartacter.
In 12 C. J. 811 to 813, section 247, the general rule is stated as follows:
“A declaratory or expository statute is one that is passed in order to put an end to a doubt as to what is the common law or as to the meaning of another statute. Such statutes are without the sphere of constitutional legislative action insofar as any retrospective operation is concerned, and they can neither overturn an interpretation already given by the courts, nor bind the latter, with respect to the application of the original statutes, to transactions which occurred or rights of action which accrued prior to the passage of the declaratory act. . . .
“A statute which changes the common law or modifies an existing statute is not invalidated by the fact that it assumes the law to have been in the past what it is now declared to be for the future. Some authorities go even further and hold that a declaratory statute, although retrospectively void, is valid as to future case^. Other authorities, however, hold that a legislative body cannot compel the courts to adopt a particular construction of a law which the legislature permits to remain in force; and that unless the declaratory act constitutes an express or implied amendment of the original act, it will not be binding on the courts, even though it is entirely prospective in its operation and expressly confined to future cases. The substance and not the mere form of the enactment determines,whether the statute is declaratory or amendatory within this rule.”
In 16 C. J. S'. 300, section 112, which deals with the force and effect of declaratory statutes generally, we find the following statement:
“However, such statutes are without the sphere of constitutional legislative action insofar as any retrospective operation is concerned; and they can neither overturn an interpretation already given by the courts, nor bind the latter, with respect to the application of the original statutes to transactions .which occurred or rights of action which accrued prior to the passage of the declaratory act.”
To the same effect is 1 Cooley’s Constitutional Limitations, 8th ed., 190, wherein is also discussed the validity of declaratory statutes with respect to their retroactive effect. It reads;
“But the legislative action cannot be made to retroact upon past controversiés, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a co.urt of review to which parties might appeal when dissatisfied with the rulings of the courts.”
See, also, 11 Am. Jur. 914, section 209, dealing with the same subject, stating the rule:
“The legislatures of the several states have occasionally attempted to incorporate in statutes statements of fact or conclusions of law, and the question may arise as to whether this amounts to an improper assumption of judicial power. The legislature has power to prescribe legal definitions of its own language, and such a definition is binding on the courts. The legislature in some jurisdictions also has the power to declare by subsequent statute the construction of previous statutes, so as to bind the courts in reference' to all transactions occurring after the passage of the law, and thereby enunciate the rule to govern the courts in transactions that are past, provided no constitutional rights of any parties are prejudiced. This is an invasion of the judicial power, however, even in such jurisdictions, if it purports to affect pending cases. The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts.”
The same rule is stated in 6 R. C. L. 161, section 161.
See, also, Clayton v. Schultz, 4 Cal. (2d) 425, wherein it was held:
“While a declaratory statute cannot bind the courts with respect to application of the original statute to transactions which occurred, or rights of action which accrued, prior to passage of the declaratory act, in the absence of intervening rights an act declaratory of a former one has the same effect as if embodied in the original act at the time of its passage.” (Syl. If 5.)
Also, see Koshkonong v. Burton, 104 U. S. 668, 679, 26 L. Ed. 886, where it was held:
“If interest upon interest, whether arising upon express or implied agreement, is allowed by the local law, at the time of the contract, that right cannot be impaired by a subsequent legislative' declaration as to what was, in the judgment of that department, the true intent and meaning of the statutes. prescribing and limiting the rate of interest, in force when the contract was made. The utmost effect to be given to such legislative declaration is to regard it as an alteration of the existing law in its application to future transactions.” (Syl. If3.)
Many other authorities following the rule above stated might be cited, but we feel those we have referred to are more than sufficient to substantiate our announced conclusion that the enactment of House bill 168, even if its validity should be conceded, does not affect the rights of the litigants in the instant action, and under no' circumstances would justify the overruling of prior decisions of this court on questions similar to those herein involved.
As far as it involves the questions raised by appellant in this appeal, we might end our deliberations here and affirm the judgment of the trial court on the basis of the conclusions heretofore announced. However desirable that action may seem, we cannot yield to its inducements for it is our obligation to dispose of- all issues properly raised by the parties. Included in such issues is the contention of appellee, directly raised in its brief, that House bill 168 is not only unconstitutional because its provisions amount to an encroachment upon the judicial powers of the court by the legislature but also because it violates article 2, section 16 of the state constitution. We are obliged, therefore, to here dispose of such questions before concluding this opinion.
With respect to encroachment by the legislature on judicial powers it should be noted article 3, section 1 of the constitution reads:
“The judicial power of this state shall be vested in a supreme court, district court, . . .”
In 11 Am. Jur. 908, section 206, it is said:
“The legislature cannot ordinarily diminish, enlarge, or interfere with the jurisdiction of a court as defined by the Constitution. . . .
“Thei rule is well settled that the judicial power cannot be taken away by legislative action. Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional. ... It has no power to direct the judiciary in the interpretation of existing statutes.”
See, also, 16 C. J. S. 300, 303, 424, sections 112, 115, 144, wherein it is stated:
“While the legislature cannot direct the judiciary in the interpretation of existing statutes, and statutes granting no new rights but merely construing former enactments are void as an encroachment on the judiciary, it has been held that declaratory statutes are entitled to respectful consideration by the courts to the extent that they constitute legislative constructions of doubtful phraseology, even though their interpretation may not be binding, and some authorities hold that a declaratory statute, although retrospectively void, is valid as to future cases, and that, in the absence of intervening rights, an act declaratory of a former one has the same effect as if embodied in the original act at the time of its passage, but other authorities hold that a legislative body cannot compel the courts to adopt'a particular construction of a law which the legislature permits' to remain in force and that unless the declaratory act constitutes an express or implied amendment of the original act, it will not be binding on the courts, even though it is entirely prospective in its operation and expressly confined to future cases.” (§ 112.)
“The determination of the true state and meaning of the existing law is not a legislative function, but is a judicial function, as shown infra, § 144, and the legislature cannot declare what the law was in the past.” (§ 115.)
“The judiciary or judicial department of government is that branch thereof which is intended to interpret, construe, and apply the law, or that department of government which is charged with the declaration of what the law is, and its construction, so far as it is written law.
“The question as to what particular powers are essentially judicial is to be solved by ascertaining the definition and scope of such powers at the time the constitution in question was adopted, but in accordance with the very definition of the judiciary or judicial department as the one that interprets, construes, declares, and applies the law, as stated previously in this section, the primary functions of the judiciary are to declare what the law is and to determine the rights of parties conformably thereto.....” (§ 144.)
To the same effect is 12 C. J. 812, section 247, which reads:
“. . . Statutes granting no new rights but,merely construing former enactments are void as an encroachment on the judiciary . . .”
See, also, Cooley’s Constitutional Limitations, 8th ed., 183, 184, 191, where the author, in dealing with the powers possessed by the legislative and judicial branches of the state, lays down the following rule:
“The legislative power we understand to be the authority, under the constitution, to make laws and to alter and repeal them . . .” (p. 183.)
“On the other hand, to adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department.” (p. 184.)
“As the legislature cannot set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the legislature permits to remain in force. ‘To declare what the law is, or has been is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles of all our governments is, that the legislative power shall be separate from the judicial.’ If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to the judicial, but according to the legislative judgment. . . .” (p. 191.) '
Likewise, in 6 R. C. L. 161, section 161, it is said:
“. . . The legislature in some jurisdictions also has the power to declare by subsequent statute the construction of previous statutes, so as to bind the courts in reference to all transactions occurring after the passage of the law, and thereby enunciate the rule to govern the courts in transactions that are past, provided no constitutional rights of any parties are prejudiced; though this would be an invasion of the judicial power, if it purported to affect pending eases. . .
We have been cited to, and our investigation discloses, no Kansas cases wherein the validity of a purported expository or declaratory statute, similar to House bill 168, swpra, had been directly challenged on the express ground it encroaches upon the power conferred upon the judicial branch of our state government by the constitution. However, our investigation discloses this question has been raised in other states, and that where it has been given consideration such enactments have been held to be unconstitutional.
In Lincoln Building and Saving Association v. Graham, 7 Neb. 173, it was held:
“An expository statute, which is substantially in the nature of a mandate to the courts to construe and apply a former law, not according to judicial, but according to legislative judgment, is inoperative, and cannot control the courts in interpreting the law and declaring what it is.” (Syl. ¶ 3.)
Likewise, in Macartney v. Shipherd, 60 Ore. 133, 117 Pac. 814, it was held:
“Under section 1, article III, of the constitution of Oregon, providing for the distribution of governmental powers and prohibiting one branch from exercising the functions of the other, Act Feb. 21, 1911 (Laws 1911, p. 195), which, after reciting that certain sections of the code had created doubts as to whether the time to take an appeal ran from the date of the entry of the judgment or from the entry of the order granting or denying a new trial, provided that appeals filed within six months after the denial of a motion for new trial should be validated, is unconstitutional, as an encroachment on judicial powers, in that if grants no new right of appeal, but construes former enactments.” (Syl. If 5.)
To the same effect is Lindsay v. United States Savings & Loan Association et al., 120 Ala. 156, 168, and Caylor v. State, 219 Ala. 12, 14, 121 So. 12.
The same rule is followed in Walker v. United States, 83 F. 2d 103, 106, and United States v. Salberg, 287 Fed. 208, 213.
That an act which amounts to encroachment of legislative upon judicial power is unconstitutional and void was determined by this court in Felix v. Wallace County Comm’rs, 62 Kan. 832, 62 Pac. 667, and in Railway Co. v. Simonson, 64 Kan. 802, 807, 68 Pac. 653.
While, as has been stated, House bill 168, supra, purports to be a statute expository or declaratory in character, a critical examination of its provisions discloses it to be more than that as such terms are commonly considered. Its provisions purport to interpret former laws, and are substantially in the nature of a mandate to the courts to construe and apply such former laws — as to all pending proceedings — not according to judicial, but according to legislative judgment. We believe this requirement, in the light of the authorities here cited, is clearly an invasion of the judicial power by the legislature.
We now briefly direct our attention to appellant’s contention the act in question fails to meet the requirements of article 2, section 16 of the state constitution, which reads:
"No bill shall contain more than one subject, which shall be. clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
It should be noted that House bill 168, supra, neither expressly amends nor expressly repeals any existing statute. However, if construed to be valid it has that effect, for G. S. 1941 Supp. 13-1079 provides: "Said special tax bills when so issued shall be a lien upon the property . . . until paid, which lien shall be superior to all other liens excepting the lien for general taxes, and shall be concurrent with such general tax lien; . . .” The new enactment makes the tax bill lien superior to, not concurrent with, the general tax lien, and impliedly repeals G. S. 1941 Supp. 79-2801, providing for judicial foreclosure and sale of real estate by the county for taxes, also G. S. 1941 Supp. 79-2804, providing the deed executed pursuant to such foreclosure sale shall vest in the purchaser as against all persons, parties, to such proceedings, a fee-simple title in the lands purchased by him. Moreover, it attempts to require the court, without changing or amending the old tax bill law, in any way, to place an entirely different construction upon the language to be found therein. As an amendment to an existing statute it wholly fails to meet the constitutional requirement.
That the provisions of article 2, section 16 of the state constitution which reads: . . No law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed,” is mandatory, was determined by this court in Hicks v. Davis, 97 Kan. 662, 156 Pac. 774, and that an act of the legislature which attempts to amend or repeal a prior act must conform to the procedure prescribed by this provision of the constitution was held in Hicks v. Davis, supra; Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030, and in Atchison, T. & S. F. Rly. Co. v. Board of Education, 123 Kan. 378, 255 Pac. 60.
Appellant calls our attention to the fact that legislation similar to House bill 168 has been enacted and cites chapter 202 of the Laws of 1923, wherein it was declared to have been the intention of the legislature in enacting chapter 255 of the Laws of 1921, and chapter 200 of the Laws of 1923, “to include by the terms therein used any person, otherwise qualified, who served honorably but died before receiving a discharge.” Quite true. But we fail to find any decision wherein the constitutional validity of this enactment was specifically raised. It was not questioned in Richardson v. Soldiers’ Compensation Board, 150 Kan. 343, 346, 192 Pac. 2d 114, which appellant cites and wherein the writer of that opinion set forth a résumé of the various legislative enactments affecting the soldiers' compensation act. Nor was its constitutionality passed upon in State, ex rel., v. Davis, 113 Kan. 584, 217 Pac. 903, where the validity of the several acts, including the one referred to by appellant, authorizing the payment of soldiers’ compensation, was questioned in that proceeding, for in announcing its decision this court said: .
“The validity of the laws passed on this subject is challenged by the plaintiff, but no defect is pointed out, and the court is unable to find any. The court is asked to search the law and proceedings for any possible defect which may exist, and to point it out. That the courts declines to do.” (p. 587.)
Courts are loath to hold enactments of the legislature to be unconstitutional and this court has repeatedly held that there is time enough for it to pass upon the validity of a statute in that regard when the question is raised by someone who is hurt by it. No doubt, if, as in the instant cáse, any constitutional infirmity in the statute referred to by appellant had been properly presented to this court or specifically pointed out, that issue would have be.en determined in line with the authorities here cited. Moreover, the fact that an unconstitutional statute has been enacted by legislative authority and remains in the statute book indefinitely without challenge, in no sense imparts legality to a subsequently enacted statute possessing an infirmity similar in character, and it becomes the duty 'of this court to pass upon the constitutionality of the subsequent enactment if, as and when, that question is properly presented for determination.
In accordance with the conclusions herein announced the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiffs brought this action for the alleged wrongful death of their daughter, June Richards. The trial court sustained a demurrer to their evidence and they have appealed.
Defendant’s railroad runs north and south through the city of McPherson and is intersected at right angles by Skancke street, an east-and-west street. At this intersection defendant has four tracks. Counting from the west, and giving distances from center to center, these are: First, the stock track; second, east 34% feet is the “long” track; third, east 13% feet is the “passing” track; fourth, east 13% feet is the main-line track. At the time in question a boxcar was standing on the first track 29 feet south of Skancke street, and on the second track, beginning 75 feet south of Skancke street, there were three or more oil tank cars. There were no cars standing on the third or fourth tracks. One standing in the center of the first track, looking southeast, could see a train approaching from the south on the fourth track 135 feet south of Skancke street; and if standing in the center or on east rail of the second track, looking south, could see a train approaching on the fourth track for a distance of approximately 1,000 feet. South of Skancke street there is no street crossing the railroad until Avenue A, four blocks south. The depot is a block and a half or two blocks north of Skancke street. Skancke street is a dirt street which once had a little gravel on it. The traveled portion is about 16 feet wide, and 16-foot planks are laid on each side of the rails of the several tracks, longitudinally.
Plaintiffs had lived for a -year and a half a block east and a block south of the intersection. They had two daughters — June, 18, and Cleo, 16. The girls drove the family car and frequently drove across this intersection.
Merle Hungerford, 17 years of age, lived at Canton, and had permission to drive his father’s car, a 1930 model A Ford two-door sedan. He and Wendell McNees, a year younger, who lived in Canton, had a date with the Richards girls for Sunday evening June 28, 1942. That afternoon they put mud guards on the car and tightened the brakes. The engine and brakes were in good working order. A V-shaped piece was broken out of the righthand front glass window, the left -front window appears to have been broken out, the windshield wipers were not working, the muffler hood was loose, and the car was rather noisy. It had rained that afternoon and showers occurred intermittently later. The boys reached the Richards’ home about six o’clock and the four young people drove about town, Cleo riding in the front seat with Hunger-ford, who was driving, and McNees riding in the rear seat with June. While riding about town there came a shower of rain and they concluded to drive back to the Richards’ home. Because rain was coming in the front seat, Cleo Richards got out of the front seat and into the rear seat and sat on the lap of her sister June. While riding in this manner across defendant’s tracks on Skancke street their car was struck by a passenger train coming from the south on the fourth track, with the result that June Richards was killed.
The testimony of the surviving members of the party was to this effect: Merle Hungerford testified he had been driving a car for four years and this one for six months; he had traveled over the crossing frequently, was familiar with it, knew there were four tracks, and that the east one was the main-line track. He was traveling at 15 to 20 miles per hour, and may have slowed to about 13 or 14 miles per hour. His judgment was that he could have stopped his car in 20 feet. When he drove onto the first track he looked to the south and saw no train coming on the main track. Some rain was falling and drops clung to the windshield. He then looked to the north, and while he was looking to the north someone in the back seat screamed. He then looked to the south and a train on the east track was approaching about 45 feet away. “I tried to beat it on across.” The train struck his car on the right side near or a little in front of the rear wheel. He testified that had he looked to the south as he crossed the second track he could have seen the train in time to stop.
Wendell McNees testified that as they approached the intersection “I looked to the south and I didn’t see any trains and looked to the north and I saw no trains and one of the girls screamed and hollered ‘There is • a train.’ ” When he first looked to the south “it was- maybe just before we got to the first track there.” We ceased looking to the south “when maybe the back wheels were just going over the track.” When he looked back to the south the car was on the second track from the east, traveling about 15 miles per hour, and the train was then about 60 feet away. Had he looked to the south as he was crossing the second track he could have seen a train coming from the south on the main track, “maybe a thousand feet.”
Cleo Richards testified that she remembered looking and listening for a train. She looked south when they were going across the first track. Her reason for looking to the south was that trains coming from the south come in faster than the ones from the north. They are just leaving the depot and are not quite so fast. When she saw no train coming from the south she looked directly ahead of her to see whether there was a car coming from the east, because it was raining and it was pretty hard to see. She looked to the south again when they were between the second and third tracks, and she said, “Be careful, there is a train.” She thinks phe did not scream. The next thing she remembered was being in the hospital.
Other witnesses called by plaintiffs, who lived near by, saw the train, heard it whistle, and heard the exhaust from the engine for several blocks before it reached Skancke street.
In the petition plaintiffs pleaded a city ordinance prohibiting a steam railroad from operating a train into or through the city at a speed in excess of 20 miles per hour and providing penalties for its violation in the way of fines. Several witnesses testified to the speed of the train, giving their judgment that the speed was 30 or 35 or 40 miles per hour.
Plaintiffs allege defendant was negligent: (a) In operating its train at a speed in excess' of the city ordinance. This will be treated later, (b) In operating the train at an excessive speed when the rain was falling and when the view of persons coming from the west on Skancke street was limited by the boxcars on the switch track, (c) By leaving cars on the switch track close to the street, which impaired the view of travelers of the approaching train, (d) Failure to maintain electrical or mechanical warning signs at the crossing, (e) That defendant neglected to sound any whistle or ring a bell when the train was approaching. The evidence did not support this ground of negligence.
No facts were alleged and there was no evidence tending to show that defendant was negligent for failing to maintain electrical or other mechanical warning signs at this crossing. (See G. S. 1935, -68-414.) The fact defendant had ^ome cars standing on the switch track did not constitute negligence of defendant. That is one purpose of having such tracks. Neither does the fact that rain was falling impute negligence to defendant.
There is testimony in the case from which the jury might have found that the speed of the train was 35 miles per hour. This is conceded. It is the only thing worthy of discussion tending to show negligence of defendant. Arguing this point, counsel for appellants contents himself by citing Griffith v. Atchison, T. & S. F. Rly. Co., 132 Kan. 282, 295 Pac. 687, where a breach of the city ordinance was shown, but liability for damages denied. The pertinent syllabus reads:
“Rule followed that while the breach of a city ordinance by a railway company operating within its corporate limits is negligence per se, yet no civil liability in damages can be imposed on the railway company therefor unless the breach was the proximate cause of the loss or injury upon which the claim for damages is predicated.”
In the opinion (p. 286) the court said:
“While the breach of a city ordinance by a railway company is negligence per se, liability in damages cannot be predicated on its violation unless the breach of the ordinance is the proximate cause of the injury and damage, or substantially contributes thereto. (Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 Pac. 397; Cooper v. Railway Co., 117 Kan. 703, 232 Pac. 1024; Whitcomb v. Atchison, T & S. F. Rly. Co., 128 Kan. 749, 751, 280 Pac. 900.)”
It is difficult to see how the speed of the train, considered by itself, could have any direct bearing upon the collision here involved. Certainly, the speed of the car in which the young people were riding and the speed of the train would have to be considered in their relation to each other. If either one of them, and one only, had been going much faster or much slower than it was the collision would not have occurred. So, the train might have been moving 60 or 70 miles per hour, violating the ordinance to a greater extent than it was, and been entirely past the intersection before the car reached it, and no collision would have occurred. Or, it might have started earlier and passed the intersection first, at not more than 20 miles per hour; or started later and not have reached it. The speed of the car might have been faster or slower, or it might have started sooner or later than it did, and the collision would not have occurred, even though the speed of the train would have been what the evidence here shows. So, the speed of the train in excess of the ordinance is not sufficient to establish liability. In Vance v. Union Pac. Rld. Co., 133 Kan. 11, 298 Pac. 764, it was held:
“To entitle one to damages caused by a railroad train running through a city at a higher rate of speed than is prescribed by a city ordinance, he must show that the violation was the proximate cause of the injury and loss.”
And in Williams v. Electric Railroad Co., 102 Kan. 268, 166 Pac. 508, the rule was thus stated:
“A breach of a speed ordinance of a city by an interurban trolley car is negligence per se; but to subject the owner of the trolley car to liability for the violation of the city ordinance, in a damage suit by a private litigant, it must appear that the disobedience of the ordinance caused or aggravated the damages.”
This last case is cited, with many others in support of the text, in 52 C. J. 276, where it is said:
“. . . a railroad company is not liable on the ground that the train was operated at an unlawful, or otherwise excessive, speed where such operation is not the proximate cause of the injury for which recovery is sought, . . .”
We think it clear the proximate cause of the collision in this case was the negligence of the driver of the car and those riding with him. The three survivors of the casualty were the only witnesses who testified as to how the car was operated on the crossing and what attention was given to approaching trains. The driver testified that he crossed the intersection at 15 to 20 miles per hour and may have slowed a little; that he thinks he could have stopped his car in 20 feet; that he looked first to the south, and seeing no train, looked to the north, and did not look to the south again until the train on the east track was within 45 feet of the crossing (in a statement made to a railroad representative he had placed the distance at 20 feet); that he then tried “to beat it on accross.” He said if- he had looked to the south when he had crossed the second track he could have seen the train approaching, but he did not look.
McNees’ testimony was that he looked first to the south; seeing no train, looked to the north, and did not look again to the south until they were practically upon the fourth track. Just why these two men could not have divided their, responsibility and one of them looked to the north and the other to the south continuously is not disclosed. We take their evidence as they gave it.
Cleo Richards seemed more alert than either of the young men. She looked to the south because she knew that the trains from the south usually crossed the intersection at greater speed than those from the north. The evidence indicates the young men knew that also. After first looking to the south she realized the likelihood that there might be an automobile approaching on the narrow street, and from the rear seat looked as best she could through the rain-spattered windshield to see if a car were approaching. Being satisfied there was none, she turned her attention again to the south. Seeing the train' coming she advised the other occupants of the car .of that fact. In 52 C. J. 320, the pertinent rule is stated as follows:
“Where a traveler about to enter upon a crossing has the opportunity, by exercising his sense of hearing or sight, to discover an approaching train in time to stop in a place of safety, it is his duty under such circumstances to look and listen, and if he fails to do so, or fails or neglects, as he approaches the crossing, to see or discover an approaching train dangerously near the crossing which, the evidence shows, he could or must have discovered had he looked or listened, such failure to look or listen or to look and listen or to heed what he sees or hears ordinarily is held to constitute contributory negligence as matter of law, although the circumstances of the particular case may be such as to make it a question which should be submitted to the determination of the jury.”
In McCune v. Thompson, 147 Kan. 57, 59, 75 P. 2d 294, it was said:
“It has long been settled law in this state, as throughout this country generally, that a railway track is itself a warning of danger. (Bazzell v. Atchison, T. & S. F. Rly. Co., 134 Kan. 272, 5 P. 2d 804.) A person about to cross a railway track must first assure himself that no train is approaching and that it is safe to cross. If he attempts to cross without first making sure that he can safely do so, he is guilty of negligence, and he will not be permitted to penalize the railway company if an accident occurs. Our own reports are laden with decisions to this effect. The older cases were collated by the late Mr. Justice Marshall in Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023, and Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742.” (See, also, many other of our cases cited later in the opinion.)
Normally, what constitutes the proximate cause of the injury is a jury question, but where the facts are agreed upon, or not in dispute, it becomes a question of law. See Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708, and authorities there cited. See, also, 45 C. J. 1320.
Quite a little is said in the briefs of counsel about the contributory negligence of June Richards. However, if we are correct, as we think we are, in holding, as we do, that the proximate cause of the collision was the negligence of the driver of the car in which she was riding and others, aside from herself, whose duty it was to keep a lookout, the question of whether she, personally, was guilty of contributory negligence becomes immaterial.
We find no error in the ruling of the trial court. Its judgment, therefore, is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment sustaining a demurrer to plaintiff’s evidence in an action for damages for the alleged conversion of wheat and barley which were the crops harvested from- a half section of Gove county land in 1942.
Plaintiff’s petition alleged that he was the owner of the property and that defendants had converted it to their own use.
One defendant, Martin Weissbeck, answered with a general denial, disclaimed any interest in the subject matter, and prayed to be protected against costs.
The other defendant, Pius Weissbeck,- answered with a general denial, and alleged that he planted the wheat and barley crops harvested in 1942, and that he was the owner of them and entitled thereto and to the proceeds thereof. Whatever other matters were alleged in the pleadings or set out as exhibits which may require attention will be noted as we proceed.
A jury was called to try the issues. Oral testimony was offered by plaintiff and a considerable amount of documentary evidence was introduced. By the time plaintiff rested his cause the controlling facts had been developed without material dispute. Defendant’s demurrer to plaintiff’s evidence was sustained, and the cause is brought here to test the propriety of that ruling.
Summarizing the pertinent facts, it appears that the land on which the wheat and barley crops were grown belonged to one P. A. Denning, an insane person, resident of Ellis county, for whose estate one Albert Schlyer was guardian by appointment of the probate court of Ellis county. The plaintiff John Wolf was the tenant of the land under a two-years’ lease which was to expire on August 1, 1942, but that lease also contained a clause which made its duration subject to a sale of the premises.
On or about September 22, 1941, Albert Schlyer, guardian of the land owner, and Pius Weissbeck entered into a written contract for the sale of the land to Weissbeck, at an agreed price of $2,300, of which sum $250 was paid down and the balance was to be paid on specified terms. This contract stated specifically that it was being made subject to the approval of the probate court of Ellis county, and that Schlyer, the guardian, should proceed with diligence to petition that court for authority to sell the land to Weiss-beck as the contract provided. Schlyer the guardian, did so, and the probate court set a hearing for October 17, 1941. The proper notice was given and due proof of service and of publication was filed.
In the late evening of the same day the contract was made, Weissbeck with two companions called on the tenant John Wolf and informed Kim that he had bought the land and desired to plant the wheat crop. After some talk Weissbeck and Wolf made a written agreement whereby Wolf agreed to give full possession, upon Weissbeck’s obligation to pay Wolf for labor performed, and repairs to fences and improvements, viz.:
35 acres summer fallow, $2.00 per acre.................. $70.00
12 acres plowed, $1.00 per acre......................... 12.00
50 acres one-wayed, 50c per acre........................ 25.00
94 hedge posts set into the fence, 15c post............... 14.10
Repairs put onto windmill..............,.............. 2.00
Total................................................. $123.10
This agreement further provided that $53 of the foregoing amount should be satisfied by Wolf having the use of the pasture on the land from October, 1941, to September 30, 1942, and that Weisbeck should pay to Wolf the balance in cash “whenever title is acceptable and deed is delivered in connection with the purchase of the above-described land.”
Pursuant to this agreement between Weissbeck and Wolf, the latter vacated the premises and Weissbeck took possession, planted 97 acres of fall wheat, and planted a crop of barley in the following spring; and it is the crops so grown and harvested in 1942 to which plaintiff laid claim in this lawsuit.
On October 17, 1941, the probate court of Ellis county approved the contract of sale between Schlyer, guardian, and Weissbeck. However, Schlyer, guardian, did not consummate the contract he had made with Weissbeck and which the probate court had thus sanctioned — apparently for the reason that a third party had made a much higher offer for the property. Writing to Wolf the probate judge explained briefly, “I only wish you to know that . . . there was some misunderstanding about the sale of the property. It was Schlyer who withdrew the petition.”
Along in November, 1941, Wolf learned that Weissbeck had not bought the land, and sometime later he brought some sort of injunction suit against Weissbeck which came to naught. On February 25, 1942, Schyler, guardian, notified Weissbeck to vacate the premises, notified him not to plant any spring crop, com, or fodder on the premises, and—
“You are further notified that I do not recognize you as tenant of said real estate, but if for any reason or cause you should have or it should be determined that you have any rights as tenant or otherwise, such rights, claims or tenancy is hereby terminated, and that unless you quit, vacate and leave said premises on or before the 1st day of August, 191$, an action will be brought against you to recover possession of said premises, and for all damages suffered whether to said premises, or for the detention thereof or otherwise. . . . (Our italics.)
(Signed) P. A. Denning,
(Signed) Albert Schlyer, Guardian,
Guardian of P. A. Denning, owner of the above-described land.”
About that time, date not shown, Weissbeck filed a petition in the probate court reciting the pertinent facts, including a reminder of the probate court’s order of October 17, 1941, authorizing the guardian to consummate the contract of September 22, 1941, for the sale of the property to Weissbeck, and praying for a hearing on the matter and for an order to the guardian directing him to complete the sale to Weissbeck.
The probate court ordered the matter set down for hearing on April 15, 1942, at which time the guardian moved to dismiss Weiss- beck’s petition. This motion was sustained. Sometime later the probate court sanctioned a sale of the property to a third party for $5,100, which, perhaps should be regarded as the explanation of the guardian’s failure to carry out his contract with Weissbeck, and a sufficient justification for the probate court’s refusal to order him to do so. The paramount duty of the guardian and of the probate court was to protect the estate of its unfortunate owner, ward of that court; and the guardian and the court were privileged to change their minds. Even courts of general jurisdiction frequently exercise that prerogative. (Burnham v. Burnham, 120 Kan. 90, 93, 242 Pac. 124.)
' Weissbeck clung to his possession of the property until he had harvested the crops of 1942, and this action in replevin was brought by Wolf to obtain possession of those crops or their value.
In sustaining the demurrer to plaintiff’s evidence which in effect denied him a recovery of the wheat and barley crops for the season of 1942 planted and harvested by Weissbeck on any theory of replevin, the trial court rendered an informal opinion which, in part, reads:
“A very similar case to the one before us now, is the case of Rathbone v. Boyd, 30 Kan. 485, wherein the court said:
“ ‘At common law, a person who had been ousted from land might, after recovery and reentry, maintain his action of trespass for the mesne profits and for waste; for the reason that after the reentry, the law supposed he had always been seized, and the acts of the defendant were held to be a continuous trespass upon the rightful possession of the actual owner. In [that] case, the plaintiff did obtain an order for the restitution of the premises until August 15, 1881, and Shrock did not actually relinquish possession until August 24, 1881. Therefore the crops grown and actually harvested by Shrock, while in possession of the land, are to be regarded as his own; and while the plaintiff might have recovered for the use and occupation of the premises, he could not maintain an action of replevin for the crops so grown and actually harvested by Shrock.’ . . .
“In State v. Salisberry, 49 Kan. 160, the same doctrine is enunciated. Under the doctrine of replevin, that isn’t the proper remedy, . . .
“Also [see] 57 A. L. R. 578, and to the same' effect is 45 Am. St. Reports, 53, and 17 C. J. 381 and 382, which follow the same doctrine.
“Now, it seems to the court it is incumbent in order for the plaintiff to make a cause of action, that he prove each and all of the elements of a conversion. The evidence shows that the defendants or some one of them was actually given possession by the plaintiff. That is shown positively by the plaintiff’s own testimony, that he gave the defendants possession, which, the court thinks, brings the case under the law that I have just been reading.”
Counsel for appellant contends that if the trial court’s ruling and judgment were correct a great injustice has been brought about by fraud and misrepresentation which cannot be remedied. But the record contains no evidence of fraud nor of willful misrepresentation. Weissbeck did have a contract to purchase the land when he called on Wolf to negotiate with him for the possession of the farm. That was the 22d day'of September, at the season of the year when wheat planting is always a matter of immediate urgency. Weissbeck did not willfully misrepresent to Wolf the fact that he had purchased the farm. He believed in good faith that his contract of purchase would be carried out by Schlyer the guardian — that the sanction of the probate court would be promptly sought, and that the property would be conveyed to him. Indeed the written contract between Wolf and Weissbeck for the immediate possession of the land fairly apprised Wolf that the transaction for the purchase of the land had not on that date been completed, particularly where it recited that—
“It is mutually agreed between the parties hereto, that this agreement is necessary and in conjunction with the purchase of the above described land by the party of the first part from the present owner, P. A. Denning, through his guardian Albert Schlyer, Hays, Kansas. It is further agreed that party of the first part is to make payment of the $70 balance due the party of the second part whenever title is acceptable and deed is delivered in connection with the purchase of the above described land.”
In the paragraph just quoted Wolf was made to understand that he was not to be paid for the summer fallowing and his other work nor for the fence posts nor for the repairs on the windmill until title to the land was acceptable and until the deed was “delivered in connection with the purchase” of the land.
Counsel for appellant suggest an analogy between the case at bar and Brendle v. Hudson, 146 Kan. 924, 73 P. 2d 1013. There is no discernible analogy. Another case cited by appellant is Triplett v. Farmers Union Coöp. Co., 120 Kan. 725, 244 Pac. 861. In this latter case what slight analogy there is to the case at bar is favorable to Weissbeck. There Triplett made a contract to purchase the land. He hired Smith to jjlant 66 acres of the land to wheat. Triplett furnished the seed and paid Smith for the plowing, harrowing and drilling. Smith occupied the land and withheld possession, and an action was begun to obtain possession and to eject Smith. While that action was pending Smith harvested the wheat and sold it to the Farmers Union Cooperative Company and received payment therefor. Triplett sued the purchaser for the value of the wheat and recovered. Necessarily the true ownership of the crop was drawn in question, and neither the trial court nor this court had any difficulty in deciding the case in favor of the man who furnished the seed, paid for the plowing, harrowing and planting, and was only prevented from harvesting it by the wrongdoer who threatened to kill him if he came on the land. In the Triplett case, our early case of Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664, is reviewed. We agree with the trial court that the rule it stated is pertinent and applicable to the case now before us — -if plaintiff’s deprivation of the occupancy of the land could be ascribed to some deliberate wrongdoing on the part of Weissbeck, which does not appear.
In our early case of Duncan v. Yordy, 27 Kan. 348, it was held:
“A plaintiff in the actual and peaceable possession of real estate may be entitled to recover for injuries to his growing crops, although not the owner of the premises, and not entitled to the right of possession thereof.”
In 25 C. J. S. 8, it is said:
“Where a mere intruder on land plants crops thereon, such crops, as long as they remain unsevered, are the property of the owner of the land. ... On the other hand, one who sows, cultivates, and harvests a crop on the land of another is entitled to the crop as against the owner of the land, whether he came to the possession of the land lawfully or not, provided he remains in possession until the crop is harvested.”
See, also, Holmes v. Holt, 93 Kan. 7, 142 Pac. 369; and 15 Am. Jur. 222.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Defendant appeals from a judgment rendered against him in an action for damages sustained by plaintiff by reason of his having been struck by defendant’s automobile.
As the facts will be more fully stated later, we notice the pleadings very briefly. The petition alleged that plaintiff was operating some equipment on the highway; that he stopped, descended on the left side and walked toward the rear, and that defendant negligently ran into him. The negligence alleged included defendant’s speed as neither reasonable nor prudent under the conditions existing; failure to keep a proper lookout for others using the highway; failure of defendant to pull to the right when he had ample room to do so; and failure to decrease his speed as much as necessary to avoid colliding with plaintiff. Defendant’s answer included an admission an accident occurred; alleged the accident was the result of plaintiff’s negligence; alleged a sudden emergency which prevented defendant from avoiding the accident and charged plaintiff with contributory negligence.
As the result of a trial the jury rendered a verdict in favor of plaintiff and answered special questions which will be later set forth. Under the circumstances we shall review the testimony which tends to support that verdict or is necessary to a discussion of contentions made by the defendant.
On August 1, 1941, about 9 o’clock a. m. plaintiff was proceeding westwardly along highway 96 in Lane county, Kansas. He was driving a piece of equipment called a caterpillar Diesel patrol and drawing behind another piece of equipment called a scoop. The patrol was about nine feet wide and the scoop was about eleven feet wide. The length of the two vehicles was about forty-nine feet, and it was about thirty-five feet from the driver’s seat on the patrol to the rear wheels of the scoop. The platform of the patrol, and on which was the driver’s seat, was about four feet above the ground and at each side were steps leading to the ground. Loaded on the scoop was a wooden tool shed of sufficient size to cut off the driver’s view to the rear. Following behind plaintiff’s patrol and scoop were other similar outfits. The traveling speed was from six to eight miles per hour. Plaintiff thought it necessary to check up on his equipment and to do so he pulled to the side of the highway. The highway was about twenty feet wide and covered with asphalt, the center line not being marked. Outside the pavement were shoulders three or four feet wide covered with grass and there was a shallow ditch outside each shoulder. Plaintiff went as far off to his right as he thought he could without tipping off the tool shed or getting in the ditch. As he was preparing to stop he could see defendant’s c'ar approaching about one-half mile west. After he had stopped the patrol he arose from his seat and defendant’s car was then five or six hundred feet to the west. He stepped to the south end of the patrol platform, down to the pavement and started to the rear of his equipment. He had gone about thirty-five feet or about to the rear end of the scoop when he was struck by defendant’s car. In passing from the patrol toward the rear of the scoop he stayed close to his equipment but angled off to the south a little. On more than one occasion, he testified that with reference to the center of the pavement he was north of the center'line or maybe just on the line.1 He also testified that the north wheels of the séoop were not in the ditch but were one or two feet off the pavement. There was testimony that defendant’s car was being driven about fifty miles an hour. There was' also testimony that defendant’s car had left some skid marks, the mark nearest the center of the pavement being seven feet, ten inches from the south edge. The skid marks angled to the south as they extended eastward, and were 137 feet long. There was a space of about fifteen feet between the rear of the equipment being driven by plaintiff and the front of that driven by the driver of the outfit following. Plaintiff was struck by the left front side of defendant’s car and his body was carried and thrown off, landing near the rear o'f the second scoop. There was a blood spot on the pavement where plaintiff landed. This spot was near the center of the highway and about twenty-four feet east of where the skid marks ended. Dedendant’s demurrer to plaintiff’s evidence was overruled.
In an explanatory way, it may be said that defendant stated he did not see the equipment until he was about four hundred feet east of it; that as he approached, plaintiff arose from his driver’s seat, went .to the south side of his machine and jumped directly onto the fender of defendant’s car; that his feet never touched the ground; that when defendant saw plaintiff jump he immediately applied his brakes. Defendant further testified that the plaintiff’s equipment was just stopping when he saw it four hundred feet away; that it stopped when he was about two hundred feet away; that he had been driving between forty-five and fifty miles per hour and was still coming at that rate when the plaintiff stopped.
Under instructions, of which no complaint is made, the jury returned its general verdict and answered special questions submitted. On motion of counsel the jury was directed to make certain answers more definite. The several answers are shown. All questions and answers were as follows:
“Q. 1. Do you find that the happening was an unavoidable accident as defined in the Court’s instruction? 1st A. It could have avoided. 2d A. No.
“Q. 2. Do you find that the defendant was guilty of any negligence which caused or contributed to cause the injuries received by plaintiff? A. Yes.
“Q. 3. If you answer the above question in the affirmative, state what the negligence of the defendant was. A. Driving with too great speed and failing to slow down when object appears.
“Q. 4. Do you find that the plaintiff was guilty of any contributory negligence, as defined in the Court’s instructions? A. No.
“Q. 5. If the plaintiff had gotten off of his patrol on the north side instead of the south side would the happening have occurred? A. No.
“Q. 6. Should the plaintiff in the exercise of due care gotten off of the patrol on the north side? A. Yes.
“Q. 7. Did the plaintiff maintain a proper lookout for his own safety? A. Yes.
“Q. 8. Where did the accident occur with reference to the center line of the highway? 1st A. 1 foot north, 2 feet south of imaginary center line. 2d A. Between 1 foot north, 2 feet south of imaginary center line. 3d A. In space between 1 foot north and 2 feet south of imaginary center line.”
In due time plaintiff filed his motion for a new trial, limited to the issue of his damages. Defendant filed his motion that the answers to questions 2 and 4 be set aside; for judgment on the ground no cause of action had been pleaded or proved; and his motion for judgment non obstante veredicto. The trial court denied all of these motions and rendered judgment on the verdict of the jury in favor of plaintiff and for $1,536.10 and interest. Defendant has appealed from that judgment and rulings adverse to him, and plaintiff has appealed from the decision denying him a new trial on the question of damages.
In the briefs the parties direct our attention to many cases in this state, and some from other jurisdictions, dealing with negligence and questions connected therewith. These cases have been examined, but a due regard for limits of space precludes reference to many of them.
The appellant first contends that by its answers to special questions 5 and 6 the jury found the plaintiff was guilty of contributory negligence. To avoid the effect of the answer to question 4, which absolved the plaintiff of such negligence, appellant directs our attention to the rule stated in Eldredge v. Sargent, 150 Kan. 824, 832, 96 P. 2d 870, and cases cited therein, that a finding similar to that made by the answer to question 4 is a general one and must yield to the detailed findings made by answers to other questions. The general rule may be conceded. Reference to question 4 will show that it is specific to this extent, it asks whether plaintiff was guilty of contributory negligence, as defined in the court’s instructions. A part of the instruuction read as follows:
“The test by which the ‘contributory negligence’ of a person injured in an automobile accident is measured, is whether he acted as a reasonably prudent man would have acted under the peculiar circumstances of the case, considering the surrounding hazards and any other factors explanatory of t-he particular situation.”
The finding made by the answer may not be summarily passed off as being a general finding which must yield to other findings. However, we need not rest the matter there.
Coupled with the foregoing contention is the further one that the jury found that the plaintiff had a choice of means of leaving bis patrol, one to the north and toward the ditch, which was free from hazard, the other toward the south, or on the highway side, where there was danger, and he was negligent because he did not choose the first. In support of the latter proposition appellant relies on Jones v. A. T. & S. F. Rly. Co., 148 Kan. 686, 85 P. 2d 15. The same contentions were made to the trial court on the hearings of defendant’s motions for judgment on the ground no cause of action had been proved and for judgment non obstante veredicto. In a memorandum opinion that court stated that neither question 5 nor 6 should have been submitted as the law did not require that the plaintiff, in the exercise of due care, get off on the north side, when the driver of every vehicle exercising ordinary care practically always gets off on the driver’s side. Without giving full approval of the reason assigned, we agree that question 5 should not have been submitted. As to it there was and could have been no issue, it was always clear that had plaintiff stayed on his machine, left it to the north, or proceeded back staying on the equipment, he would not have been struck at the place nor in the manner that he was. As to the answer to question 6, we think it just as much a conclusion as the answer to question 4, and it certainly may not be said to be a detailed finding. The form of question 6 invited an ambiguous answer. An answer of “no” would have been objectionable on the ground there was no dispute of fact leading to that answer. An answer of “yes” would mean it would have been the exercise of due care to have left the patrol on the north side, but it certainly is no finding that in the exercise of due care the driver could not have left by the south side. And this is evident when taken into consideration with question 7, where the jury was interrogated as to whether plaintiff looked out for his own safety, and answered that he did. Without further discussion we think that the answer to question 6 does not convict the plaintiff of contributory negligence, nor is it so inconsistent with the answer to question 7, as supplemented by the answer to question 4, that appellant is entitled to judgment. - Because of the situation as presented in this appeal, we note,, but need not discuss at length, the general proposition that if answers to special questions were so inconsistent they could not be reconciled with each other and with the general vardict, then a new trial should be granted. Here neither party wanted a new trial.
The question remains whether plaintiff is to be denied recovery because he did not choose to leave the patrol on the north side, rather than the south. In the Jones case, supra, plaintiff, a grain inspector employed by another than the defendant, while in pursuit of his work was injured in getting from one side to the other of a string of cars by climbing over the couplers of freight cars, a recognized dangerous practice, when he could safely have performed his task by going up one side of the train and passing around the end and then going down the other side. The factual situation, as well as the rules of the railroad prohibiting its own employees to follow such a practice, were all in evidence. We think the rule of that case is not controlling, here. The duty incumbent upon .the actor must depend on the facts surrounding the action. Plaintiff’s version of what happened, and in view of the jury’s verdict and answers the version we must recognize, was that when he stopped his patrol and descended from it to the south, defendant in his car was five or six hundred feet away. We think under such circumstances it may not be said as a matter of law, that plaintiff was negligent in descending from his patrol on the south side. It was a fair question for the jury which said as a matter of fact he was not.
Under another heading appellant contends that the answers to the special questions acquitted him of negligence. After directing attention to answers to questions 2 and 3, to the effect that defendant was negligent in that he drove with too great speed and failed to slow down when he saw plaintiff’s equipment, and to the answer to question 8 showing where the accident occurred, appellant calls attention to the rule that such a finding exonerated him of all other acts of negligence charged (Haley v. Kansas City Public Ser. Co., 154 Kan. 477, 119 P. 2d 449, and cases cited) and argues that neither the speed nor the failing to slow down constituted negligence. The rule is correctly stated, although there are exceptions to it not here pertinent. (Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 484, 119 P. 2d 459; Dick’s Transfer Co. v. Miller, 154 Kan. 574, 577, 119 P. 2d 454.) The answers made, however, cover the allegations of the petition that defendant drove his car at a speed greater than reasonable and proper under the conditions then existing, and failed to decrease his speed as much as necessary to avoid colliding with the plaintiff, and it is implicit in the answers that the jury likewise considered the defendant failed to keep a lookout for others using the highway, or in driving further to the right to avoid the collision, or in failing to sooner apply his brakes. Appellant further contends that by the answer to question 8 the jury refused to find defendant was on the wrong side of the highway.
We take these up in inverse order. We think appellant applies a wrong rule of interpretation to the answer to question 8. The rule is that a general verdict imports a finding upon all issues of the case not inconsistent with the special findings; that nothing will be presumed in favor of the special findings which are to be given such a construction, if possible, as will bring them into harmony with the general verdict, and that while nothing will be presumed in favor of special findings as against the general verdict, they may be viewed and interpreted in the light of the testimony. See Marley v. Wichita Transportation Corp., 150 Kan. 818, 821, 96 P. 2d 877, and cases cited. The evidence showed a pavement twenty feet wide; that the widest part of the scoop was eleven feet; that it was parked partly off the pavement; that the center line of the pavement was not marked; that plaintiff was close to the widest part of the scoop when he was struck. The most favorable view to the appellant of the above answer is that the accident occurred about in the center of the highway — it cannot be construed as being an answer that plaintiff was at a place where he had no right to be nor where appellant owed him no duty.
The question whether speed in and of itself constituted actionable negligence has been discussed in many decisions. Our statute provides that no person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent under the conditions then existing (G. S. 1941 Supp. 8-532). Appellant directs our attention to and quotes at length from Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906, wherein it was held that speed of a bus was not the proximate cause of an accident. The rule as stated in that case is:
“The mere violation, of a statute regulating speed is not in itself sufficient to make the operator of a motor vehicle guilty of actionable negligence in a collision of automobiles; to make him liable it must appear that the speed contributed to the collision and was the proximate cause of the injuries sustained. (Citing cases.)” (1. c. 159.)
And on the same point see Dick’s Transfer Co. v. Miller, supra. The jury found the speed did contribute to the accident, and appellant filed no motion to have it set aside. On the contrary, he filed a motion to have judgment in his favor non obstante veredicto, a concession on his part that the answer was supported by the evi dence. See Sams v. Commercial Standard Ins. Co., ante, p. 278, 139 P. 2d 859 (this day decided), and cases cited therein. And the record discloses evidence that speed was a proximate cause of the accident. Briefly the evidence was that defendant, driving fifty miles an hour, saw the cumbersome equipment driven by plaintiff come to a stop on the highway, and that although he saw or could have seen plaintiff, he did not decrease his speed, but continued it until the accident. It was inferable from the testimony that had he reduced his speed and had his car under better control, he could have stopped before reaching the point of impact or he could have driven his car either to the south side of the pavement, or out on the shoulder to the south, and have avoided the accident.
And finally, we notice appellant’s contention that plaintiff was guilty of contributory negligence as a matter of law, and that his demurrer to plaintiff’s evidence should have been sustained. Heretofore a review has been made of that evidence. When we view it in the light of the rule laid down for testing sufficiency of evidence on demurrer (see Bessette v. Ernsting, 155 Kan. 540, syl. ¶ 3, 127 P. 2d 438, and Robinson v. Short, 148 Kan. 134, syl. ¶ 1, 79 P. 2d 903) we are not concerned with any evidence of contrary effect nor with the jury’s conclusions later made. Considered in every particular most favorable to plaintiff, the evidence disclosed that he descended from his machine at a time when defendant was six hundred feet away; that he walked close to his parked machine for a distance of thirty-five feet and while on his side of the highway was struck from the rear by the defendant who was then driving his car at a speed of fifty miles per hour; and that to the south of him one-half of a twenty-foot pavement was open for travel and to the south of the pavement was a four- or five-foot shoulder. Under the rule referred to, we cannot say that plaintiff was guilty of negligence as a matter of law.
We now consider plaintiff’s cross-appeal, based on his contention the trial court erred in not allowing him a new trial limited solely to the question of his damages. In its memorandum opinion the trial court stated the motion was denied on the authority of Friesen v. Western Grain Dealers Ins. Co., 119 Kan. 513, 240 Pac. 414, and Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379, by reason of the fact the damage sustained by plaintiff was so intimately connected with the other questions in the case, the amount of damages sustained by plaintiff could not be separately tried and a just conclusion reached. After discussing other matters the trial court noted that neither party desired a new trial as to all issues. The trial court then expressed its satisfaction with the verdict and approved it and rendered judgment upon it. It would be a work; of supererogation to repeat the very complete analysis of our cases made in Paul v. Western Distributing Co., supra. We shall content ourselves by saying that case provides abundant authority to support the trial court’s ruling.
We find no error in the judgment of the trial court and it is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
This is an appeal by the warden of the penitentiary from an order discharging a prisoner in a proceeding in habeas corpus. The primary question is whether the petitioner’s conviction and sentence were void because of irregularity in the information.
In June, 1925, Alex James, the appellee, was tried and convicted by a jury in Shawnee county, Kansas, on a charge of murder in the first degree'. On July 11, 1925, he was sentenced to life imprisonment and was regularly committed to the Kansas State Penitentiary on February 2, 1926. He remained incarcerated there until discharged under an order of June 5, 1943, from which this appeal was taken.
Appellee’s petition for a writ was filed in the district court of Leavenworth county on April 13, 1943. The writ was issued on the same day and the matter was heard on April 23, 1943, the petitioner appearing in person and by his attorney and the warden appearing by the county attorney and the assistant county attorney. No oral testimony was received. The case was determined solely on a question of law. The trial court found that “said restraint is illegal, void and of no effect and that the district court of Shawnee county, Kansas, was without jurisdiction to render any judgment or conviction under the information filed in said action,” and ordered the warden to release the petitioner “within ten (10) days from the receipt” of the certified copy of the journal entry. The order further directed that a certified copy of the order be forwarded to the county attorney of Shawnee county. A few days after the order was entered the warden released the prisoner. The record before us does not disclose the exact date of the release, but we were advised by counsel that it was several days prior to the notice of appeal which was filed on June 12, 1943. There was no motion in the court below for stay of execution of the -order of discharge pending appeal nor was there any motion to require bond for delivery of petitioner in case the order of discharge was set aside upon appeal.
The issue turns upon an inaccuracy — an absurd inaccuracy — in the information upon which appellee was tried in June, 1925. The information, which was dated June 8, 1925, recited that the murder was committed “on the -- day of December, 1925” — about six months after the trial! The question is whether all proceedings in the criminal trial were void because of this defect in the information.
The general rules or principles of law relating to this unusual situation are well established. The question is largely one of applicability. It is well settled that a proceeding in habeas corpus is not to be regarded as a substitute for appellate review. (25 Am. Jur. 162 et seq. and 173 et seq.; Levell v. Simpson, 142 Kan. 892, 894, 52 P. 2d 372.) Where a prisoner is held in custody upon regular commitment after conviction and sentence he may not invoke habeas corpus to secure revision of errors that might have been reached by amendment or appeal, where the. court which imposed the sentence had jurisdiction to impose the sentence. It is only in cases where the information, the indictment, or the proceedings were otherwise void so that the court acquired no jurisdiction of the person or the cause, that the remedy of habeas corpus becomes available. We are here speaking, of course, with reference only to alleged insufficiency of the information or of the proceedings in some other respect and not with reference to alleged denial of counsel, due process, or other constitutional guaranty. To state it in a slightly different way, habeas corpus cannot be used to review nonjurisdictional errors and irregularities leading up to judgment. (25 Am. Jur. 159,162 et seq.; In re Bion, 59 Conn. 372, annotation; 11 L. R. A. 694 and cases cited p. 700; U. S. v. Lair, 195 Fed. 47; Ex Parte Parks, 93 U. S. 18, 23 L. Ed. 787; 76 A. L. R. 469.) The general rule has been variously stated. In Franklin v. Biddle, 5 F. 2d 19, it was said that the question is whether the indictment was sufficient to give the court jurisdiction to enter upon inquiry and make a decision. Our own decisions are in line with the general rule. See In re Bolman, 131 Kan. 593, 595, 292 Pac. 790; In re Wright, 74 Kan. 409, 412, 89 Pac. 678; In re Terry, 71 Kan. 362, 365, 80 Pac. 586; In re Morris, 39 Kan. 28, 30, 18 Pac. 171; Prohibitory Amendment Cases, 24 Kan. 700, 724; In re Spaulding, 75 Kan. 163, 166, 88 Pac. 547; In re White, 50 Kan. 299, 301, 32 Pac. 36; Loftis v. Amrine, 152 Kan. 464, 466, 105 P. 2d 890; Engels v. Amrine, 155 Kan. 385, 125 P. 2d 379.
The trial court recognized the general rule and'took the view the defect in the information vitiated the criminal action, rendered the sentence and commitment void and the imprisonment unlawful, and made habeas corpus a proper remedy.
We are unable to join in the conclusion reached by the able and experienced judge of the trial court, for whose considered views we entertain great respect. In our opinion, the defect in the informa tion — so obviously a clerical error — did not render the information void or vitiate the subsequent proceedings. The inaccuracy would have been subject, without question, to correction by amendment. More than that, it is not reasonable to determine the issue here on the sole basis of the mistake in date without any reference to all the other allegations of the information. It is not necessary to set out the information in full, but no question is raised as to its sufficiency in any other particular. All the essentials constituting murder in the first degree were clearly charged — a deliberate and premeditated assault, with malice aforethought, with a deadly weapon, the infliction of a mortal wound upon an identified victim, and the death of the victim within “about thirty-three hours” thereafter as a result of such assault. On this information defendant went to trial. The journal entry — with its full recitals- — of course discloses no objection having been made to the information, and appellee does not contend that the journal entry is not complete. The defendant was represented by able counsel. The journal entry discloses that the trial consumed a number of days. The verdict was returned on June 15, 1925, and upon motion of the defendant sentence was deferred for twelve days and was not actually pronounced until July 11, nearly a month after the verdict was returned. Before sentence the defendant was asked whether he had anything to say as to why sentence should not be pronounced and he answered in the negative. Commitment — -the regularity of which on its face is beyond question-followed. Now,.for the first time, after eighteen years have passed, the information is challenged. We have no hesitancy in saying that the information was sufficient to give jurisdiction, that the defendant’s rights were not prejudiced by the clerical error which obviously was not noticed at the time by anybody, and that the most that could be claimed against the information is that it was voidable. That would not make it subject to collateral attack. While the record of the trial, other than as already stated, is not before us and we do not know what the evidence showed as to the date when the murder was committed, we are under no judicial compunction to ignore realities which require no proof. To say that we must give controlling and exclusive weight to a palpably clerical error — the specification of an impossible date — in disregard of all other allegations of the information, amounts, practically speaking, to saying that we must indulge the preposterous assumption that the defendant, the court, the jury, the counsel, were engaged, for days, in a trial over a murder which had not yet been committed! We shrink from ascribing such potency to the slip of a pen.
Before leaving the immediate point it is well to note that the statute of limitations does not run on first-degree murder and that therefore no issue can here be involved as to whether, if the correct date of the crime had been alleged, a bar to- prosecution might have been asserted.
In People v. Hunt, 153 Misc. 783, 275 N. Y. S. 115, a habeas corpus proceeding wherein the petitioner, who had been convicted of burglary and duly sentenced, challenged the indictment on the ground that no date was specified when the crime was committed, it was held that the defect was not sufficient to deprive the court of jurisdiction. In the opinion it was said: “the accused should not be heard to complain that a constitutional right has been infringed by the form of an indictment if that form does ntit preclude the accused from asserting in some manner every substantial right he may have.” In the instant case the accused went to trial and through the trial without objection to the information. Certainly he was not precluded from “asserting in some manner every substantial right which he had,” nor, if entitled to review by appeal, was that relief denied him.
The case of Ex Parte Sneed, 46 Ok. Cr. 53, 287 Pac. 1062, is “on all fours” with the one before us. In 1923 Sneed was convicted and sentenced to life imprisonment for first-degree murder. In 1927 he brought an action in habeas corpus, contending that the trial court in 1923 never acquired jurisdiction because the information which was filed on July 26, 1988, charged that the offense was committed “on November 15, 1905 and November 37, 1988.” It will be noted that one of the dates upon which it was alleged the crime was committed was about four months in the future. While one of the dates specified was prior to the charge the two dates were conjunctive and therefore the time alleged was as impossible as in the instant case. The writ was refused, the court saying: “these questions cannot be considered by this court; ... an examination of the record discloses that the information did- charge the petitioner with the commission of the offense for which he was convicted,” and that the trial court had jurisdiction to try the defendant. Many cases are cited in the opinion in support of the proposition that in such situations “the writ of habeas corpus . . . should be limited to cases in which the judgment and sentence of the court attacked is clearly void.”
We pass to other questions here involved which merit some attention. As already noted, the trial court directed the release of the petitioner “within ten (10) days from receipt” of the journal entry. While the record does not specifically so disclose the fact, we assume that the ten-day period was provided in order to give the state time for any further procedural steps available which it desired to take. No immediate steps were taken, the warden released the prisoner, and several days thereafter filed notice of appeal to this court. Clearly the warden acted within the letter of the order which directed release within ten days. The question arises whether it can be said that the warden, by releasing the prisoner before taking an appeal and without seeking stay of execution, so acquiesced in the judgment as to defeat the right of appeal.
In many jurisdictions it is held that in the absence of statutory provision therefor, no appeal lies from an order discharging or refusing to discharge a prisoner in habeas corpus proceedings (2 Am. Jur. 922 et seq.). Indeed, some courts have severely criticized statutes which permit such appeal, especially where the order directs discharge of the prisoner (2 Am. Jur. 923, 34 L. R. A., n.-s., 755). The criticism is made on the ground that the delay incident to appeal may defeat the fundamental right .protected by the writ. In this state, however, the right of appellate review in habeas corpus cases has been recognized under the general appeal provisions of the civil code (G. S. 1935, 60-3302, 60-3303) even though the statute (G. S. 1935, 60-2201 et seq., Civ. Code, art. 22) dealing with habeas corpus does not specifically provide for appeals from the district court. (In re Petty, 149 Kan. 875, 89 P. 2d 835; Bowers v. Wilson, 143 Kan. 732, 739, 56 P. 2d 1212; Miller v. Gordon, 93 Kan. 382, 144 Pac. 274. See, also, In re Wadleigh, 108 Kan. 682, 197 Pac. 217.)
The next proposition to be noted is that by the great weight of authority an order of unconditional discharge in a habeas corpus proceeding may not be stayed pending appeal, in the absence of statute specifically providing therefor. (Dickson v. Mullings, 66 Utah, 282, syl. ¶ 6, 241 Pac. 840, and cases cited on page 289; 43 A. L. R. 136; 3 Am. Jur. p. 204, ¶ 556; annotation, 63 A. L. R. 1480.) Nor, where stay is specifically authorized, does an appeal automatically effect a stay. (Dickson v. Mullings, supra, syl. ¶ 5; annotation, 63 A. L. R. 1478 et seq.) In People, ex rel. Sabatino, v. Jennings, 246 N. Y. 258, 156 N. E. 613 (annotated 63 A. L. R. 1458 et seq.) it was said in the opinion by Mr. Chief Justice Cardozo:
“It would be intolerable that a custodian adjudged to be at fault, placed by the judgment of the court in the position of a wrongdoer, should automatically, by a mere notice of appeal, prolong the term of imprisonment, and frustrate the operation of the historic writ of liberty. ‘The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty.’ . . .
“A statute suspending the effect of the discharge by the mere force of an appeal would be at war with the mandate of the Constitution whereby the writ of habeas corpus is preserved in all its ancient plenitude.”
Many supporting cases were there cited.
Our statutes dealing with habeas corpus have no specific provision for stay of execution upon appeal from order discharging a prisoner. Certainly under the authorities above cited the order of discharge in the instant case would not automatically have been stayed even if the. appeal had been taken prior to release of the prisoner by the warden. We need not here determine whether in the absence of statute specifically authorizing it a stay might have been granted upon motion. In any event we assuredly cannot say that discharge of the prisoner, prior to taking the appeal, had the effect of foreclosing appeal. This conclusion is fortified by various other elements here present. We are not here dealing with a judgment in which the immediate parties are alone concerned. This is not a case where a private litigant may elect to accept a judgment or to reject it and appeal, and where by accepting benefits or acquiescing he may forfeit the right to appeal. Here the warden had no such election. He was under mandate to release the prisoner. “The right to appeal is not waived by acts which appellant was under a duty to perform.” (4 C. J. S. 397; Stanhope v. Rural High School, 110 Kan. 739, 205 Pac. 648, syl. ¶ 1.) Also, see cases cited 4 C. J. S. 397, note 21, in support of the proposition that “in order to be a bar to the right of appeal on the ground of acquiescence . . . the acts relied on, as a waiver or estoppel on such ground, must be such as to clearly and unmistakably show an inconsistent course of conduct or an unconditional, voluntary and absolute acquiescence.” No such situation barring appeal exists here. Nor is there any doubt that the warden had sufficient interest as a public officer to bring the appeal, (Miller v. Gordon, supra, syl. ¶ 2; 4 C. J. S. 387.)
It follows from what has been said that the court below erred in ordering release of the petitioner and that the release of the prisoner prior to appeal did not foreclose appeal from the order of discharge.
The judgment is reversed with directions to set aside the order of discharge and to deny the writ.
Smith and Thiele, JJ., dissent from paragraph 5 of the syllabus and from the corresponding portion of the opinion.
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The opinion of'the court was delivered by
Thiele, J.:
In this appeal the sole question presented is whether a sale in the probate court of minors’ interest in real estate was void.
In a preliminary way it may be stated that Frank Palkowsky, Jr., a resident of Graham county, Kansas, died intestate sometime prior to March 7, 1938, leaving as his heirs his widow and three minor children. At the time of his death he owned a half section of land in Phillips county. On March 7, 1938, the mother was ap pointed as guardian of her minor children, and under proceedings in the probate court of Graham county, of which no complaint is made, she sold the minors’ one-half interest in the above-mentioned real estate, the conveyance, however, being subject to a reservation of an undivided one-sixteenth interest in oil, gas and mineral rights in said lands for a period of twenty years. Later and in July, 1940, under proceedings in the pi'obate court of Graham county, of which complaint is made, as is more specifically set out later, she sold the minors’ reserved mineral interests to Hugh King, who later conveyed at least a part of his interest to Theron W. Hicks.
On January 3, 1941, Hicks and the other plaintiffs brought an action against a' number of adult defendants and against the Palkowsky minors and their guardian, in which they sought, inter alia, to quiet their title against the minors, who answered by their guardian. We need not review the allegations of that answer covering matters hereafter discussed, but they alleged the sale of their interest in the minerals was void and of no effect because of the failure of their guardian to give notice as required by the probate code. Plaintiffs’ reply and answer alleged facts purporting to show-due notice of sale was given to the minors. Other pleadings need not be noted. When the action came on' for trial a guardian ad litem was appointed for the minor defendants. He filed an answer on their behalf and defended the action.
At the trial the following was shown concerning the sale of the minors’ interest in the reserved minerals. Under date of July 8, 1940, Della Palkowsky Wathen, as guardian of the minors, and she and her husband individually, made an agreement with Hugh King to sell him their undivided interests in the mineral rights in the involved real estate, it being stated the interest of Mrs. Wathen was an undivided one-sixteenth and the interest of the minors was an undivided one-sixteenth. The consideration for both interests was |300, and provision was made for approval by the probate court. The contract bore an endorsement it was approved by the probate judge on the day it was made. The guardian later filed a petition for authority to sell the minors’ interest, and on July 11, 1940, the probate court made its order that the guardian give notice of the time and place of hearing the petition by serving a true copy of the petition on each of the minors at least ten days prior to the date of the hearing which was set for July 24, 1940, at the office of the probate judge of Graham county. The notices were served and on the day set the probate court ordered that the minors’ interest be sold at private sale; that the interest should be appraised by three disint'erested householders of the county wherein the real estate was situated (Phillips) and sold for not less than three-fourths of the appraised value. On the same day the guardian made a report showing compliance with the order for appraisement and that she had sold the minors’ interest. No point is made of it by the guardian ad litem, but the report of sale as abstracted does not disclose who the purchaser was nor the amount for which the minors’ interest was sold. On the same day the probate court approved a sale to Hugh M. King, but its order does not disclose what the purchase price was.
During the course of the trial of the quiet-title suit the trial court overruled the demurrer of the guardian ad litem to plaintiff’s evidence, later sustained plaintiffs’ demurrer to the evidence offered by the minors and thereafter rendered judgment against the minor defendants for costs and quieting plaintiffs’ title. In the judgment are extensive provisions concerning division orders with respect to sums due from oil and gas produced, etc., which need not be reviewed. Insofar as the particular matter before us is concerned, the trial court found that the proceedings in the Graham county probate court were irregular, but not yoid, and at the most only voidable; that the probate court had jurisdiction to make the orders made by it and that the deed executed pursuant to the proceedings and recorded in Phillips county was sufficient to form the basis for plaintiffs’ title, and that the proceedings were not subject to collateral attack.
The motion of the guardian for a new trial was denied and appeal to this court followed.
The basis for appellants’ contention the trial court erred in its rulings and judgment is that the proceedings for the sale of the minors’ interest in the real estate had in the probate court of Graham county, in July of 1940, are absolutely void because of the failure of the guardian to give notice to the minors as required by the probate code which became effective July 1, 1939, reliance being placed especially on G. S. 1941 Supp. 59-2304 and 59-2209. Appellees concede that the giving of notice is jurisdictional, and that no attempt was made to comply with the statutes referred to. They contend that the proceedings in guardianship had been pending since March, 1938, and that the proceedings for sale show the pro bate court must have concluded that to follow the procedure of the probate code would not be feasible or would woi’k injustice (G. S. 1941 Supp. 59-2602), and that the former procedure (G. S. 1935, 38-211 et seq.) should apply, that under the latter procedure the proceedings might be irregular, as the trial court found, but the same were only voidable and not void, and therefore not subject to collateral attack in the quiet-title proceedings.
For the purposes of this opinion we shall assume that if it were proper to follow the procedure obtaining prior to the enactment of the probate code in 1939, then what was done, from the standpoint of notice to the minors, was sufficient and not subject to collateral attack. The former procedure for notice was that a copy of the verified petition for authority to sell real estate, with a notice of the time it would be heard, must have been personally served on the minor, if a resident of the state, at least ten days prior to the time fixed for making the application (G. S. 1935, 38-212). That statute fixed the procedure and no order of the probate code fixing time or method of notice was required. The new code made a radical change. Under it a guardian may petition for authority to sell real estate of a ward and he is required to give notice of the hearing on such petition pursuant to section 185. (See G. S. 1941 Supp. 59-2303, 59-2304.) Section 185 appears as G. S. 1941 Supp.' 55-2209 and requires publication for three weeks in a newspaper of the county and that the hearing shall be not earlier than seven days nor later than fourteen days after the last publication.
Although it is repetition, we note that the guardianship proceedings were commenced in March, 1938, prior to the enactment of the probate code, and that the proceedings to sell the minors’ interest in real estate were commenced in July, 1940, or over one year after the probate code took effect. From the briefs it is apparent that in the trial court appellees took the position that a proceeding was pending all of the time and that the probate court had a choice of procedure either according to the probate code or according to applicable statutes prior to its effective date, and that under Barrett v. McMannis, 153 Kan. 420, 110 P. 2d 774, it was not necessary that the probate court make an express finding or order the former procedure apply, but that such a conclusion could be drawn from what it did. The last-mentioned case involved appointment of an administrator with the will annexed. There an executor of a will had been appointed some years before and had died July 11, 1939. On petition of one of the heirs Barrett was appointed administrator with the will annexed on July 25, 1939. It was contended the appointment was bad because no notice was given under the provisions of the probate code, then in effect only twenty-five days. In that case various statutory requirements are reviewed. It was stated that under the circumstances disclosed, this court could not say the probate court was without jurisdiction to entei’tain the application for and to make the appointment.
It will be observed that in the Barrett case the death of the former executor occurred within eleven days, and the appointment of his successor within twenty-five days after the present probate code became effective. In that opinion necessity for compliance with the new probate code was recognized, and failure to so comply was excused only under the circumstances of that case. Those circumstances included the nature of the relief sought, the shortness of'the time the code had been in effect, and inferences to be drawn from the court’s order of appointment. The instant case presents an entirely different situation under the facts and in the nature of the relief sought. It is true that the guardianship had been commenced in March, 1938, and shortly thereafter there had been a sale of the minors’ interest in the real estate involved, except for the reservation of mineral rights, but after that time nothing occurred until July, 1940, or more than a year after the probate code became effective, when the petition was filed asking for authority to sell. The filing of that petition was the commencement of a proceeding (G. S. 1941 Supp. 59-2204), and as a condition precedent to any effective order or judgment it was necessary that applicable provisions and requirements of the code be observed and met. As there is no contention about that procedure we need not review it.
In our opinion the present case is not determined by the case of Barrett v. McMannis, supra. In the instant case the proceedings for sale of the minors’ interest in real estate were governed by the probate code as effective July 1, 1939, and not by former procedure. Under the probate code, notice to the minors was jurisdictional. No notice was given as required and the proceedings were void. Being void they were subject to attack in the quiet-title proceedings and the trial court erred in ruling to the contrary, and in rendering judgment quieting title in the plaintiffs and against the minor defendants as to their interests in the real estate.
The .judgment of the trial court is reversed and the cause is remanded to the trial court with directions to set aside the judgment, and to render judgment consistent with the views herein expressed.
Parker, J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
Norman M. Rehg was charged under the latter part of G. S. 1935, 21-545, with the embezzlement of $1,170 which came into his hands as financial secretary of the Keystone Copper Mining Company of Arizona. A trial resulted in his conviction and sentence. He has appealed and presents many assignments of error.
The pertinent facts shown by the evidence may be summarized briefly as follows: The Keystone Copper Mining' Company of Arizona, a corporation, hereinafter called the Company, had mining properties near Dragoon, in Cochise county, Arizona. Its principal active officers were U. R. (Bert) Miller, president; T. C. (Clyde) Miller, secretary, and C. W. (Chuck) Miller, son of U. R. Miller, who appears to have held various positions in the organization. The mines had been operated for several years. By 1935 the Company had an estimated thirty-thousand-plus tons of ore, most of which was at the top of the mine, ready for milling, but needed money to mill the ore and place the products on the market. Their attorney, so far as these operations were concerned at least, was John W. Blood, of Wichita, a capable lawyer of good standing. Mr. Rehg lived at El Dorado, Kan., and for perhaps ten years had been engaged in the business of selling corporate bonds and securities and had built up an extensive clientele, many of whom entrusted him with funds to invest in such properties and had given him powers of attorney for that purpose. In 1935 he was contacted by the officers of the Company to sell securities or notes to raise $25,000 needed for the Company’s business. In preparation for this work Rehg went to the mines in Arizona and took with him several persons of high standing, well experienced in business affairs and corporate investments, who resided in or near El Dorado, and together they investigated the property and talked with the various officers of the Company with the view of determining whether investments made to raise the $25,000 would be sound and well secured. The testimony disclosed these men were informed by Bert Miller and other officers of the Company that the Company owned the approximately 355 acres of land upon which there were eighteen mining claims, also owned. all the buildings, which were quite extensive, and mining equipment; that the same was unencumbered by mortgages, taxes, judgments or other liens. Upon these representations, which Rehg testified were made not only to himself and others at the mine but to him repeatedly through the years 1935 and 1936, and upon which he relied, he undertook the task of trying to raise the $25,000 needed. The Company at the time had not secured a permit from the state corporation commission to sell its ’stock or securities in Kansas. The officers of the Company and their attorney and Rehg thought the matter could be handled by Rehg making loans for his clients under powers of attorney which he had from them. A form of “note contract” was prepared which by way of preamble recited that the Company was the owner and operator of certain mining claims and had about thirty-thousand-plus tons of copper-bearing ores, and after certain minor repairs and additions were made the company had facilities for concentrating the ore through its mill at the mine, and- (the name of the person advancing money) had loaned to the Company certain sums for the purpose of milling the ore and preparing the same for smelting and putting the mill and mine in operating condition. It was agreed by the Company that in consideration of the sum of- (to be inserted) loaned it by- (name of person advancing money) the Company agreed to repay said - (lender) within twelve months according to the terms of this contract, the Company to have the right to extend payment not to exceed an additional twelve months. By its terms the Company agreed to set aside the thirty-thousand-plus tons of ore as security for the payment of the sum of $25,000, of which the contract was a part; that out of the gross receipts from the ore milled to set aside at least 7% percent in a separate fund to be placed in the Walnut Valley State Bank at El Dorado, to be paid monthly to the payee of the note, and others having similar note contracts, and that the 7% percent should be a first and prior charge upon the smelter returns, and the Company agreed to pay semiannually 4 percent interest from the date on all balances due on the money loaned, and further that the payee of the note contract and others loaning a part of the $25,000 should have the right to inspect the mine, returns from smelters and the books of the Company until the money advanced with interest was fully paid; “and the Company further agrees that there are no outstanding liens or mortgage on the real property of the Company except $1,500 and that same will be paid, .and that the Company will not place any liens, mortgage or encumber said property until the $25,000 loan herein is fully paid.” The note contract further provided that in case the Company failed to carry out the terms of this agreement the payees of the note contracts should have the right to operate the mines, to mill the ore, and from the receipts thereof pay the actual expenses, including a representative of the creditors, and apply the balance toward the payment of the $25,000 borrowed. Rehg was given a number of these note contracts, blank as to date, amount and name of lender, and was authorized to fill those blanks and deliver the note contracts as they were sold.
Rehg sold .$3,200 worth of these contracts in 1935 and 1936 and furnished the Company’s attorney with copies of the powers of attorney under which he acted. It was concluded best, however, to procure authority from the state corporation commission to raise the money on these note contracts. Whereupon application was made to the state corporation commission, and after a hearing in November, 1936, the permit was granted. It was the plan of the Company under which Rehg operated that in borrowing the money on these note contracts the Company would deliver to the payee of the note contracts stock of the corporation in proportion to the amount of money loaned. For example, if $1,500 was loaned, 1,000 shares of no-par-value stock were given to the payee of the‘note contract as a bonus. In granting the permit to raise the money in this manner the corporation commission declined to permit the Company to issue additional stock, but required such stock as was given as a bonus should be given by the principal stockholders of the Company, and that plan was”carried out.
On December 7, 1936, a written memorandum was entered into between the Company and Rehg pertaining to the raising of this money. In it the Company first admitted there was then due Rehg $480 for services under previous contracts, and for Rehg’s assistance in procuring the permit from the state corporation commission and for services to be rendered, the Company employed Rehg and agreed to pay him five percent on such subscription payments in cash as commission and five percent in cash to be known as expenses, and twenty percent of the total amount, payable in twenty-four monthly installments to begin sixty days after the shipments of the ore to the smelters was commenced, and conditioned upon such shipments continuing and upon amounts reinvested by lenders in the purchase of the stock of the company under an “option to purchase contract,” a ten percent commission should be paid to Rehg in cash. Under this contract of employment and the permit from the Kansas Corpo ration Commission Rehg borrowed for the Company upon these note contracts approximately $17,000 in 1937 from his clients, many of whom had executed to him a power of attorney authorizing him to act for them in the matter of investments. Perhaps a few sales were made early in 1938 which are not specifically detailed here. Rehg himself had loaned $1,500 to the Company under one of the note contracts. Some of the note contracts were coming due under their primary terms and no interest had been paid semiannually or otherwise upon them.
In February, 1938, Rehg made a trip to the mines to see how the business was progressing, found that no ore had been milled, and the Company apparently in no better position to go forward with that work than it was in 1936. Rehg made inquiries about that and was told by Bert Miller that they had had to do more work in the mines in getting ready than they had, anticipated. Rehg asked Miller how much of the money he had sent in was still on hand. Miller told him they had about $2,700 in the two banks in which they kept accounts, one of them the Valley National Bank of Wilcox, Arizona, and the other the Walnut Valley State Bank of El Dorado. Rehg inquired of the Arizona bank and found there was nothing to the credit of the Company in that bank. Returning to El Dorado, he inquired of the Walnut Valley State Bank and was advised there was not enough money there to take up the $500 overdraft. Rehg then insisted that before any other money should be turned over to the Company he should be satisfied that it was being used for the purpose for which it was raised. As a result of his insistence on that point, and after a conference, the board of directors of the Company, at a meeting at which Rehg was present, held March 5, 1938, at El Dorado and recessed to March 12 at Wichita, adopted a resolution embodying an agreement reached, as follows:
“. . . it was ordered by the Board that the balance of the funds obtainable from the twenty-five thousand dollar ($25,000.00) loan shall be used for placing the mill and concentrating plant in operation to the immediate end that regular smelters returns checks in payment for the Company’s products may be received by the Company at the earliest possible date, and that the balance of the fund shall be held under control by the Company’s financial secretary, Norman Rehg, and shall be advanced in denomination of five hundred dollars ($500.00) as needed, to the Company’s general checking account in the Walnut Valley State Bank of El Dorado, Kansas, same to be subject to reports showing satisfactory performance of work at the Company’s mines; the president of the Company, Bert Miller, to give to the Walnut Valley State Bank a daily report of work done and the money expended and a public accountant to be sent to the mine who shall make a daily report to the Walnut Valley State Bank independent of the management of the Keystone Copper Mining Company, said report to cover work done daily and money expended daily; ...”
On March 19, 1938, U. R. Miller, president of the Company, at Dragoon, Ariz., acknowledged in writing receipt of the resolution and agreed to comply with the same. Thereafter such daily reports were made to the Walnut Valley State Bank as provided in the resolution, and a Wichita auditing firm was employed and E. W. Morrison of that firm was sent to Arizona and began to do the auditing provided for in the resolution. These reports did not show very satisfactory progress. On April 9 Rehg sold one of the note contracts to J. W. Starkey of Augusta in the amount of $800, and on April 8, 1938, he sold one of the note contracts to Metta Robb of El Dorado in the amount of $500, but for some reason, not definitely stated, this contract was dated January 15, 1938. He had a power of attorney from each of those parties. The money received by Rehg from these sales forms the basis of the charge in this action. Rehg appears to have sold other note contracts in 1938, the proceeds of which were paid to the Company by deposits in the Walnut Valley State Bank, but the facts relating thereto appear to have been regarded as immaterial.
The reports provided by the resolution of March 12, 1938, which reached the Walnut Valley State Bank continued to show unsatisfactory progress and apparent use of the funds obtained from the note contracts for purposes other than provided therein. Rehg became distrustful of the accuracy of the representations previously made to him by the officers of the Company and which he had repeated to persons who had loaned money on the note contracts and began making independent inquiries relating thereto. He wrote the county treasurer of Cochise county, Arizona, inquiring with respect to taxes upon the property of the company, and on April 26, 1938, received a letter stating personal taxes of the Company were unpaid for the years 1932 to 1937, inclusive. He also learned facts tending to show the title to the about 355 acres of land was not in the Company and that the Millers were claiming to own much of the property previously represented to Rehg as belonging to the Company. On May 15, 1938, he conferred at Wichita with Mr. Morrison of the auditing firm and learned the firm’s data showed judgments against the Company in favor of the Millers. He wired the clerk of the superior court of Cochise county, Arizona, asking for the record of judgments against the Company, and on the next day received a telegram from the clerk listing judgments in favor of U. R. Miller, T. C. Miller and Mrs. W. W. Miller, their mother, aggregating $19,-772.90 against the Company. Thereupon Rehg called a meeting of the persons to whom he had sold the note contracts, which meeting was held in El Dorado in the evening of May 17, 1938. At this meeting he learned from others present that the Millers and other officers of the Company had individual claims against the Company aggregating $39,445.90, as being prior to or on a par with the holders of the note contracts. At this meeting a written demand was made upon the officers and directors of the Company purporting to be by a majority of the holders of the note contracts, spoken of throughout the demand as bonds, which stated that N. M. Rehg and S. H. Barnhill, both of El Dorado, were selected to represent the note holders as trustees, and it contained eleven specific stipulations or demands, including the demand that the then officers and directors of the Company be removed; that the judgments above mentioned be released of record; that the officers of the Company having claims against it promptly waive such claims as against the note holders; that the books of the Company be turned over to the note holders until the Company could be liquidated and their claims paid; that' they be permitted to elect a majority of the directors and the principal officers of the Company; that there should be no transfer of the stock of the Company pending its liquidation; that the title to the 355 acres of land, together with all buildings and improvements thereon, be clarified in the Company, and some other specific demands respecting stock. This resolution and demand was duly signed by various note holders and promptly delivered. U. R. Miller testified that he received it within a day or two after its date.
On May 19, 1938, there was prepared in the office of the Company’s attorney at Wichita a demand upon Norman M. Rehg to turn over to the Walnut Valley State Bank, of El Dorado, Kan., to be deposited in the name of the Company, “the money now held by you belonging to said Company, to wit, thirteen hundred dollars ($1,300.00).” He was further notified to return all blank bonds in his possession. There is a lack of clearness in the evidence as to whether that was delivered to Rehg, but a few days later, upon an inquiry of the president of the Walnut Valley State Bank, Rehg stated that he was not going to turn it over, and in a letter (exhibit G, not fully abstracted) written by Rehg under date of June 18, 1938, language is used indicating that he was holding "the last $1,170 of the proceeds of the bond issue” for the reason that he feared the officers of the Company would use it for the type of expenditures for which they had used previous proceeds of note contracts.
Thereafter things connected with the Company appear to have moved rather rapidly. Its officers declined to comply with the demands of May 17 of the holders of the note contracts. Rehg went to Arizona and procured an order from the federal court to examine the records of the Company and testified to having discovered irregularities and fraud in 'the issuance and transfer of shares of stock given to the purchasers of the note contracts as a bonus and which indicated that such shares were fraudulently issued, and to have discovered other facts tending to show fraud and misrepresentation of the officers of the Company. He also brought, or caused to be brought, an action in the federal court of Arizona in behalf of himself and other note contract holders to oust the old officers of the Company and put in a new management. At the time of the trial of this case he was president of the Company. On February 15, 1941, the Company filed a voluntary petition in bankruptcy in which it scheduled among its liabilities an indebtedness to Rehg of $4,238 as of the date of May 1, 1938, and showing taxes due the federal government, the state of Arizona and Cochise county, and showing liabilities to many other creditors. It is conceded in the state’s brief that the Company was insolvent. Rehg also took up with various departments of the federal government what he regarded as wrongs of the Company and its officers, with at least two results. The Bureau of Internal Revenue, after investigating the affairs of the Company, determined there was due and owing the federal government from the Company taxes with penalties and interest in the sum of $4,383.27, and on August 13, 1940, notified Rehg of that fact, and that the same was a lien upon all the property of the Company in the possession or under the control of Rehg and upon any sum he owed the Company. On May 29, 1940, U. R. (Bert) Miller, T. C. (Clyde) Miller, and Charles (Chuck) Miller were indicted in the federal district court of Kansas, the indictment containing eleven counts charging fraud and a scheme to defraud respecting many matters pertaining to the Company, including the plan for the raising of $25,000 in Kansas by the note contracts. On December 15, 1941, each of the defendants entered a plea of guilty to this indictment. (The record is not clear whether this was the same indictment on which the same parties were tried and convicted and their convictions reversed by the United States Circuit Court of Appeals, see Miller v. United States, 120 F. 2d 968, for errors respecting the admission of evidence and in the giving of instructions.)
In the meantime the Company, on May 10, 1939, prepared and served upon Rehg a demand in the form of a letter which reads:
“At a regular meeting of the Board of Directors of The Keystone Copper Mining Company held May 9, 1939, the following Resolution was adopted:
“ ‘Whereas, the contract with Norman Rehg terminated according to its terms, and the Board of Directors, on May 18, 1938, requested the President to notify him to turn over to the Walnut Valley State Bank of El Dorado funds of the Company in his hands, and whereas said demand was made by registered letter May 19, 1938, and
“‘Whereas, said Norman Rehg has refused to account for said funds received from the sale of contracts amounting to 81,300;
“ ‘Be it resolved, that the President of the Company be ordered to make a further demand that said funds be deposited with the Walnut Valley State Bank at once, and upon the failure of Norman Rehg to do so that he be authorized to take all legal steps necessary to collect same.’
“In view of this resolution, I hereby request and demand that you immediately deposit in the Walnut Valley State Bank at El Dorado, the 81,300 you have of the Keystone Copper Mining Company, said funds to be deposited in the name of the Company.
“I would also like an accounting of any other funds you may have of the Company.
.“Yours truly,
(Signed) “The Keystone Copper Mining Company,
“By: U. R. Miller, President.”
On August 5, 1939, the complaint on which this prosecution is based was filed, which charged Rehg with the embezzlement of $1,300 of the money of the Company. After a preliminary examination, at which U. R. Miller testified, he was bound over for trial to the district court. Later an information was filed which charged that Rehg, being the financial secretary of the Company, had taken into his possession money and property of the Company of the value of $1,300, of which sum $130 was due him as his lawful fee, charges and commission, and that the balance thereof, $1,170, was the property of the Company, and that defendant feloniously retained and embezzled said sum of money although demand for the return of the same had been made by the Company on May 19,1938, and on May 10, 1939, and that the sum of $1,300 mentioned represented the sum of $500 paid Rehg by Metta Robb as the purchase price of a note contract, and the further sum of $800 paid him by J. W. Starkey as the purchase price of a note contract. There appears to have been a trial of the case which resulted in a mistrial. The trial from which the appeal was taken was begun July 8 and concluded July 13,1942. The motion for a new trial was overruled and sentence was imposed on August 7, 1942. • •
In the trial of the case the state’s evidence adhered very closely to the view that the only matters of importance were the fact that Rehg was the financial secretary of the Company, that he sold these two note contracts as charged, that the Company had made demands upon him for the proceeds, and that he had refused to turn the money over on such demands. Defendant, as a witness in his own behalf, told the story of his connection with the Company much more in detail than the brief summary hereinbefore given and offered additional evidence to support his position. He admitted receiving the $500 from Metta Robb and $800 from J. W. Starkey and testified much more in detail than the summary above respecting his connection with the company, the representations made to .him at the time he undertook to raise $25,000 in Kansas on the note contracts, and how he later found that most of the material representations made to him were false. The court took the view that what Rehg learned after demand was made upon him for the money could not affect his action in refusing to turn it over, and therefore was inadmissible. Perhaps because the evidence was quite incomplete respecting the delivery to Rehg of the letter of May 19, 1938, demanding $1,300, and which Rehg testified he never received, the court admitted most of the evidence offered on defendant’s behalf respecting what he learned of the fraudulent conduct of the officers of the Company prior to the demand of May 10, 1939, which defendant conceded he received. Evidence of the fact that the Company went into bankruptcy in 1941 listing an indebtedness to Rehg as of May 1, 1938; the fact that the Millers pleaded guilty on December 15, 1941, to the indictment charging them with fraud which involved the sale of the note contracts in Kansas, and other court proceedings, being information received by Rehg after May 10,1939, was excluded, as was also evidence of facts learned by Rehg, or which occurred, after that date. Most of this excluded evidence was offered by defendant on his motion for a new trial, and quite a little of it was documentary and mentioned in our general statement of facts.
Appellant complains of various rulings on the admission of evidence. We shall notice these only to say it was error to exclude evidence of things which occurred and facts learned by Rehg after May 10, 1939, and which tended to show false representations and fraud of the officers of the Company prior to the time the note contracts in question were sold and of which Rehg had some information on May 10, 1939, which information was confirmed by later events and by information later obtained.
Defendant requested instructions embodying these ideas: That Rehg was entitled to assume the representations made to him by the officers of the Company at the time of his employment respecting the Company’s financial condition were made in good faith and to rely upon them in selling the note contracts; and when he learned such representations were false he was entitled to cease his efforts on behalf of the Company and justified in refusing to deliver funds to the Company which he had secured by the use of such fraudulent representations; that if the Company was indebted to Rehg he would be justified in holding funds in his hands belonging to the Company to the extent of such indebtedness, and that doing so would not constitute a crime; that Rehg owed certain duties to J. W. Starkey and others who had confided in him and given him power of attorney to make investments, which should be taken into account; that if at the time a demand was made upon Rehg he withheld money belonging to the Company under a claim of right to do so pending an adjustment or determination of such right he would not be guilty of embezzlement. Defendant also requested instructions outlining his rights and duties under the resolution or contract of March 5 [12], 1938. None of these points was covered in the instructions given. We think it was error not to give an appropriate instruction on each of the points. They embodied in the main Rehg’s defense, which he was entitled to have go to the jury.
The instructions given by the court followed closely the theory of the state in the prosecution, namely, that if the money procured by Rehg from Starkey and Robb upon the note contracts belonged to the Company, and if Rehg withheld it after a valid demand, he would be guilty of embezzlement. The jury were told that:
“. . . Mismanagement of the property or funds of the Keystone Copper Mining Company by its officers, or the improper conduct of the officers of said company, or the failure of said company to have the title to said property as stated by some of said officers, or any wrongful acts of any of the officers of the company, if the evidence proved such was the case, is not a legal defense to the offense of embezzlement charged in the information . . . but . . . has been introduced and submitted to you for the purpose of enabling you and assisting you in determining whether or not the defendant in this case had any intent to convert the said property or money to his own use, . . .”
We think the theory on which the court instructed the jury and the limitation placed upon the evidence by the instruction quoted were erroneous. The result of our views respecting instructions refused and given would be to require a new trial. We shall not dwell upon them at length, however, for another question is raised which goes to the very heart of the prosecution.
The prosecution was under that part of G. S. 1935, 21-545, which provides:
. . if any agent shall, with intent to defraud, neglect or refuse to deliver to his employer or employers, on demand, any money, . . . which may or shall have come into his possession by virtue of such employment, . . . after deducting his reasonable or lawful fees, charges or commissions for his services, unless the same shall have been lost ... or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished. . . .”
In the information Rehg’s relation to the Company was described as “being an agent, to wit: financial secretary” of the Company, and it was charged that as such agent certain monies, $1,300, came into his hands, of which he was entitled to retain $130 as his commission, “the balance thereof, to wit: $1,170, being . . . the property and monies” of the Company, and that “without the assent” of the Company Rehg feloniously converted the money to his own use, “although demand for the return of said monies, . . . was made ... on the said 19th day of May, 1938, and on the 10th day of May, 1939, . . .” While the term “financial secretary” was used in the information and at places in the testimony it appears to have been nothing more than a title which he was given, or assumed. It is not used in his contract with the Company of December 7, 1936, and from the evidence it appears Rehg had nothing to do with the general financial affairs of the Company prior to May, 1939, other than to carry out his employment to borrow money for the Company in Kansas on its note contracts. The case was tried on the theory that a proper demand under the statute above mentioned was necessary to be shown before a conviction could be had, and the court specifically so instructed the jury and referred to the demand at several places in the instructions.
Appellant contends that neither of the alleged demands of May 19, 1938, and May 10, 1939, as shown by the evidence was sufficient upon which to base the prosecution, and further contends that under the agreement between Rehg and the Company of March 5 [12], 1938, Rehg was lawfully in charge of the money; that the Company had no right to demand more than $500 at any one time and then only if the daily reports of the operations of the mine and the use the Company was making of money being turned over to it by Rehg showed the money was being used for the purpose for which it was raised, and with respect to that it is contended that Rehg was entitled to exercise some judgment and discretion.
Our cases dealing with demands under this statute clearly show that the demand should be for the amount due and it should be at least reasonably clear and specific. (See State v. Hayes, 59 Kan. 61, 51 Pac. 905; State v. Pierce, 7 Kan. App. 418, 53 Pac. 278; State v Eastman, 62 Kan. 353, 63 Pac. 597; State v. Eary; 121 Kan. 339, 343, 246 Pac. 989; State v. Rush, 138 Kan. 465, 26 P. 2d 581, and State v. Taylor, 140 Kan. 663, 38 P. 2d 680.) But the demand relied upon by the state was for $1,300, when it is conceded that the most due was $1,170. If it were essential to determine the question we would feel compelled to hold that the evidence was insufficient to show that the so-called demand of May 19, 1938, was ever mailed or otherwise delivered to Rehg. Mr. Blood testified that he dictated it in his office in the' presence of U. R. Miller, president of the Company. His secretary testified that she took the dictation and typed the instrument, placed it in an addressed envelope and gave it to Mr. Miller, who was supposed to sign and mail it. Miller was not present at this trial, although the state had caused a subpoena to be served upon him in Arizona. His testimony given at the preliminary examination was used, and the county attorney was frank to advise the court in the trial of this case that Mr. Miller could not remember mailing the demand Mr. Blood further testified that it was his “understanding” that it was to be sent by registered mail, and he remembered that a few days later a return card for registered mail, signed by Rehg, came to his office, but he did not know what had become of it nor what had been registered to Rehg. Rehg testified he had never received it. Obviously, the Company did not rely upon it solely, if at all, for almost a year later they made another demand. This, however, contained within it a request for an accounting. The evidence clearly discloses that at that time the Company owed Rehg $1,500, plus interest, on a note contract, and also tends to show that the Company was otherwise indebted to Rehg in a much larger sum. For the Company to say to Rehg: “Turn over to us $1,300, then let us have an accounting,” when the most Rehg owed on the transaction in question was $1,170, and the Company owed him much more, cannot be held to be a sufficient demand for money due.
But, passing all these imperfections of both of the above-mentioned demands, it must be noted that neither of those took into consideration the agreement between the parties of March 5 [12], 1938. The evidence discloses the same had been made because complaints had been made by Rehg of the improper use by the Company of money turned .over to it on the proceeds of the note contracts. It evidenced an entirely different method of handling business thereafter. By this contract “the balance of the funds obtainable from the twenty-jive thousand dollar ($25,000.00) loan” was to be used for placing the mill and concentration plant in operation, to the immediate end that regular smelter return checks might be received by the Company, “and that the balance of the fund shall be held upder control by . . . Rehg, and shall be advanced in denomination of jive hundred dollars ($500.00) as needed, . . . subject to reports showing satisfactory performance of work at the Company’s mines. . . .”
This is the contract the parties were working under when Rehg delivered the note contracts to Starkey and to Robb. There is no evidence it was ever abrogated. Under it the Company had no authority to make a demand on Rehg at any time for more than $500, and then only as the money “was needed,” as based upon reports of its satisjactory use, and under it in the meantime Rehg was entitled to hold in his possession and control money obtained for the Company on the note contracts. The result is that the Company had no right or authority to make a demand upon Rehg in May, 1938, or in May, 1939, for $1,300, or for $1,170. Such demands, as made, were legally insufficient to form the basis of a prosecution for embezzlement under the statute. What the Company did have was a right to an accounting, which it requested May 10, 1939. There is no contention on the part of the state that a request for an accounting, even if refused, would form the basis for a criminal prosecution.
Since neither of these demands was legally sufficient, and.such a demand is essential before a prosecution under the statute will lie, it seems clear to us that there can be no successful prosecution under the information. Hence, it would be futile to remand the case for a new trial. The judgment of the court below should be reversed with directions that defendant be discharged. (G. S. 1935, 62-1717; State v. Fisher, 140 Kan. 511, 520, 38 P. 2d 115.) It is so ordered.
Parker, J., not participating.
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The opinion of the court was delivered by
Hoch, J.:
This is a workman’s compensation case growing out of the death of an oil-field worker. Claims were filed by two sets of claimants, and four companies or individuals were named as respondents. The commissioner and the district court, upon appeal, made an award in favor of both sets of claimants but against only one of the respondents. The respondent company against which the award was entered appealed on the sole ground that the judgment should also have been against one of the other respondents. It did not attack the award as far as the claimants were concerned. There is also a cross appeal — more accurately an independent appeal— by one set of claimants against the other set of claimants. The claimants do not complain that the award was against only one of the respondents.
Ralph N. Carrington, an experienced oil-field worker, was killed in an accident while working at a well in Stafford county, Kansas, on January 20, 1942. One application for compensation was filed by Opal Carrington, the widow, and her four minor children, and another by two minor children of the deceased by a former marriage — Thelma, agedT4, and R. J., aged 11, action being brought in their behalf by J. E. Wyatt, their grandfather and next friend.
In both applications four companies or persons and their insurance carriers were named as respondents. The principals were: (a) British American Oil Producing Company, which owned the oil and gas lease; (b) The Harbar Drilling Company, which had a contract with British American to drill a well; (c) Ray Coffey (Coffey Drilling Company), who had rented a “cable front,” a piece of equipment, to Harbar for the purpose of drilling out the well plug; (d) D. H. Cook & Company, a concern engaged in the business of servicing wells under certain conditions — particularly furnishing men and equipment for running tubes and rods after wells had been drilled.
It is agreed that all respondents were under the act, that the accident arose out of and in the course of the employment, and no complaint is made as to the amount of the award.
The trial court found — following substantially'the findings of the commissioner — that the deceased was the employee of Cook & Company and was working for them when the accident occurred; that the other respondents were not liable; that both sets of claimants were dependent upon the deceased for support. An award of $4,000 was divided, $1,500 going to the widow, $2,000 to her four children, and $500 to the two minor children by the former marriage.
We first consider motions to dismiss Cook & Company’s appeal. One such motion, by British American and Coffey, is based on three grounds: first, that appellant’s abstract and brief were not timely served upon them; second, that appellant’s abstract does not include a specification of errors complained of; and third, that no relief is asked against them and no issue presented concerns them. Another motion to dismiss, by Harbar, is based on the first and second grounds above stated.
We note briefly the first ground, asserted, for dismissal. No abstracts or briefs having been filed at the time this appeal was originally set for hearing in March of this year, respondents filed a motion to dismiss the appeal. The motion was overruled, the hearing set for May 5, and the appellants given until April 23 to serve copy of abstract and brief. Such copies were served on April 28, which was five days late. However, we prefer to pass to the third and more important ground for dismissal asserted by British American and Coffey.
Brief of appellant plainly shows that the only relief it seeks is against the Harbar Drilling Company. Its only complaint is that the court found it to be an independent contractor and sole employer of Carrington and refused to find that Carrington was also working, at the time of the accident, as a special employee of Harbar, the well drillers. Since no relief is sought against British American, owner of the oil lease, or against Coffey, who had rented some equipment to Harbar, and no question as to their liability is either briefed or argued, the appeal must be considered abandoned as to them and will be dismissed. (Tawney v. Blankenship, 150 Kan. 41, 45; 90 P. 2d 1111 and cases cited.)
We next consider the failure of appellant to comply with rule 5 of this court, which provides:
“The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.” (153 Kan. XI.)
In the recent case of Lambeth v. Bogart, 155 Kan. 413, 415, 125 P. 2d 377, it was said:
“The rule (rule 5) has been printed repeatedly in various volumes of the Kansas reports. It is clear and is designed to promote definiteness, fairness and orderly procedure on appellate review. Specifically, its purpose is to advise both appellee and this court concerning the particular error, or errors, which appellant claims the trial court committed in rendering its judgment. All that the instant abstract contains is a notice that appellant appeals from the last judgment rendered. Of course, a notice of appeal does not constitute a specification of errors. It merely discloses that appellant objects to the judgment and that he appeals to this court.”
While we have no dispostion to weaken the emphasis repeatedly placed upon the soundness of the rule and the need for its observance, it is only fair to say that in this case appellant’s abstract and brief were filed and presumably served upon opposing counsel on the same day, and that the alleged errors complained of are stated in the brief. Accordingly, it cannot be said here as in some other 'cases that appellees were not actually apprised of the contentions which they would be called upon to answer. Without condoning appellant’s failure to observe the rule, we shall consider the appeal upon its merits.
The lower court, trier of the facts, went thoroughly into the question of whether Cook & Company was an independent contractor and as such was the employer of Carrington, and whether Carrington was also at the time an employee, special or otherwise, of any of the other respondents. In extended findings of fact it reviewed the evidence, including the testimony of Mr. Cook, in charge of Cook & Company, and of Mr. Whipkey, who was one of their three employees working on the job when the accident occurred. We need not extend this opinion by inserting in full the court’s findings. The conclusion was as follows:
“From the foregoing, this court is convinced that Tam Whipkey was the foreman, acting for Cook & Company, in the control of the unit Cook & Co. sent to work on this job, and that Tam Whipkey had full charge and control of this unit, which included the deceased, Ralph N. Carrington, and the court finds that Cook & Co. were in fact, independent contractors in the running of the tubes and rods in this well, and that Cook & Co. and their insurance car rier are liable for compensation to the dependents of the deceased, and the court finds that none of the other respondents are liable for compensation.”
District courts, upon appeal from decisions of the compensation' commissioner under the workmen’s compensation act, weigh the evidence, but this court is limited, upon review, to questions of law (G. S. 1935, 44-556). Whether a finding is supported by evidence presents a question of law as distinguished from a question of fact. (Williams v. Cities Service Gas Co., 151 Kan. 497, 503; 99 P. 2d 822, and cases there cited.)
The record, carefully examined, clearly discloses that the findings of the trial court, above stated, are abundantly supported by competent, substantial evidence. Under the rule frequently stated, that we do not weigh conflicting evidence (Brown v. Olson Drilling Co., 155 Kan. 230, 231, 124 P. 2d 451, and cases there cited), it follow" that the judgment holding Cook & Company liable and Harbar Drilling Company not liable, must be affirmed.'
It may be noted, before passing to other questions, that appellants made no contention here that Harbar Drilling Company is liable under the provisions of G. S. 1935, 44-503, which relates to subcontracting, and nothing here said involves any interpretation of that section. - Furthermore, as heretofore stated, the claimants took no appeal from the finding that Harbar Drilling Company was not also held liable and make no complaint’about it.
We come to the independent appeal of Mrs. Opal Carrington and her four minor children. Appellants say that the only question presented is “whether or not under the workmen’s compensation law the dependency of the two children by a former marriage of the deceased workman had a practical, substantial value sufficient to form the basis of the award of $500 to them.” Out of the total award of $4,000 the widow was given $1,500 and each of her four children $500 apiece. They complain that the two minor children by a former marriage were awarded $250 apiece. This is essentially a “fact” case and we do not find it necessary to review at length the evidence upon which the trial court made its finding of dependency as to the two minor children by the former marriage. The facts — amply disclosed by the record — were succinctly stated by the court, as follows:
“Taking up the other question involved, to wit, whether or not Thelma Maud Carrington and R. J. Carrington, minors, are entitled to participate in the award. The court finds that the deceased Ralph N. Carrington and his wife, Alta May Carrington, after they were married, had two children, namely, Thelma Maud Carrington, now 14 years of age, and R. J. Carrington, now 11 years of age; that Ralph N. Carrington and Alta May Carrington were divorced, and about the time of the divorce, Alta May and the deceased took their two children to J. E. Wyatt, the father of Mrs. Carrington, and stated that they wanted to leave the children with him, and that they would contribute to their support. Mr. Wyatt accepted the children and looked to Alta May and to Ralph Carrington for pay. He has taken excellent care of the children, was on friendly terms with the deceased Ralph N. Carrington, and the only reason he didn’t receive any payment from Ralph N. Carrington, or sue Ralph N. Carrington for the support of the two children, was because up until the time Ralph N. Carrington was employed by Cook & Co., Wyatt knew that Cari'ington had no money with which to pay. J. E. Wyatt took excellent care of the children, and has been treating them as his own, and giving them the same care and support as he would have given his own children. The court finds that while Ralph Carrington never made any payment on his contract with Wyatt, Wyatt was supporting the children under an oral contract with Carrington, the father, and the children are therefore being supported on the credit of their father, Ralph N. Carrington.”
The court further found.that the widow and her children “were totally dependent upon'the deceased workman for their maintenance and support, as were also the two children by his former wife.”
Appellants make much of the word “totally” used by the court as applied to the dependency of the two children by the former marriage, contending that in no event could these minor children be considered wholly dependent upon the deceased. A similar contention was made upon a state of facts substantially like what we have here, in the case of Wade v. Scherrer & Bennett Const. Co., 143 Kan. 384, 54 P. 2d 944, and the contention rejected. In the opinion our statute was carefully analyzed and pertinent decisions of this and other jurisdictions thoroughly reviewed. We need not repeat what was there said.
The word “dependents” as defined in the workmen’s compensation act(G. S. 1935, 44-508 [j]) “means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident.” (Italics supplied.) Independent of the oral agreement of the father — referred to in the court’s findings— to help support the two children by the first marriage, a legal duty to do-so rested upon him. There was ample testimony to support the finding of the dependency and an award of only $250 apiece for these minors, and under the rule heretofore stated the findings and judgment will not be disturbed.
It follows that (a) The appeal of Cook & Company must be dismissed as to the British American Oil Producing Company and its insurance carrier, the Standard Accident Insurance Company, and as to Roy Coffey, doing business as the Coffey Drilling Company, and his insurance carrier, the Employers Mutual Casualty Company; and (6) in all other respects the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is whether proceedings to establish a claim against a decedent’s estate were barred by the provisions of the probate code.
There is no dispute of fact. G. F. Grattan, a resident of McPherson, Kan., died August 30,1941, and on September 4,1941, a petition was filed for probate of his will. On September 26, 1941, Paul E. Sargent was appointed as special administrator, the appointment to remain in force until letters testamentary or of administration were granted or unless sooner revoked by the court. The will was admitted to probate on November 4, 1941, and on November 6, 1941, Jay Crumpacker was appointed as executor. He duly qualified, and notice of his appointment was first published on November 6, 1941, subsequent publications being made on November 13 and 20. On November 7, 1941, adverse parties appealed to the district court from the order appointing Crumpacker as executor, and on January 16, 1942, the appointment of Crumpacker was affirmed by the district court. On February 24, 1942, Sargent paid to Crumpacker all of the money and property in his hands and was discharged. On March 9, 1942, the adverse parties filed a notice' of appeal to the supreme court from the Judgment of the district court of January 16, 1942. Later arid on November 7, 1942, the' appeal was disposed of in this court, which directed that Crumpacker’s appointment be set aside and that Ernest F. Pihlblad be. appointed as executor. (See In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580.) Thereafter and on January 2, 1943, the probate court appointed Ernst F. Pihlblad as executor, and he duly qualified and published notice of his appointment under dates of January 6, 13 and-20, 1943.
In the interval between this court’s reversal of the trial court on the Crumpacker appointment .and the later appointment .of Pihlblad as executor by the probate court, and on November 30, 1942, Emma Howes Hutchinson,: Marie Howes Holbert and' Charles E. Howes filed in the probate court their petition for the allowance of a demand against the estate,' and also a petition alleging there was no validly appointed executor or administrator and asking for the appointment of a special administrator in order that they might present their claim. The petition for allowance-.of demand alleged a part of the history of the estate and that G. F. Grattan had orally agreed with Lou Howes Grattan that if she would not make a will leaving her property to the petitioners he would either give or leave to each of the petitioners the sum of $10,000, and that Lou Howes Grattan accepted the promise of G. F. Grattan and refrained from making such a will, and that G. F. Grattan failed 'to pay such moneys to petitioners in his lifetime and failed and neglected to make any such provision in his will, to the damage of each petitioner in the sum of $10,000. They asked to be allowed $30,000 and interest from the date of his death. To this petition the executor and the residuary legatees under the will answered, denying all allegations of the petition not admitted. The admissions concern death of Grattan, admission to probate of his will, appointment of Crumpacker as executor and that he published notice of his appointment. The executor and residuary legatees further answered that petitioners knew and had actual knowledge of Grattan’s death; that his will was admitted to probate; that Crumpacker had been appointed as executor and had published notice of his appointment; but notwithstanding had not filed their claim- for more than one year after admission of the will to probate and appointment of the executor and the same was barred by the statute of limitations. The probate court disallowed the .claimants’ demand and they appealed to the district court. In the district court the executor and residuary legatees filed their motion for judgment on the pleadings on the ground they disclosed the claim was barred by the statute of nonclaim in that it was not exhibited within nine months after the date of first publication of notice to creditors; that the claimants did not within one year after the death of Grattan ask for the appointment of an executor or administrator for the purpose of filing their claim, and that more than one year had elapsed after the death of Grattan before the claim was filed or exhibited; that the claim was barred by the statute of limitations and that it was barred by the statute of frauds. On the hearing the district court sustained the motion and rendered judgment for the executor and residuary legatees. In due time the claimants appealed to this court, their specifications of error and brief covering the matters hereafter discussed.
Inasmuch as all questions herein arise under the probate code (G. S. 1941 Supp., ch. 59) we shall hereafter refer only to the chapter and section numbers.
Primarily two sections of the probate code are involved in the present appeal. The first is 59-2239, which for our purposes reads as follows:
“All demands . . . against a decedent’s estate . . . not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment. ... No creditor shall have any claim against or lien upon the property of a decedent . . . unless an executor or administrator of his estate has been appointed within one year after the death of the decedent and such creditor shall have exhibited his demand in the manner and within the time herein prescribed.”
The gist of appellants’ contention the trial court erred in holding their claims were barred by the nonclaim statute is that Grattan’s will was admitted November 4, 1941, and Crumpacker was appointed executor on November 6, 1941, and published notice of his appointment on November 6, 13 and 20, 1941; that appeal from his appointment was taken to the district court on November 7, 1941, the effect thereof being to suspend operation of the order by reason of 59-2407 which provides, in part:
“Effect of appeal. . . . the appeal shall suspend the operation of the order . . . appealed from until the appeal is determined. ...”
that after the appeal was determined the judgment on appeal was not certified to the probate court as required by 59-2409, until December 28, 1942, at which time the probate court was directed to appoint Pihlblad as executor; that Pihlblad was so appointed by the probate court on January 2, 1943, and published notice of his appointment on January 6, 13 and 20, 1943, and their demand having been filed on November 30, 1942, it was not barred.
Appellants first contend that an executor may not publish notice of his appointment after the order of appointment has been appealed. They quote 59-2407, which provides the appeal suspends operation of the order appealed from and argue, in effect, -that when the appeal was taken all authority of the executor was withdrawn. That is not what the statute says. The appeal does not revoke the order, it only suspends its operation after appeal is taken and until it is determined. Prior to the taking of the appeal his acts are valid. Such a construction not only follows from the language of 59-2407, but is consonant with 59-1713, which provides:
“All the acts of a fiduciary as such, before the termination of his authority, shall be as valid to all intents and purposes as if such fiduciary had continued lawfully to execute the duties of his trust.”
And it must be borne in mind that the appeal was not from the probate of the will or from the appointment of the special administrator, but only from the appointment of Crumpacker as executor, and while it was pending the estate continued in process of administration. The effect of the appeal was not to take all jurisdiction from the probate court — that jurisdiction continued as to all phases of the administration other than the appointment of an executor.
Appellants next contend that in order to start the nine months limitation on presentation of claims three published notices must be made by the executor under a valid and continuing order of appointment. In support of this contention appellants direct our attention to a provision of our former statute with respect to decedents’ estates requiring notice of hearing of a petition for the sale of real estate (G. S. 1935, 22-805) and to our decision in Graden v. Mais, 77 Kan. 702, 95 Pac. 412, in which it appeared no notice was given, and to cases involving sufficiency of affidavits for service of summons by publication or of the publication following or of notices prerequisite to sheriff’s sales, the effect of which is that matters preliminary to notice must be fully complied with and the notice must be published the full time required by statute. We need not review these cases for there is no doubt they state the law applicable to the facts involved in them. Argument based on those cases, however, ignores the language of our nonclaim statute. Under it the statute starts to run, not from the completion of publication of the notice to creditors but from the date of the first published notice to creditors, and that it was here given is conceded. It is here noted that if appellants’ contention that the nonclaim statute was not effective until the appointment of Pihlblad and the first publication of his notice of appointment followed by two other publications, then they filed their claim prematurely. The very fact that in November, 1942, they filed a petition setting forth their claim and on the same day filed their petition asking for the appointment of a special administrator so that it might be heard, shows that at that time they knew and considered the estate was in process of administration and the probate court had jurisdiction to entertain the question. And it further shows that if the petitions were then proper, they could have been filed at any time within one year after Grattan’s death or within nine months after Crumpacker first published notice of his appointment as well as when they were filed. Insofar as the nonclaim statute is concerned, appellants must either recognize that administration was pending, and that Crumpacker’s appointment and publication of notice thereof was effective until suspended by the appeal, in which event they are bound because they filed no petition for allowance of their claim within nine months, or that there was) no executor or administrator appointed within one year from Grattan’s death and they have no claim against his estate for that reason. On the latter phase see In re Estate of Dumback, 154 Kan. 501, 119 P. 2d 476, where it was held:
“Under the Kansas probate code no creditor shall have any claim against the property of a person dying intestate unless an administrator of the decedent’s estate has been appointed within one year after his death and unless the creditor shall have exhibited his demand in the manner and within the time prescribed in the code. (G. S. 1939 Supp. 59-2239.)” (Syl. U 1.)
In their brief appellants devote no space to the nature of the claim presented by them. It is quite apparent, however, that it is in the nature of an action to compel performance of an agreement to make a will or for the property that they would have received had the will been made. Under our decisions in Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242, Swisher v. Bouse, 155 Kan. 797, 130 P. 2d 565, and the cases cited therein, the proceeding was one in the nature of a contest of the will. So considered, the petition, having been filed over nine months after the will was admitted to probate, was filed too late. (59-2404.)
The judgment’of the trial court was correct and it is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order overruling defendant’s motion to set aside as void certain orders made against the defendant in the trial of a previous case.
The defendant perfected an appeal to this court from each of those orders in the previous case. The decision of the trial court was affirmed by this court in Hall v. Eells, 155 Kan. 307, 124 P. 2d 444. No petition for rehearing was filed and the decision has, of course, become final.
The abstract in the instant case contains no specification of errors as required by rule 5 of this court. Furthermore, the abstract contains nothing which can form an adequate basis for the instant appeal or upon which this court could predicate a reversal if the appeal were otherwise properly before us.
The appeal is dismissed.
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The opinion of the court was delivered by
Harvey, J.:
This was a foreclosure action. The point involved is the right of a junior creditor to redeem.
On March 31, 1941, the Federal Land Bank, hereinafter called the Land Bank, filed an action upon notes executed to it by Joseph W. Ludwig and wife and to foreclose a mortgage executed by them to plaintiff to secure the payment of the notes. The Federal Farm Mortgage Corporation, hereinafter called the Mortgage Corporation, the holder of a second mortgage upon the real property, was made a party defendant. Personal service of summons was had upon the mortgagors. The Mortgage Corporation filed its answer and cross-petition setting up the notes and mortgage executed to it by the Ludwigs and asking that its mortgage be foreclosed and that it be adjudged to have a lien upon the property second only to that of plaintiff. The Ludwigs, although duly served with summons, made default. On July 21, 1941, judgment was duly entered for plaintiff for $7,772.82 and for the foreclosure of its mortgage. On October 10, 1941, judgment was duly entered in favor of the Mortgage Corporation for $4,838.90 upon its note and for the foreclosure of its mortgage as a lien second only to that of plaintiff. An order of sale was issued and the land was duly advertised and sold November 17,1941, to the plaintiff for the full amount of its judgment, interest, taxes and costs. The sale was confirmed December 5, 1941.
On February 15,1943, the Mortgage Corporation paid to the clerk of the district court $8,532.94, being the amount for which the property was sold to plaintiff and all charges thereon paid by the purchaser, with interest, in accordance with the provisions of law, and the clerk of the court issued to the Mortgage Corporation a certificate of redemption from the sale to plaintiff. On the same date the Mortgage Corporation, by its proper officer, filed an affidavit stating that it was a junior lien holder and the owner of the judgment rendered October 10, 1941, for $4,838.91; that there was due it $5,164.85 as of that date, with interest thereafter at the rate of five percent, and the affidavit was made for the purpose of showing the amount due the Mortgage Corporation as redemptioner. On February 17, 1943, the mortgagors attempted to redeem by paying to the clerk of the district court the amount plaintiff bid at the sale, with interest. The Mortgage Corporation declined to accept that amount.
On April 9, 1943, the mortgagors filed a motion asking the court to set aside the certificate of redemption issued by the clerk of the court on February 15, 1943, to the Mortgage Corporation on the grounds and for the reasons: (1) That the same was issued and redemption permitted without authority of law; (2) that the Mortgage Corporation was one of the defendants in the action and did not bid at the sale; (3) that the Mortgage Corporation is not a general creditor with a lien upon the premises; (4) that the Mortgage Corporation was not one of the creditors with authority to redeem under the law. This motion was heard by the court and sustained on May 3,1943. The Mortgage Corporation has appealed from that judgment. There is no controversy about the facts as above stated.
The pertinent provisions of the sections of our statute (G. S. 1935, ch. 60) which control the matter are as follows:
“After sale by the sheriff of any real estate ... or order of sale, ... . if the real estate sold by him ... is subject to redemption, he shall execute to the purchaser a certificate containing a description of the property and the amount of money paid by such purchaser, together with the amount of the costs up to said date, stating that, unless redemption is made within eighteen months thereafter according to law, that the purchaser or his heirs or assigns will be entitled to a deed to the same: . . .” (60-3438)
“The defendant owner may redeem any real property sold under . . . order of sale, at the amount sold for, together with interest, costs and taxes, as provided for in this act, at any time within eighteen months from the day of sale as herein provided, and shall in the meantime be entitled to the possession of the property; . . .” (60-3439)
“For the first twelve months after such sale, the right of the defendant owner to redeem is exclusive; but if no redemption is made by the defendant owner at the end of that time, any creditor of the defendant and owner whose demand is a lien upon such real estate may redeem the same at any time within fifteen months from the date of sale. . . .” (60-3440)
“Creditors having the right of redemption may redeem from each other within the time heretofore prescribed, and in the manner hereinafter provided.” (60-3442)
“A junior judgment creditor or lien holder may redeem from a senior judgment creditor or lien holder ‘by paying . ... to the clerk of the district court the full sum due said senior creditor or lien holder, with interest and costs, and shall become thereby vested with full title to the judgment so redeemed from and to all liens of such judgment.” (60-3446)
“After the expiration of fifteen months from the day of sale, the creditors can no longer redeem from each other, but the defendant owner may still redeem at any time before the end of the eighteen months as aforesaid.” (60-3447)
“The mode of redemption as herein provided is by paying the money into the office of the clerk of the district court for the use of the persons thereunto entitled. The person so redeeming, if not the defendant owner in execution or order of sale, must also file his affidavit or that of his agent or attorney, stating as nearly as practicable the amount still unpaid due on his claim. The clerk shall give him a receipt for the money, stating the purpose for which it is paid. . . .” (60-3451)
“. . . The terms of redemption shall be in all cases the reimbursement of the amount paid by the then holder of the certificate of purchase, added to his own claim, and including all sums paid by him for taxes, insurance premiums, and interest or sums due, . . . together with costs, . . .” (60-3443)
“If the defendant in execution or order of sale, or his assigns, or the owner of said legal title, fail to redeem, the sheriff must, at the end of the redemption period herein provided, execute a deed to the person who is entitled to the certificate of purchase as hereinbefore provided or his assignee. . . .” (60-3457)
We feel confident that the ruling of the trial court was erroneous and that no authority need be cited for such a holding other than the statutes above quoted. The Mortgage Corporation had an adjudicated lien on this land. It was a judgment creditor holding a judgment junior to that of plaintiff. A few days before the expiration of fifteen months from the date of the sheriff’s sale, the defendant owner not having redeemed, the Mortgage Corporation redeemed from its senior judgment creditor in the manner specifically provided by the statute (60-3451) and filed an affidavit containing all that is required by that section.
In support of the ruling of the trial court it is argued on behalf of appellees that the Mortgage Corporation, being a party to the action, had no right to redeem; that authority to redeem applies only to creditors who are not parties to the action. We think that point is not well taken. Indeed, the right of one in the position of appellant to redeem within the period of twelve to fifteen months after the sale, if the defendant owner had not redeemed, is so clearly stated in the statute that in the fifty years since the statute was first enacted (Laws 1893, ch. 109) the specific contention to the contrary has not been made in this court. In Meyer v. Hurst, 109 Kan. 730, 201 Pac. 859, the right of such a party to so redeem was recognized, but it was held such right must be exercised within the time specified in the statute. The question has been discussed in cases where the defendant owner had redeemed within the first twelve months after the sale and the holder of the second judgment lien complained. (See Case v. Lanyon, 62 Kan. 69, 61 Pac. 406; Sigler v. Phares, 105 Kan. 116, 181 Pac. 628; Moore v. McPherson, 106 Kan. 268, 187 Pac. 884.) In each of those cases, and others which might be cited, the right of the junior judgment creditor to redeem within the period of twelve to fifteen months after the sale, if the defendant owner had not redeemed, was recognized. In some of those cases it was said, in effect, that if the junior judgment creditor desired to protect his lien, so it would not be cut off by the defendant owner redeeming within the time he had the exclusive right to redeem, he should bid at the sale. Naturally, that is true. In McFall v. Ford, 133 Kan. 593, 1 P. 2d 273, where it was held Mrs. Thomas was a junior judgment creditor with the right to redeem, it was said (p. 608): “She had the right to redeem, subject to the landowner’s preemptive right.'” (The dissent in the case was upon another point.) And in Frazier v. Ford, 138 Kan. 661, 27 P. 2d 267, where a similar question arose, it was said:
“Under the redemption law of this state land sold to satisfy a judgment may be redeemed by the landowner and by certain creditors. Within the first twelve months after sale the landowner has exclusive privilege to redeem. If redemption be not made within that period, any creditor whose demand is a lien may redeem within fifteen months from date of sale, . . .” (p. 663.)
Appellees cite an article in the Journal of the Bar Association of the State of Kansas, Vol. 10, p. 412, written by a student in the University of Kansas Law School, in which the author reaches the conclusion:
“Where a junior lienor, either a junior mortgagee or a judgment creditor, is joined as a party defendant in an action foreclosing a prior mortgage, he has no right to redeem under the Kansas redemption laws, . . .”
It is sufficient to say that this conclusion is contrary to the plain language of our statute. Our court has never so held. It is the practice of the editors of the Journal to publish papers written by the students of the law schools of Kansas and Washburn Universities, prepared in the course of their studies, but the editors do not assume any responsibility for the correctness of the arguments or conclusions therein and they are not binding or authoritative in any court. They are simply what they purport to be — papers prepared by students in the course of their studies, and are valuable for the purposes for which they are intended. We see no necessity of analyzing the article more extensively.
Appellees cite Federal Farm Mortgage Corp. v. Crane, 153 Kan. 114, 109 P. 2d 82, and Federal Land Bank v. Shoemaker, 155 Kan. 501, 126 P. 2d 205, and contend that under those authorities the appellant in this case had waived its lien. The contention cannot be sustained. In each of those cases the second mortgagee sought to retain its lien and be in the position of a junior judgment creditor without foreclosing its mortgage. The court held that could not be done. In this case the holder of the second mortgage foreclosed its mortgage and thereby obtained a judgment lien.
Appellees cite Lauriat v. Stratton, 11 Fed. 107 (1880), quoted from in the Shoemaker and Crane cases, in which it was said:
“The right of redemption is only given as a protection against a sale to which the redemptioner is not a party. . . .” (p. 113.)
That decision involved the then statutes of Oregon (Deady’s Statute, 1874), summarized in the opinion as follows:
“The Civil Code (sections 410-414) provides for the enforcement or foreclosure of the lien of a mortgage by a suit in equity in which the property subject to the lien ‘shall be sold to satisfy the debt secured thereby.’ Section 410. Any person having a lien upon the property subsequent to the plaintiff must be made a defendant in the suit. Section 411. When it is adjudged in such suit ‘that any of the defendants have a lien upon the property, the couft shall make a like decree in relation thereto, and the debt secured .thereby, as if such defendant were a plaintiff in the suit,’ and '‘such decree shall determine and specify’ the order in which ‘the debts secured by such liens shall be satisfied out of the proceeds of the sale of his property.’ Section 412.
“The decree, in the first instance, is enforced by means of-an execution ‘against the property adjudged to be sold,’ and if the decree is ‘in favor of different persons not united in interest,’ the execution can only issue upon their joint application, or by the order of the court upon the motion of either of them. When the decree is also in personam, as it may be where there is also a promissory note, or other personal obligation for the payment of the debt, and ‘the proceeds of the sale of the property upon which the lien is foreclosed are not sufficient to satisfy the decree as to the sum remaining unsatisfied, the decree may be enforced by an execution as in ordinary cases;’ and, in ‘such case,’ — that is, as to the portion of the decree not satisfied by the proceeds of the salé of the property, — the decree, if in favor of different persons not united in interest, ‘shall be deemed a separate decree, and may be enforced accordingly.’ Section 413. The decree has the effect to bar the equity of redemption, but the property sold thereon ‘may be redeemed in like manner and with like effect,’ as property sold upon a judgment, ‘and not otherwise.’ Section 414.” (pp. 109, 110.)
The Oregon statute, construed by the federal court in the Lauriat case, had one thing in common with our present statute, namely, the general purpose of the law was to enable the landowner to get the full value of his property for the payment of his debts; but the provisions for accomplishing that differ from ours. The Oregon statute required plaintiff in a foreclosure action to make all parties defendant who had any lien or claim upon the property. Our statute does not specifically do so, but our decisions encourage it. The Oregon statute required defendants having inferior liens to set them up, and the rights of each of the partiesi to be specifically determined in the decree. In effect our statute does the same thing, or the defendant by not setting up his claim and seeking an appropriate decree establishing his lien is held to have waived it. The Oregon statute, where two or more parties were adjudged to have liens, required the sale to be had upon the joint praecipe of the parties or an order of court. Our statute makes no such requirement. The sale may be had upon the praecipe of plaintiff, and if he bids at the sale the full amount of his judgment, taxes and costs, the sale price cannot be regarded inequitable as to him (G. S. 1935, 60-3463a). The Oregon statute specifically provided that the sale, at whatever price made, if confirmed, cuts off all the liens. No provision was made for redemption by any party to the action. Under our statute the sale cuts off all liens subject to redemption, as provided by law, and it specifically provides for redemption by a judgment creditor. So, the Lauriat case does not support the court’s ruling.
The judgment appealed from should be reversed with directions to overrule the motion. It is so ordered.
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from a judgment and decision of the district court of McPherson county, Kansas, on a motion to determine a question of law in advance of trial.
The facts required for a proper determination of the legal question involved may be stated briefly: G. F. Grattan died a resident of McPherson, Kan., on August 30, 1941. He executed a written will on August 9, 1941, and he made a nuncupative will at 8 o’clock p. m. on August 27, 1941. No attempt was made by the testator to revoke the written will prior to his death unless it can be said the nuncupative will had that effect. Both wills fully complied with the provisions of our statute authorizing their execution and no contention is made that either possessed any inherent legal infirmity.
One phase of this case has been before this court and is reported in In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580. Many facts, not important to our decision, can be found in the opinion in that case. Also set forth in that opinion at pages 841 and 842 are pertinent provisions of the written will, and at pages 842 and 843 thereof, in toto, the provisions of the nuncupative will here involved. Both wills were filed in the probate court of McPherson county, and on November 4, 1941, the probate court entered its order admitting the written will to probate and refusing to admit to probate the nuncupative will. From this decision, or at least from that part refusing to admit the nuncupative will to probate, a situation which we do not and cannot determine because there seems to be some dispute between the parties and it is not definitely disclosed by the record, Bernadine Grattan, the appellant in the instant proceeding, appealed to the district court of McPherson county. Shortly after the appeal reached that court the executor of the G. F. Grattan estate, Bethel College, Bethany College and McPherson College, the appellees herein, filed their motion to determine three questions of law under G. S. 1935, 60-2902. The district court agreed to and did pass upon one of the questions of law included in such motion but refused to pass upon the other two and they will not be hereafter referred to inasmuch as error is not predicated .upon such refusal. The question of law submitted for determination was as follows:
“Where a testator makes, executes and declares a valid written will making disposition of all of his property, may he subsequent thereto make a nuncupative will or codicil revoking or altering such written unll?”
In due time the ruling of the trial court was stated in writing and filed as a part of the record. Its declaration of law on such question as submitted read:
. . A nuncupative will if executed pursuant to G. S. 1941 Supplement 59-608, is valid, but such a will when executed does not revoke, alter, or change the terms of a prior written will. The terms of the nuncupative will will be carried out.only so far as they do not revoke, alter or change the terms of a prior written will. Both wills are valid; the terms of each will will be carried out; however, if the terms of the nuncupative will are contradictory to the terms of the written will, then the written one will govern.”
Commenting upon its purpose in making such declaration of law, and its effect when so made, the trial court in its written statement said:
“It is the opinion of the court that when the declaration of law is made that there is no purpose in making a finding as to the application of that rule of law with reference to the facts in issue, the purpose being to declare the law of the state of Kansas so far as the trial court is concerned, the application of which shall be made when, as and if the evidence is presented.”
The appeal here is from the trial court’s declaration of law on the question submitted. Appellant’s sole assignment of error reads:
“The district court erred in its decision and judgment in determining the law question submitted in the motion to determine questions of law under section 60-2902, G. S. of Kansas, 1935.”
At the outset, in the light of some of the arguments made by counsel for the respective parties, this appeal can be simplified by directing attention to the question submitted and the purport of the declaration of law announced after such question had been given consideration. In fairness to the trial court it should be stated there was no trial of this case, hence, no occasion for it to weigh testimony or interpret the legal effect of the language to be found in either of the wills herein referred to. That same fairness also requires the statement that the question submitted did not raise the issue of whether the language used in the nuncupative will revoked or altered the terms of the written will. Quite to the contrary, an examination of its language impels the conclusion that it assumed the existence of a subsequent nuncupative will which sought to revoke or alter a written will and inquired as to the effect of such an oral will upon a valid written will. Having clearly in mind the question the trial court had under consideration, what was the import of its ruling? In our opinion it amounted to a finding that where a testator makes a valid written will making disposition of all of his property such testator may not subsequently thereto make a nuncupative will revoking or altering such written will. It is true that in explanation of that conclusion it was said both the written will and the nuncupative will were valid, that the terms of each will would be carried out, that insofar as the terms of the latter were contradictory to the terms of the former the written will would govern, and that the terms of the nuncupative will would be carried out only so far as they do not revoke, alter or change the terms of a written will: However, there is nothing in that lan guage to justify a conclusion that the trial court was attempting to prejudge the effect the language used in the nuncupative will had on the written will or the effect the language to be found in the written will would have on the nuncupative will. This conclusion is fortified by the express declaration, hereinbefore fully quoted, that so far as the trial court was concerned the application of the law announced would be made when, as and if evidence was presented. Nor does such language justify the conclusion that the question of a revocation of a former written will by a nuncupative will was not before the' court for determination. That was the precise question submitted and it was the exact question determined.
Wé now give our attention to the subject of whether the trial court’s declaration of law on the question submitted was correct under our statute and the decisions.
The pertinent provisions of our statute relating to wills are as follows:
“Every will except an oral will as provided in section 44 [59-608], shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.” (G. S. 1941 Supp. 59-606.)
“An oral will made in the last sickness shall be valid in respect to personal property, if reduced to writing and subscribed by two competent, disinterested witnesses within thirty days after the speaking of the testamentary words, when the testator called upon some person present at the time the testamentary words were spoken to bear testimony to said disposition as his will.” (G. S. 1941 Supp. 59-608.)
“Except as provided in section 46 [59-610], no will in writing shall be revoked or altered otherwise than by some other will in writing; or by some other writing of the testator declaring such revocation or alteration and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence by his direction.” (G. S. 1941 Supp. 59-611.)
In determining the construction to be placed upon the statutory provisions just cited we have no Kansas decisions to rely upon as a precedent, for in more than eighty years of appellate review this court has not been required to pass upon the question of whether, where a testator has made a valid written will making disposition of all of his property he may subsequent to the execution thereof make a nuncupative will revoking or altering such written will. We must, therefore, in our determination of such question rely upon the history and development of the early statutes pertaining to revocation of wills, on which ours was based, and the construction placed on them and later statutory enactments of similar character by text writers and courts of other jurisdictions.
Briefly, it can be said that originally under the ecclesiastical law and the common law a written will could be revoked by the oral declarations of a testator, the basic principle which both ecclesiastical and common law courts adopted on the subject of revocation in accordance with the testator’s intention being that the intention to revoke was the essential thing, and that the form of the act of revocation was immaterial. This loose method of revocation resulted in many bold attempts to defeat wills by false testimony concerning the declaration of the testator. The "bench and the bar of England were fully aware of the iniquities prevalent under such practice and as a result of their efforts there was enacted in 1676 the statute of fraüds (29 Car. II, ch. 3, §§ 6, 22), which pointed out explicitly the manner in which wills should be revoked. After the enactment of this statute a written will disposing of either real estate or personal property could not be revoked by mere parol. However, under this statute there was some dissimilarity in the procedure for revocation as between wills devising real estate and wills disposing of personal property. Later the statute of Victoria (7 Wm. IV, and 1 Vic., ch. 26, § 20), enacted in 1837, which applies to realty and personalty alike, provided:
“That no will or codicil, or any 'part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”
The English statutes have molded and governed the modern statutory law oíthis country on the subject, with the result, that revocation is largely a matter of statutory regulation.in most jurisdictions, and legislation based on the statute of frauds or on the statute of Victoria has been almost uniformly adopted throughout the United States with minor variations. Likewise, it has been uniformly held that as far as the subject of revocation is regulated by statute, such statutes are mandatory, they must be strictly construed and wills cannot be revoked in any other way than that provided by them, and this is true regardless of a testator’s intention. The basic principle behind all the formalities prescribed by all of these statutes providing for revocation of wills is that such formalities and requirements are necessary to prevent njistake, misapprehension and fraud.
What has just been related is, we believe, a brief and correct summarization of the history and development of, and the purposes and intent of, all statutes, including our own, which deal with the manner in which written wills may be revoked. To those who may desire an amplification of the subject here discussed we refer to Page on Wills (Lifetime ed.), chapter 15, and Thompson on Wills, 2d ed., chapter 10.
With specific reference to the question (and we here quote it as submitted), “Where a testator makes, executes and declares a valid written will making disposition of all of his property, may he subsequent thereto make a nuncupative will or codicil revoking or altering such written will?” we think it has been uniformly held by well-established treatises on general law and recognized text writers that a nuncupative will does not revoke, alter or change the terms of a prior written will.
In 68 C. J. 801, § 486, we find the following:
“Prior to the statute of frauds, wills could be revoked by oral declarations. In England the statute of frauds and subsequent statutes forbade oral revocation of wills, both of real and personal property, and enumerated the methods by which wills might be revoked. .Similar legislation has very generally been enacted in the United States, the result of which is that wills can no longer be revoked by oral declarations.”
To the same effect is 28 R. C. L. 156, § 111, wherein it is stated:
“. . . A further limitation in the use of nuncupative wills is that they cannot be used to revoke a prior written will or testament. . . .”
Likewise, in 51 A. L. R. 652, 670, at the close of an extended an- . notation on revocation of wills, the conclusion reached by the author is to be found in the following language:
“The rule is, however, that under statutes which provide that a will may only be revoked by some other will or codicil in writing, executed with due formalities, a nuncupative will, although sufficient when standing alone to dispose of an estate, cannot take effect as a revocation of a prior formal will; . . .” (p. 670).
Various phases of the rule as announced by recognized text writers are as follows:
“Eighth, as to the repeal or alteration of a written will by a nuncupative one. This, we have seen, is expressly forbidden by the Statutes of Frauds. And under American codes, the revocation, total or partial, of a duly excuted written will by an oral or nuncupative one is likewise prohibited.” (Schouler on Wills, 5th ed., § 379.)
“Prior to the .enactment of the statute of frauds, a written will could be revoked by the oral declarations of the testator . . . Since the enactment of this statute a written will disposing of either real estate or personal property cannot be revoked by mere parol . . .” (Thompson on Wills, 2d ed., § 152.)
“The testator can^ revoke his written will only by complying with all the requirements of the statute as to some one of the methods of revocation approved therein. Oral declarations of revocation are wholly ineffectual under all circumstances. A nuncupative will cannot be given effect as a disposition of property covered by a previous written will, for that would be allowing the revocation of a written will by parol. . .” (Rood on Wills, 2d ed., § 326.)
“If the alleged revoking instrument is oral, or if it is not signed by testator, or if it is not signed by him in the presence of the witnesses, and the statute requires such formalities of execution, the instrument does not operate as a revocation. ... As under the modern statutes, words alone cannot revoke a written will, it follows that a nuncupative will, even though of itself valid, cannot revoke a prior written will, except where the statute makes a special exception in its favor . . .” (Page on Wills [Lifetime ed.], §458.)
A somewhat extended investigation discloses there are surprisingly few American cases dealing with the specific question under consideration. We have carefully examined the decisions in point and the statutes construed by the various courts in arriving at the conclusions announced therein. Without exception they hold that a written will cannot be revoked by a subsequent nuncupative will. Two exceptionally well-considered cases, construing statutes which were practically the same in form and substance as our own, are, Devisees of M’Cune v. House and Litch, administrators, 8 Ohio 144, 31 Am. Dec. 438, and Estate of Hadsell, 55 Ariz. 116, 99 P. 2d 93. Other cases, dealing with statutes somewhat different in form and substance but insufficient to change the fundamental reasoning responsible for the conclusion therein announced are Brooks and Others v. Chappell, 34 Wis. 405; Kennedy v. Upshaw and Cox, 64 Tex. 411; Limbach v. Limbach, 214 Ill. App. 64, affirmed 290 Ill. 95, 124 N. E. 860; Allen and Others v. Huff and Others, (Tenn.) I Yerger 404.
Appellant contends that the authorities here cited all have to do with the revocation of a written will by a nuncupative will the terms of which revoke such written will. In this she is correct. But as we have heretofore noted, that was included, in the question of law submitted for determination. Hence, such decisions are all applicable.
We have no difficulty in concluding that they are also applicable to a situation where the terms of the nuncupative will alter the written will. G. S. 1941 Supp. 59-611 provides “no will in writing shall be revoked or altered” (emphasis supplied). The words to which we have supplied emphasis do not appear in the more ancient statutes to which we have referred and to some of those considered by the courts in the decisions here cited. Nevertheless, the legislature had power to make that addition, and siiflce it saw fit to do so the reasoning which impels the conclusion that a nuncupative will cannot revoke a written will compels a similar conclusion with respect to a nuncupative will which alters a written one.
The appellant insists that the determination of the instant question depends upon certain well-grounded rules of statutory construction. She cites those rules and strenuously contends that inasmuch as the provisions of our statute providing for the execution of written and nuncupative wills and the revocation of written wills are inconsistent they should be applied. We have no quarrel with the rules enunciated by appellant. They have been fortified throughout the years by a long line of well-considered decisions. The difficulty we have is in concluding they are pertinent to the instant situation. There is no inconsistency in these statutes. Under them a testator may make a valid written will. He may make a valid nuncupative will. If he has made a written will disposing of his-real estate and a portion of his personalty he may thereafter make a valid nuncupative will disposing of such of his personalty as .is not disposed of by the terms of the written will. But, if he has made a valid written will disposing of all his property, both real and personal, then he must take notice of the provisions of G. S. 1941 Supp. 59-611 providing for the way in which a written will can be revoked or altered and comply therewith. If he does not see fit to do so his property is disposed of under the terms of the written will irrespective of the language used by him in a subsequent nuncupative will. Any other conclusion would result in a revocation or alteration of the terms of a written will and violate the positive and express provisions of the statute.
In our determination of this question we have not been unmindful of appellant’s contention that the statute providing for revocation is a general statute whereas the one providing for the execution of a nuncupative will is special. We believe that the provisions of our statute pertaining to wills generally are all general statutes as that term has been defined in our decisions. Even if we should concede — which we do.not — that there is any foundation for this contention we believe appellant’s argument would fall of its own weight. G. S. 1941 Supp. 59-606 deals generally with the execution of written wills. G. S. 1941 Supp. 59-608 deals generally with the making of nuncupative wills. G. S. 1941 Supp. 59-611 has to do with the manner in which a written will may be revoked. If there is anything special* about either of these statutes, and our definition of a special statute could be stretched to justify a finding that one of these three provisions was special and the two others general, it seems certain we would be forced to conclude that G. S. 1941 Supp. 59-611 was more special than either G. S. 1941 Supp. 59-606 or 59-608, because it deals specifically with the subject of how a written will may be revoked or altered.
Another contention advanced by appellant is that a nuncupative will when reduced to writing and subscribed by the required number of witnesses becomes a valid written will or codicil of the testator with respect to personal property. The difficulty with this argument is that G. S.'1941 Supp. 59-606 provides that every will except an oral will shall be in writing and signed at the end thereof by the party making the same or by some other person in his presence. In Osborne v. Atkinson, 77 Kan. 435, 439, 94 Pac. 796, we said:
“. . . A written will must be the act of the testator, although another may pen the words or otherwise assist him in consummating the act. It must be ‘signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction.’ (Gen. Stat. 1901, § 7938.)
A nuncupative will is not a will in writing. Nor can it be said to be a codicil to a written will. The word “will” includes codicils.
We have herein determined all questions properly raised by the appeal. A number of'other questions have been suggested by both parties, but they do not come within the scope of appellate review in this case and must be determined if, as and when they are presented to the trial court.
We find no error in the declaration of law announced by the trial court and the judgment is affirmed.
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The opinion of the court was delivered by
Parker, J.:
Two separate causes of action involving claims pertaining to the right, title and interest to an oil and gas lease, together with all equipment and producing oil wells located thereon, were filed in Elk county, Kansas, and thereafter consolidated for trial.
The facts which resulted in the institution of the first cause of action can be briefly stated. Sherman McKown and Mattie Sue McKown owned ap oil and gas lease on real estate located in Elk county, and certain equipment and producing wells situated thereon. On October 29, 1940, they contracted with C. W. Davidson to sell him this property for $1,800 and executed an assignment conveying the title, together with an escrow agreement which was signed by all parties. These instruments were placed in the First National Bank of Sedan in escrow to be delivered to Davidson upon payment in full of the purchase price in ten days. Within a week Davidson paid $1,000 to the bank. This money was applied to the payment and release of a mechanic’s lien held by the Chautauqua County Machine Shop Company, of which Davidson had notice, both personal and record, prior to the date of the execution of the contract and to pay other claimants who may have been entitled to liens. Thereafter, Davidson paid $300, which was accepted and used by the McKowns. The date of the making of payments and failure to pay the balance of $500 are unimportant since the McKowns at no time elected to forfeit the contract for failure of Davidson to make payments in the time and manner specified in the written contract. On December 12, 1940, Davidson filed a verified statement with the register of deeds of Elk county, stating that he had made an escrow agreement with Sherman McKown for a conveyance of the oil and gas lease and that such lease was encumbered with a lien of $1,300 in his favor. On the following day he commenced an action against the McKowns and the bank.
The petition filed by Davidson alleged the execution of the contract and escrow agreement, set forth the terms thereof and the making of the payments herein referred to. In addition it contained the following allegations in substance: That after the making of the $300 payment Davidson had discovered the McKowns had secured his signature to the contract and escrow agreement and the subsequent payments under false and fraudulent representations there had never been a dry hole drilled on the lease whereas there had been three, and that the oil wells which were producing on the lease had never been acidized, when in fact all such wells had been acidized, all of which facts were well known to McKown; that by reason of these representations the plaintiff was entitled to recover back the sum of $1,300, which he had paid to the bank for the Mc-Kowns and in addition to that amount the sum of $1,000 as damages, for all of which the plaintiff prayed judgment.
The only allegations in the petition with respect to the defendant bank are to be found in the prayer in which Davidson asked that the bank, as escrow agent, be required to set up any interest it might claim to have in the subject matter of that litigation.
Although unimportant to a disposition of the issues, it clarifies the procedural factual situation to state that personal service was had on the McKowns the day after the institution of the action and that an answer was filed by them on March 6,1941, which answer later, and just prior to the trial of the consolidated actions, was withdrawn by their attorney. Also, that the bank was served with summons on December 14, 1940, and made no answer to the petition until May 8, 1942, on which date it sought and obtained permission from the court to do so.
As to the second action, the pertinent facts causing its institution were as follows: The McKowns, subsequent to the execution of the escrow agreement, had borrowed a small amount of money from the First National Bank of Sedan and on January 2, 1941, sought and obtained an additional loan of $1,600, the bank taking as security for such loan an assignment of the lease hereinbefore referred to, the property thereon and the oil produced, which assignment was regarded by all parties as a mortgage. On January 16, 1941, the bank commenced an action against the McKowns to forclose its mortgage. The petition alleged execution and recordation of the mortgage on the oil and gas lease and other property under the terms of which all such property was assigned to the bank and prayed for judgment in the sum of $1,209.22, the amount claimed by it to be due on the note and mortgage after giving credit for amounts realized from oil sold by plaintiff from the lease after it took possession of the property. Subsequently, judgment was rendered foreclosing the mortgage and ordering the sale of the lease. Shortly thereafter Davidson, who had no knowledge of the filing of this action, filed a motion to set aside the judgment and on May 4, 1942, his motion was sustained. On the same date the, two actions herein described were consolidated for trial.
Thereafter, and on May 8, 1942, the bank obtained permission to and did file an answer, the allegations of which, after admitting the execution and delivery of the escrow agreement and the payment made by Davidson to the McKowns, were substantially as follows: That by the institution of the first action Davidson had elected his remedy and was estopped to claim any rights in such property by reason of his contract and assignment since he had disclaimed and was now limited in his remedy, if any, to a personal judgment against the McKowns; that subsequent to the filing of such action, the bank, relying on the election to cancel the contract and seek damages for its breach, took its mortgage from McKnowns to secure an actual loan of $1,600; that the bank thereby acquired a first lien on the property and that Davidson should be barred from setting up any claim thereto.
Davidson’s reply alleged in substance: That the bank took its note and mortgage with full knowledge of the pendency of the first action, of the fraud perpetrated on Davidson by the McKowns, the indebtedness they owed him and with full knowledge of their insolvency; that such mortgage was made and accepted with the understanding and purpose to injure, delay and defraud Davidson so that the property so fraudulently conveyed to the bank could not be subjected to payment of his claim and that his right to such property was superior to that of the bank notwithstanding its mortgage.
On these issues the consolidated cases were tried to the district court which rendered judgment, as between Davidson and the bank in favor of the latter, foreclosing the mortgage and decreeing the same to be a first and prior lien on all the property to which Davidson claimed rights by virtue of his contract and assignment. Such judgment directed a sale of the property and the application of the proceeds realized therefrom to the payment of the amount due the bank, after which any balance remaining was to be applied toward payment of the amount found to be due Davidson from the McKowns. A motion for new trial was filed and overruled whereupon Davidson appealed.
In advance of a determination of the legal questions here involved it should be stated the trial court made specific and detailed findings of fact whereby it resolved all disputed questions of fact, which were few in number, in favor of the appellee. As to these findings appellant made no complaint and is therefore limited in this appeal, which he frankly concedes, to the question of whether the facts found by the trial court warrant the conclusions of law announced and the subsequent judgment. It should also be stated that our consideration of such questions is limited to the legal propositions raised by appellant in his specifications of error. The fact the notice of appeal contains a statement that appellant appeals from all “adverse rulings” is of no avail for it merely discloses he objects to such rulings and intends to appeal to this court and does not constitute a specification of error. (Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377.) Where a litigant merely appeals from all adverse rulings of the trial court and his specifications of error are directed to one or more of a number of the trial court’s conclusions of law and not to the others he is deemed to have waived any objection he ever had to such others. (Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 193, and Lambeth v. Bogart, supra.)
With this rule in mind it should be noted appellant’s specifications of error, to which we shall presently give consideration were in substance the trial court erred: First, in holding in its third conclusion of law that the claim of appellant to subrogation was junior and inferior to the claim of appellee. Second, in 'holding in its fourth conclusion that the proceeds realized from the sale of the lease be first applied to payment of the amount due the bank. Third, in holding in its sixth conclusion, that under the doctrine of lis pendens no notice to the bank was necessary since the bank was made a party defendant in the suit originally filed by appellant.
It will be observed there is no assignment of error as to the first conclusion of law of the trial court which reads:
“There is due and owing from Sherman MoKown and Mattie Sue MoKown to the First National Bank of Sedan, Kansas, the sum of $1,126.14, with interest thereon from this date at the rate of eight percent per annum, and the costs in the suit brought by the bank; that the assignments-and mortgage from the McKowns to said bank of said lease and equipment is valid and should be foreclosed and said property sold by the sheriff at public auction to satisfy the amount due said bank; that said assignments and mortgage are a first and prior lien on said leasehold and the property thereon used in the operations for oil. The judgment against said McKowns in favor of said bank is a judgment in rem.”
If the appellee’s assignment and mortgage are valid and a first and prior lien on the property therein described and here involved, which appellant concedes as a matter of law by virtue of the fact he predicates no error on, and has waived any objection to, such conclusion of law and the judgment rendered thereon, how can he now hope to successfully urge any one of the objections raised by him in his specifications of error as a ground for a reversal of such judgment. That he cannot do so is so apparent as to require no further comment.
This case might well be disposed of at this point but there are other meritorious legal propositions urged by the counsel for the parties which we deem worthy of attention.
On the date of the filing of the petition in the first action there existed for appellant a choice between two remedies, one legal and one equitable. He could have affirmed the contract and sued for damages or he could have disaffirmed and sued for rescission. If he desired to affirm he kept the property, the McKowns retained the consideration paid by him, and he could have recovered damages for the difference in value between what he was to receive under the terms of his contract and what he actually would have received. If he desired to disaffirm his remedy was to sue for restoration of the status existing on the date he was fraudulently induced to buy and partially pay for the lease and property here in question. An examination of the petition discloses beyond all doubt that Davidson elected to disaffirm for he- sought, not to keep the property, but to recover back the sum of $1,300 paid him on the purchase price and an additional sum as damages by reason of having been induced to enter into the contract by the fraudulent representations of the vendors. Having so elected what force can be given to his claim he retained such an interest in the property that the lien acquired by the bank under its mortgage on, and assignment of, the same property was junior and inferior to-his right and title thereto.
The general rule applicable to such a contention is to be found in 28 C. J. S. 1070, section 6, where it is stated:
“As a general rule, a remedy based on the theory of the affirmance of a contract or other transaction is inconsistent with a remedy arising out of the same facts and based on the theory of its disaffirmance, or rescission; so that the election of either is an abandonment of the other. Where a party rescinds a contract the law does not permit him thereafter to make use of it as subsisting for the purpose of claiming damages, or for the purpose of recovery thereon. . .”
To the same effect is 18 Am. Jur. 134 § 11, 135 § 12, 152 § 32.
The rule with respect to election of remedies generally is applicable to actions involving the rights of vendor and purchaser. (27 R. C. L. 379; 66 C. J. 1466, § 1551; 66 C. J. 1462, § 1548 and 66 C. J. 1468, § 1554.)
In this state it has been consistently held throughout a long line of decisions that when the law gives several means of redress or relief predicated upon conflicting theories, the election of one of them operates as a bar against the subsequent adoption of the others. (Taylor v. Robertson Petroleum Co., 156 Kan. 822, 136 P. 2d 150; Turner v. Jarboe, 145 Kan. 202, 64 P. 2d 26; Fee & Liddon Co. v. Porter, 144 Kan. 108, 58 P. 2d 55; Baron v. Lyman, 136 Kan. 842, 18 P. 2d 137; Baltimore American Ins. Co. v. Millheisler, 131 Kan. 173, 289 Pac. 439; Pitt v. Kennan, 124 Kan. 810, 262 Pac. 567; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Morse v. Grain & Ice Co., 116 Kan. 697, 229 Pac. 366; Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304 and Railway Company v. Henrie, 63 Kan. 330, 65 Pac. 665.)
The fundamental principle underlying the rule announced in all the cases just cited is that one who comes into court asserting or denying his rights cannot assume and occupy an inconsistent position. To this extent the doctrine of election of remedies is founded upon the equitable principles of estoppel. Where a litigant having an election as to remedial rights which are inconsistent sees fit to adopt one he excludes the other and is thereafter estopped to rely upon it for either affirmative or defensive purposes. (Ireland v. Waymire, supra; Taylor v. Robertson Co., supra; Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062 and Curtis v. Hanna, 146 Kan. 919, 73 P. 2d 1063.) Moreover, the fact the action does not proceed to judgment.does not affect the application of the principle. The commencement of a suit is determinative and gives finality to the election (Ireland v. Waymire, supra; 18 Am. Jur. 141, § 18).
In passing we direct attention to a few of our decisions wherein the factual situation was similar to that of the case at bar. Others could be cited, but time and space will not permit their review. In Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111, property was delivered for sale to an agent who later absconded. The principal sued the agent for the price of the goods. Afterwards he undertook to recover the property from a sheriff who held it under writs of attachment against the agent and was denied relief on the ground title could not be affirmed in one action and disaffirmed in another. In National Bank v. National Bank, 57 Kan. 115, 45 Pac. 79, a failing firm to secure its indebtedness gave mortgages to two banks, one of which accepted the security and the other repudiated and proceeded by attachment notwithstanding the fact it had an option to proceed on the theory its mortgage was valid. After the validity of the mortgage of the accepting bank had been upheld the repudiating bank sought to mend its hold and rely on its mortgage. Having undertaken to overthrow the mortgage it was held it precluded itself from any benefit of the security when the validity of the mortgage was sustained. Ireland v. Waymire, supra, was a case where the owner of an automobile brought suit to recover its value from the party who had wrongfully converted it to his own use and later dismissed the action. Later the car was attached by a creditor of the party converting it and the plaintiff in the first action intervened in the last action and sought to recover possession. She was unsuccessful in her attempt, the court holding the remedy first chosen was wholly'inconsistent with that later invoked and that having chosen one remedy the other was no longer available to her.
In the instant case the appellant elected to disaffirm his contract of purchase and rely on an action wherein he rescinded the contract and sought to recover a money judgment and nothing more. At the outset either of two inconsistent remedies were open to him. Having chosen the one he was thereafter precluded from relying upon the other and the trial court committed no error in holding that the appellee’s mortgage and assignment was a first and prior lien on the property and in directing 'that such property be sold and the proceeds realized therefrom be first applied to payment of appellee’s claim and the costs incurred by it.
Appellant strenuously contends that under the doctrine of lis pendens the filing of an action charges third persons with notice and they buy property subject to any judgment lien which might be had in the event the plaintiff is successful in the litigation. Quite true, where the property is the subject matter of the action. The fallacy in appellant’s contention rests in the premise that a personal claim for damages, not the lease and property in question, was the subject of the action. Under no circumstances could appellant under the allegations of his petition acquire a lien on the McKowns property until after the rendition of the judgment on his claim for money. It is urged that it is not necessary to attach real estate before judgment to prevent its owner from selling it to defeat the plaintiff’s claim. This argument overlooks the fact appellant had no action pending wherein he sought to establish the title to land or any other property. He was not seeking specific performance of his contract. He had disaffirmed such contract and abandoned any claim of title or interest he might have had in the property by virtue thereof.
Another argument advanced by appellant is that appellee took its assignment and mortgage with intent to hinder, delay or de-, fraud creditors of the McKowns and that under G. S. 1935, 33-102, such transfer and conveyance was void, also that the transaction had the effect of rendering the McKowns insolvent and it could stand only if the appellee was a bona fide purchaser without notice. In support of this contention attention is called to the notice filed by appellant in the office of the register of deeds of Elk county, on December 12, 1940, stating that the lease was encumbered with a claim of $1,300 in his favor. Here again appellant overlooks the fact that when he filed his action on December 13, 1940, the appellee had a right to rely on his election to abandon the contract and he entirely ignores findings of fact, Nos. 11, 14 and 15, to which he concedes he has no objection, and which specifically find that no officer or agent of the appellee knew anything about the false statements of the McKowns and that the assignment and mortgage was received as security for an actual loan of money made to them in the amount stated therein.
Appellant’s final contention is that the court erred in holding his claim to subrogation for the amount paid out of money advanced by him on the contract purchase price on the lien of the Chautauqua County Machine Shop Company, was junior and inferior to the lien of the appellee. We shall not here attempt to review our decisions dealing with the interesting subject of subrogation rights. It will suffice to say that so far as appellant’s right to subrogation is concerned the controlling principle is that of election. The burdens, and the benefits of a contract, remedy or course of conduct, must be accepted together or must be renounced together. Here appellant renounced such benefits, if any, when he filed his action to rescind the contract. (Mortgage Co. v. Ins. Co., 97 Kan. 190, 155 Pac. 17.) In addition the rule is that a right of subrogation will not be enforced where the right of a bona fide creditor has intervened. (Hargis v. Robinson, 63 Kan. 686, 690, 66 Pac. 988; 27 R. C. L. 691, §454).
The judgment of the district court is affirmed.
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Opinion of the court was delivered by
Parker, J.:
This appeal arises from proceedings initiated in the probate court for the purpose of admitting a will to probate. Since appellant's notice of appeal and specification of errors relate only to the ruling of the district court sustaining a motion to strike certain paragraphs appearing in her second amended answer, the sole question presented is the propriety of the ruling on such motion.
Facts and proceedings pertinent to a determination of the question are: Emily G. Reed, a resident of Shawnee county, Kansas, died on September 15, 1936, after 'having executed a will and two codicils thereto; her only heirs at law were the appellant, Gertrude Reed Miller, her daughter, and the appellee, Stanley G. Reed, her son; on September 14, 1939, the appellee filed in the probate court of Shawnee county, Kansas, the will and two codicils of his mother together with his petition for the probate of such will; it appears no further proceedings were had in probate court until January 24, 1941, when an instrument executed by appellant and denominated as a waiver of notice of hearing petition for probate was filed; thereafter, on March 12 following the probate court made an order admitting the will to probate; on December 8 of the same year appellant appealed from this order to the district court; on the 22d of that month, on motion of the appellee, the district court required the appellant to file a pleading setting forth her grounds for opposing the admission of the will to probate; in compliance with such order the appellant filed answer on April 7, 1942, and thereafter filed an amended answer; on September 22, 1942, appellee demurred to the amended answer, which demurrer was overruled; on November 20 following appellee moved to strike certain paragraphs of the amended answer, which motion was sustained; March 10, 1943, appellant appealed from that ruling to the supreme court but later dismissed the appeal and pursuant to leave of the district court filed on April 6, 1943, a second amended answer, hereinafter referred to; appellee then filed a motion to strike paragraphs 3, 4 and 4(a) from the second amended answer for the reason the allegations thereof were redundant, irrelevant and did not constitute a defense to the admitting of the will to probate; the district court sustained such motion and the appellant appealed from that ruling.
Numerous other facts are mentioned in the abstract and discussed in'the briefs, but since they are not required for purposes of this appeal, will not be referred to here.
It appears, although the amended answer was not abstracted, there being no denial of an allegation made to that effect, that paragraphs 3 and 4 of the amended answer alleged in substance the same defenses to the probating of the will as those contained in paragraph 4 of the second amended answer.
The portions of the second amended answer motioned by the appellee and stricken by the district court read as follows:
“(3) Appellant further alleges that Emily G. Reed died September 15, 1936, and on September 14, 1939, Stanley G. Reed filed a petition in the probate court of Shawnee county, Kansas, praying that said purported will and codicils be admitted to probate in said court but did not cause said petition to be set for hearing by said probate court and no order was made by said probate court fixing the time and place of the hearing of said petition, nor did the court ever fix the time and place for such hearing; that no notice was given as then required by section 198 of Ch. 180, S. L. 1939, pursuant to section 185 of said chapter nor did said court make an order to the contrary or that said notice was not required to be given. Neither did appellant waive said notice or waive the fixing of the time and place for the hearing of said petition to probate said will and codicils or waive the issuance of such order by the court until more than sixteen months after the filing of said petition, when on January 24, 1941, the appellant, .Gertrude Reed Miller, for the first time, waived notice of the hearing of said petition and consented that said petition ‘be heard at the time and place of hearing fixed by the court.’
“(4) Appellant alleges that the provisions of section 53 and 54 of chapter 180, S. L. 1939, (sections 59-617 and 59-618, R. S. 1941) effective at the time of the filing of said petition provided that no will of a testator shall be effectual to pass property unless an application is made for the probate of such will within one year after the death of the testator and that one who knowingly withholds a will from the probate court having jurisdiction to probate it for more than one year after the death of the testator shall be barred from all rights thereunder; that as no application was made for the probate of such will and codicils within one year after the death of the testatrix, said will and codicils were and are ineffectual to pass property thereunder or to create in petitioner any interest in the same; and that because of the fact that petitioner, having possession of and access to said purported will and codicils for the purpose of probate, withheld the same from the probate court having jurisdiction to probate them for more than one year after the death of the testatrix as hereinbefore alleged, the petitioner is barred from all rightá thereunder.
“(4-A) Appellant, while alleging that the time within which an application should be made for the probate of said will and codicils is determined by section 53, Ch. 180, S. L. 1939 (59-617, R. S. 1941) and the rights of the petitioner determined by sections 53 and 54 of said chapter, pleads in the alternative that if it should be determined that said sections are not applicable in determining the time within which application should be made for the probate of said will and codicils, and that if it should be held that sections 22-232 and 22-233, G. S. 1935, are determinative thereof, then the procedure to be followed in the making of the application for the probate of said will and codicils and in the commencement of said proceedings, at the time said application was made, was governed by sections 177 and 180 of chapter 180, S. L. 1939 (sections 59-2201 and 59-2204, R. S. 1941) and by sections 198 and 199 of Ch. 180, S. L. 1939. Appellant further alleges that the petitioner did not comply with any of said sections until he procured and filed in said probate court the above-mentioned waiver and consent ‘that said petition be heard at the time and place of hearing fixed by the court’ to wit: On January 24, 1941, more than sixteen months after said petition to probate was filed, more than eighteen months after sections 53, 54, 177, 180, 198 and 199 of chapter 180, S. L. 1939, became effective, and more than four years and four months after the death of the decedent; that an application was not made for the probate of said will and codicils or a proceeding therefor commenced within proper time or as provided by said sections, and that the period of time ending January 24, 1941, was an unreasonable length of time in respect to the time of filing of said petition for probate, in respect to the effective date of said sections and in respect to the date of decedent’s death within which to make application for probate or to commence proceedings therefor as provided by law; that the simple filing of the petition to probate said will and codicils did not constitute the making of an application to probate said will and codicils or the commencement of a probate proceeding therefor nor did it stop the statute of limitations (either section 22-232 and 22-233, G. S. 1935, or 59-617 and 59-618, R. S. 1941) from running. Further appellant alleges that at the time of hearing said petition to admit said will and codicils the probate court was without jurisdiction to hear the same.. Appellant alleges that by reason of the premises and the neglect and delay of petitioner as aforesaid, said will and codicils are not entitled to be probated and are ineffectual to pass property thereunder or to create in petitioner any interest in the same, and that the petitioner is barred from all rights thereunder.”
At the outset there are at least two propositions which should be disposed of before giving consideration to the principal issues involved. The first is that the sustaining of a motion to strike allegations involving the merits of the action and pleaded in the answer as a defense precludes the defense so pleaded' and is an appealable order. We have held a ruling of that character to be tantamount to the sustaining of a demurrer to such answer and therefore appealable. (Miller v. Whistler, 153 Kan. 329, 110 P. 2d 744.) The second, indirectly raised by appellee in his motion to strike and urged on oral argument, is that having appealed from the order sustaining the motion to strike paragraphs 3 and 4 of the amended answer the subsequent dismissal of that appeal bars the appellant from again relying on the defense set forth therein and later included in paragraph 4 of the second amended answer. The answer to that contention is that an order sustaining a demurrer is not such a final judgment or order as to deprive the trial court of authority to permit the filing of an amended pleading even at a term subsequent to the one at which the demurrer is sustained (Harmon v. James, 146 Kan. 205, 69 P. 2d 690). See, also, Pee v. Carlyle, 120 Kan. 200, 243 Pac. 296, holding that in a proceeding to probate a will the inquiry is limited to the subject of whether the instrument produced as a will is entitled to probate and that prior to the determination of that issue orders relating to proceedings incident to the determination of such issue are not res judicata.
We shall first consider G. S. 1941 Supp. 59-617, which reads:
“No will of a testator who died while a resident of this state shall be effectual to pass property unless an application is made for the probate of such will within one year after the death of the testator.”
And G. S. 1941 Supp. 59-618, which reads:
“Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the probate court having jurisdiction to probate it for more than one year after the death of the testator, shall be barred from all rights under the will and shall be liable for all damages sustained by such beneficiaries who do not have such possession of the will and are without such knowledge thereof and such access thereto.”
The sections just quoted became effective, as did all sections of the new probate code herein referred to, on July 1, 1939. Although amended by chapter 213 of the Laws of 1943, they are quoted here as they appeared in the statute on the date the instant will was offered for probate.
The appellant strenuously insists these sections are determinative of the question of whether the will was entitled to probate, while the appellee just as strenuously urges the statute in force and effect prior to the adoption of the new code is determinative. That section is G. S. 1935, 22-233, which reads:
“No lands, tenements or hereditaments shall pass to any devisee in a will who shall know of the existence thereof, and have the same in his power and control for the term of three years, unless within that time he shall cause the same to be offered for or admitted to probate; and by such neglect the estate devised to such devisee shall descend to the heirs of the testator.”
Preliminary to other comments to follow it should be stated that each section of the new probate code we are now considering is a statute of general limitation and is remedial in nature, notwithstanding they are to be found in the code of probate procedure and possess procedural features. The doctrine that a legislature has power to enact a statute of similar character by shortening the time in which an existing cause of action may be barred, so long as a reasonable time is given for the commencement of an action or proceeding before the bar takes effect is well recognized and unquestioned. (34 Am. Jur. 26, § 17; 12 Am. Jur. 89, § 445; 16 C. J. S. 683, § 226; Terry v. Anderson, 95 U. S. 628; 24 L. Ed. 365.) A limitation of time even upon the assertion of a right theretofore having no limitation upon its assertion, or a different limitation is not infrequent, and its legality is unquestionable if a time reasonable, in view of the subject matter be given (United States v. Morena, 245 U. S. 392, 397; 62 L. Ed. 362). That such is the rule in Kansas is no longer a debatable question (Milbourne v. Kelley, 93 Kan. 753, 145 Pac. 816; Almquist v. Johnson, 130 Kan. 417, 418, 286 Pac. 200, and Dobson v. Wilson & Co., Inc., 152 Kan. 820, 822, 107 P. 2d 676).
In support of his position appellee refers to a general statute laying down rules for statutory construction which are to be followed if consistent with the manifest intent of the legislature and not repugnant to the context of the statute. This general statute becomes a part of every repealing statute that does not specifically state it is to have a retrospective effect. (State v. Brown, 146 Kan. 525, 528, 73 P. 2d 19, and Mirise v. Rathbun, 152 Kan. 441, 443, 104 P. 2d 420.) Portions thereof pertinent to our question, read:
“The repeal of a statute does not . . . affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. . . .” (G. S. 1935, 77-201, first.)
He urges this statute requires the conclusion the provisions of G. S. 1935, 22-233, govern the time within which the will could be filed for probate. An examination of all statutes involved does not compel such a decision. This statement should not be left standing alone so we will elucidate. In the first place there is another fundamental rule of statutory construction, to which all others are subordinate, that there is a presumption the legislature intended to pass a valid act, and if there is a reasonable way to construe a statute so that it is valid instead of invalid, that construction should be given it by the court. (State, ex rel., v. Board of Education, 137 Kan. 451, 453, 454, 21 P. 2d 295, and Hunziker v. School District, 153 Kan. 102, 107, 109 P. 2d 115.) In the next, it must not be overlooked that there are no vested rights to any particular remedy or procedure. (See Dobson v. Wilson & Co., Inc., 152 Kan. 820, 823, 107 P. 2d 676; 12 C. J. 974 et seg.; 16 C. J. S. 678; 6 R. C. L. 359; 11 Am. Jur. 1201.) Also that in Kansas statutes of limitation have been held to affect the remedy only and not to impair rights or obligations (Almguist v. Johnson, 130 Kan. 417, 418, 286 Pac. 200, and Keith v. Keith, 26 Kan. 26, and Swickard v. Bailey, 3 Kan. 507). Therefore, inasmuch as G. S. 1941 Supp. 59-617 and 59-618 under our decisions do not impair rights it cannot be successfully urged they affect any right of appellee which had accrued within the meaning of G. S. 1935, 77-201, and since it is conceded the application for probate of the will was not filed until after they became effective it cannot be said they affect any proceeding commenced before their enactment. Moreover, it should be noted that so far as G. S. 1941 Supp. 59-617 is involved it cannot successfully be contended that G. S. 1935, 77-201 is applicable at all, for prior to its enactment, and under the provisions of the old probate code, there was no statute of limitation fixing the time within which a will should be admitted to probate. So it can be said this particular enactment did not repeal any statute.
Another argument advanced by appellee is, and he cites many cases stating the rule with which we are in accord, that a statute operates prospectively and not retrospectively unless legislative in tention to make the statute operate retrospectively clearly appears. He insists that to hold the provisions of the new probate code are applicable would violate that rule. We are not so certain, since a limitation statute possesses procedural features, although we do not here pass upon that question, but what the new code does clearly indicate it was the intention of the legislature that the probate code should operate retrospectively. (See G. S. 1941 Supp. 59-2602 hereafter quoted and referred to.) What we do say is, considering the specific sections under consideration affect the remedy only and do not impair rights or obligations, there is no occasion for the application of that rule. The proceeding initiated to admit the will in question to probate was not commenced until after the provisions of the new probate code came into force and effect. Because of the reasons stated, we have concluded the statute in force at the time the application for probate of the will was filed controls, if it can be determined the new enactment gives a reasonable time for the commencing of a proceeding to probate a will before the expiration of the limitation provided for therein, in cases where a decedent died prior to the date it became effective. On this point it should be noted G. S. 1941 Supp. 59-617 requires the application for probate of a will to be made within a year after the death of the testator while G. S. 1941 Supp. 59-618 bars rights under the will if it is held by an individual having possession thereof for more than one year after the death of such person. Neither section fixes the limitation period in cases where the testator died prior to the date they became effective. The rule applicable in such cases is well stated in the case Estate of Whiting, 110 Cal. App. 399, 294 Pac. 502. In the opinion it was stated:
“The general rule applicable in such cases is pertinently stated by Mr. Wood in his work on Limitations, as follows (section 12): Tf before the statute bar has become complete the statutory period is changed, and no mention is made of existing claims, it is generally held that the old law is not modified by the new, so as to give to both statutes a proportional effect; but that the time past is effaced, and the new law governs. That is, the period provided by the new law must run upon all existing claims, in order to constitute a bar. In other words, the statute in force at the time the action is brought controls, unless the time limited by the old statute for commencing an action has elapsed, while the old statute was in force, and before the suit is brought, in which case the suit is barred, and no subsequent statute can renew the right or take away the bar. (Citations.)” (p. 402.)
We have no difficulty, under such circumstances, in concluding the legislature intended to give a reasonable time for the doing or failing to do the necessary things required by the sections of the statute just referred to; namely, the filing of an application for probate of a will and the withholding of its filing for probate and that its intention was a reasonable time in either situation, would not exceed a period of one year. It follows that when appellee filed his application for probate of the will on the 14th day of September, 1939, which was within two and one-half months from the date the new probate code became effective, he acted within a reasonable time and was within the limitation fixed by the statute then in force and effect. Our conclusion G. S. 1941 Supp. 59-617 and 59-618, not G. S. 1935, 22-233, govern in determining the length of the time one has in which to make application for probate of a will, and for that matter the conclusion, presently announced as to when a proceeding for that purpose is barred is not without precedent. In Gilbert v. Partain, 222 Ala. 459, 133 So. 2, wherein facts and circumstances almost identical were applied to a statute similar in character to that involved in the instant, case a like decision was reached by the Alabama supreme court when in the course of the opinion it was held:
“The right, if any, which vested upon the death of the alleged testator, without more, was the right of testator’s heirs at law. The will, in the absence of the probate prescribed by statute, conferred no rights and could take effect only after it had been admitted to probate in the proper forum. Jordan v. Jordan, 65 Ala. 305, where numerous cases are cited. Eo instanii upon the enactment of section 10608, that statute began to run against the probate of the' alleged will and against that will itself as an operative disposition of property. Appellant proponent had, after the enactment of the statute, the full time allowed by the statute for the probate of the alleged will, and having failed to propound it within that time, lost all rights under it. Such is the clear meaning of section 10608, and the court has no right or power to give it a different effect.” (p. 460.)
In passing we call attention to the fact that both appellant and appellee in their briefs rely on our decision in Siefkin v. Siefkin, 150 Kan. 396, 92 P. 2d 1005, as applicable to their respective positions on the questions herein discussed. We do not so construe it. In the opinion in that case Mr. Justice Wedell, speaking for the court said:
“We shall first consider section 281. We do not think it was intended the provisions of that section should relate to statutes of nonclaim or limitation. The italicized word ‘procedure’ refers to procedure under the former law and we think was intended to refer to the mode or method of bringing and conducting litigation under the former law rather than to the time within which it was required to be commenced. This intention, it seems to us, is also rather clearly indicated by the use of the deliberately selected words previously employed, to wit, ‘in any particular proceeding.’ In other words, it appears it was intended that where some particular proceeding, in the course of administration, had been instituted prior to the effective date of the new code and in the opinion of the court the application of the new rules of procedure would not be feasible or would work an injustice, if that particular procedure were disrupted, that then the procedure under the former law should apply.” (p. 399.)
The remarks of the writer of the opinion had reference solely to the applicability of G. S. 1941 Supp. 59-2602,. to the facts under consideration in that case and in no sense can be construed as determinative of the rights of parties to probate a will under other sections of the code dealing with limitation questions.
Having concluded the provisions of the new probate code with reference to limitations are applicable it is not difficult to determine the purely procedural question raised by this appeal. G. S. 1941 Supp. 59-2602, having reference to procedural matters, reads:
“The rules of procedure herein prescribed shall govern all probate proceeding brought after they take effect and also all further procedure in probate proceedings then pending, except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible or would work injustice, in which event the former procedure applies. This act shall take effect and be in force on and after July 1, 1939, and after its publication in the statute book.”
Appellee points to that portion of the section stating that if in the opinion of the court procedure provided for under the new act would not be feasible or work injustice the old code of procedure can be followed. He insists that language, where the testator died prior to the effective date of the new act, authorizes such action on the part of the court and cites a number of cases in support of his position. It should be noted all of those cases deal with situations where the testator not only had died prior to such effective date but where the will has been probated or application for probate made prior to that date. None deal with a factural situation similar to that involved here, i. e., where the proceeding was commenced subsequently. We do not think those cases are determinative. The trouble with appellee’s argument is that there was no proceeding pending prior to the effective date of the act. If there had been his position would be correct. Since there was not, and the proceeding was brought subsequently, the language “shall govern all probate proceedings after they take effect,” is applicable and takes from the court all power to invoke the procedure of the old code. This is true even if we concede, in the instant case, the' court desired or attempted to apply its provisions. Under the factual situation presented here the provisions of the new enactment were applicable to a determination of all procedural questions. Without taking the time or space to quote from the decisions it will suffice to say it has been so indicated and in fact held by this court in the following cases: First Nat’l Bank v. Gray, 151 Kan. 558, 562, 99 P. 2d 771; Barrett v. McMannis, 153 Kan. 420, 424, 110 P. 2d 774, and Erwin v. Erwin, 153 Kan. 703, 707, 113 P. 2d 349. We reaffirm and approve the statements made and the rule announced therein. See, also, Hicks v. King, 157 Kan. 263, 139 P. 2d 399 and In re Estate of Dotson, 154 Kan. 562, 567, 119 P. 2d 518, dealing with procedural matters pertaining to other phases of probate proceedings but in effect announcing the same principle.
Perhaps unnecessary to a conclusion on the propriety of the ruling on the motion to strike is a determination of the question of whether the will was entitled to probate but since both appellant and appellee urged it, we shall give that question consideration. Under the provisions of the Kansas probate code, now appearing as G. S. 1941 Supp. ch. 59, reference to which will hereafter be made by chapter and section number, every application in a probate proceeding shall be by petition (59-2201) and a probate proceeding may be commenced by filing a petition and causing it to be set for hearing (59-2204). All proceedings are adversary. (Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188.) This court is committed to the doctrine that in order to commence a proceeding the initiating party must, first, file an application by petition, and second, cause it to be set down for hearing. In re Estate of Dotson, supra; Barrett v. McMannis, supra; Osment v. Trout, 156 Kan. 120, 131 P. 2d 640 and In re Estate of Whittesley, 156 Kan. 157, 131 P. 2d 911. With specific reference to the bar of the statute of limitations Mr. Justice Harvey, who spoke for the court in the case of In re Estate of Dotson, supra, said:
“. . . Appellant argues the word ‘exhibit’ simply means filing the petition. We think that view not tenable. He files a ‘petition for its allowance,’ and the only type of petition he can file and start the wheels of justice moving in his behalf includes the filing of the petition and causing it to be set for hearing. There is a similar provision in our code of civil procedure (G. S. 1935, 60-301), which in effect recites that a civil action may be commenced by the filing of a petition and causing a summons to be issued thereon. No one would contend that the simple filing of a petition in the district court, without causing a summons to be issued thereon, would be the commencement of an action or would stop the statute of limitations from running. We think the same reasoning applies here. The simple filing of the petition is not the beginning of a probate proceeding, nor does it stop a statute of limitations from running.” (p. 568.)
It may be suggested the court was dealing with the allowance of a claim in that case, whereas the case at bar pertains to the admission of a will for probate. There is no room for differentiation in the application of the legal principle announced. Therefore, when appellee failed to cause his application for probate of the will to be set down for hearing until March 12, 1941, almost one and one-half years after it had been filed, the bar of the limitation statute had run and the probate court had no authority to admit such will to probate.
There remains one other proposition. Appellee contends the waiver filed on January 24, 1941, estops appellant from making a defense to the probate of the will on the grounds stated in the answer. The waiver is short and we quote it:
“The undersigned, being the sole heir, legatee and devisee of Emily G. Reed, deceased, other than the petitioner, hereby waives notice of the hearing of the petition, filed herein, of Stanley G. Reed for the probate of the will of Emily G. Reed, deceased, and for letters testamentary thereof, and hereby consents that said petition be heard at the time and place of hearing fixed by the court.”
Without discussing other matters which might be pertinent we hold this instrument had no effect other than to consent to the hearing of the application at a time to be fixed by the court. It did not waive any substantive rights possessed by appellant and left appellee to sustain the burden of proving the will was entitled to probate under existing provisions of the probate code.
It follows the trial court erred in sustaining the motion to strike and its order sustaining such motion is set aside and the judgment reversed.
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The opinion of the court was delivered by
Smith, J.:
This was a proceedings where the essential facts are about the same as those stated in the case of In re Estate of Colclazier, ante, p. 125, this day decided, except that the patient in this case was a county patient rather than a private patient. The trial court allowed only a part of the amount claimed by the board. The only argument in this case in addition to those made in the Colclazier case was that this patient was a county patient and the board was not required to make the demand because since he was a county patient it would be useless to make a demand upon his estate. The statute provides that an annual demand shall be made where it is sought to hold a spouse, parent or child liable. A careful study of the statutes has caused us to conclude that a demand is a prerequisite for the collection of the cost of the maintenance of the patient whether he be a county patient or a private one.
The judgment in this case is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
We are asked to review objections to certain annual reports filed in district court by trustees of a testamentary trust. The objections, made by one of the beneficiaries under the trust, were overruled and the reports were approved. This appeal followed.
The trust estate is that of Jacob Achenbach, deceased, of Barber county. We have heretofore considered two separate appeals involving this trust (Achenbach v. Baker, 151 Kan. 827, 101 P. 2d 937, and Achenbach v. Baker, 154 Kan. 252, 118 P. 2d 584). The facts generally with reference to the creation and character of the trust are set forth fully in the prior opinions and need not be repeated here.
We are met at the outset by a challenge to appellant’s right to be heard. Appellees contend that except as to the overruling of the motion for a new trial the appeal'was filed too late. (G. S. 1941 Supp. 60-3309 provides that “the appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken.”)
The record is voluminous and involved, but the facts pertinent to the immediate question may be briefly stated. The appellant, Adolph Achenbach, filed at different times extended objections to the first, second, and third annual reports of the trustees and requested “findings of fact” and “conclusions' of law.” Many of the objections involved construction of the will of Jacob Achenbach creating the trust — interpretations which, it was averred, had become binding, and the contention that various payments made by the trustees out of the income account should have been made from principal. Some of the objections were ruled upon prior to the orders which appellant now seeks to have reviewed. The court made-extended findings and filed a memorandum opinion which occupies more than sixteen pages of the abstract. In the opinion the objections were taken up and dealt with seriatim. In conformity with the findings and conclusions of law a separate journal entry was filed as to each of the three annual reports. With minor exceptions, not here at issue, the three reports were approved and certain allowances made to the trustees and their attorney. All three journal entries were filed on September 11,1942. Motions for a new trial were filed and were overruled on November 14,1942. Notice of appeal to this court was served on January 8, 1943, and filed on January 9, 1943, not quite two months after the motions for new trial were overruled, and approximately four months after the orders complained of were entered. Appellant contends that the perfecting of the appeal within two months after the overruling of the motion for new trial brings here for review the orders of September 11, 1942, overruling the objections and approving the trustees’ reports.
The question may be divided as follows:
1. Was the proceeding relating to approval or disapproval of the trustees’ reports a “trial” within the meaning of the civil code?
2. Was a motion for a “new trial” necessary to protect the right of appellate review?
3. If such motion was unnecessary can the orders of September 11,1942 be now reviewed?
Before considering those questions we note the well-established rule that unless the appeal is perfected in time we are without jurisdiction to entertain it. (In re Estate of Pennington, 154 Kan. 531, 532, 119 P. 2d 488, and cases there cited.)
A trial is defined by our code as a “judicial examination of the issues, whether of law or fact, in an action.” (G. S. 1935, 60-2901.) (Italics supplied.)
A “new trial” is defined as “a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court.” (G. S. 1935, 60-3001.) (Italics supplied.)
An action is “an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (G. S. 1935, 60-104.) (Italics supplied.)
A civil action is commenced by filing a petition and causing summons to be issued. (G. S. 1935, 60-301.)
It is clear that under these code provisions the filing of objections to the trustees’ reports did not constitute the commencement of an “action” and the hearing and order approving the reports did not constitute a “trial.” It follows that no motion for a “new trial” was either necessary or appropriate. McDermott v. Halleck, 65 Kan. 403, 69 Pac. 335, is perhaps our leading case on the subject. In that case an insolvent private bank was in process of liquidation. Certain promissory notes were presented to the receiver for allowance against the trust in his hands and upon the receiver’s refusal to make the allowance the claimant filed a motion for an order directing the receiver to allow the demand. The receiver filed an answer, evidence was taken, and the motion for an order of allowance was overruled. Appeal was taken to this court and the contention was here made that the order could not be reviewed because there had been no motion for a “new trial.” After taking note of the rule that trial errors cannot be reviewed unless called to the attention of the trial court in a motion for a new trial, the court carefully examined the question of the nature of the proceeding and held that it was merely a hearing and not a “trial” and that therefore .no motion for a “new trial” was necessary. In Federal Land Bank v. Richardson, 146 Kan. 803, 805, 73 P. 2d 1005, it was held — citing McDermott v. Halleck, supra — that no motion for a new trial was necessary for review of rulings on motions to confirm a sheriff’s sale and to determine the value of property sold upon a foreclosure of a real-estate mortgage. It was there said that “a motion for new trial under this section (G. S. 1935, 60-3001) is limited to issues of fact after a verdict by a jury, or a decision of the court or referee, upon the trial of issues raised by pleadings in an action.” (A motion is not a pleading within our code definition, G. S. 1935, 60-703.) To like effect see, also, Kessler v. Frost, 103 Kan. 711, 713, 175 Pac. 967, in which review was sought of an order discharging a garnishment and it was held that the presentation and determination of the motion to discharge constituted a hearing and not a trial. (See, also, Prudential Bldg. & Loan Assn. v. Greenlee, 141 Kan. 667, 43 P. 2d 217; Mayall v. American Well Works Co., 149 Kan. 781, 782, 89 Pac. 2d 846.)
If the instant proceeding was not a trial it follows that the date when the motion for a “new trial” was overruled cannot be used to ’support the timeliness of the appeal. However, even if the proceeding be considered a trial we would still be compelled to hold that the appeal was not perfected in time. No question is here urged by appellant which is not essentially a finding of law which inhered in the order of September 11, 1942, of which he complains. In his brief the appellant states that the questions presented are whether the trustees correctly charged certain payments out of the “income” of the trust; whether the trustees correctly transferred to the account of “principal” certain sums from “accumulated income” account shown by the report of the executor and interim trustee; whether the trustees are entitled to credit for a certain sum paid by them in connection with certain litigation involving transactions by the Achenbach-Baker Morgage Company; as to the measure of discretion conferred upon the trustees under the Achenbaeh will and under the will as interpreted by the trial court; whether the trustees abused their discretion in various particulars. Every one of these questions, urged upon the trial court at the hearing, was a question of law and was passed upon by the trial court in overruling the objections and approving the reports. Being entirely questions of law, the motion for a new trial simply amounted to asking the court to rule again on the same questions. To secure the review of these questions of law there was neither occasion nor necessity, for the motion. (Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922; McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535.)
It is well established that when a motion for new trial is unnecessary the time for taking appeal cannot be extended by filing such a motion. (Sheets v. Henderson, 77 Kan. 761, 93 Pac. 577; Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 48, 39 Pac. 718; Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251; Buzbee v. Norstorf, 105 Kan. 270, 182 Pac. 644.)
In view of the conclusion reached that the appeal was not timely perfected no further consideration is required. We have, however, considered appellant’s contentions on their merits and in view of the record thoroughly examined in this as well as in the two prior appeals feel that further brief comment should be made because of the public as well as the private interests involved. To that end we shall very briefly consider one of the objections to the- action of the trustees principally urged by appellant, and which involves a question that pervades many of his objections. In passing we may say that of the large number of the appellant’s objections many would require very little discussion.
In addition to substantial specific bequests and devises which appellant, Adolph Achenbach, received under the will of his father, he was given an allowance during his natural life of $250 a month, and at the end of fifteen years after the death of his father will be entitled to share equally with his brother, August Achenbach, in the accumulated and current income from the trust. He urges that the provision of the will that these monthly payments — to him and in equal amounts to his brother, August Achenbach — are ,to be made “from said trust fund” requires the trustees to make such payments from the principal and not from any income accumulated by the fund. We agree with the trial court that the contention is untenable. Not only does the term “trust fund” ordinarily and naturally include not only the original principal but additions thereto from income earned by it, but in the instant case the testator specifically pro vided that the trustees should be sole judges of what constitutes principal and what constitutes income. Nor did any action shown by the record, in approval of reports of the executor, take from the trustees the large discretion in management of the trust estate conferred upon the trustees by the testator.
Nothing here said is to be construed as impinging in any way upon the right which appellant or any other interested party has to bring proper action to require faithful administration of this trust. But we have noted the critical comment made by the trial court in its painstaking memorandum opinion as to the attitude of appellant with reference to the trust administration and cannot say that the comment was either unjustified or untimely. Appellant has.made the abstracts in the prior appeals a part of the instant record. From our careful examination of the whole record we are convinced that many of the contentions made have plainly been without merit. As to the origins and the responsibility for the personal ill will which seems to exist in connection with this estate we pass no judgment. But we do say that while the trustees should be held to economical, businesslike, faithful and lawful administration of the trust, such administration should not be impeded nor the trustees harassed and the trust funds depleted by capricious and needless litigation.
Not having been perfected in time, the appeal must be dismissed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for overtime, liquidated damages, and attorneys’ fees brought under the Fair Labor Standards Act, 29 U. S. C. A., § 201 et seq. The trial court sustained a demurrer to plaintiff’s evidence and he has appealed.
In his petition, filed June 11,1941, plaintiff alleged that defendant is a producer, refiner and marketer of petroleum and its products and is engaged in interstate commerce; that about October 25, 1938, defendant notified its employees that it was under and intended to comply with the Fair Labor Standards Act; that plaintiff was engaged in working for defendant, and the number of hours he worked for defendant each week, beginning August 6,1939, to October, 1940, was alleged; the lowest number of hours worked each week was alleged to be 44 and the highest 81. He alleged that under his contract of employment he should have worked but 44 hours per week prior to October 28,1939, and but 42 hours per week since that date, and that he was entitled to recover $1.22 per hour for his overtime hours prior to October 28, 1939, and $1,275 per hour for his overtime since that date, and in addition thereto that he is entitled to recover an equal sum as liquidated damages, making a total of $2,734.05. He alleged that he was not versed in the law; that he had kept his time carefully since the law went into effect; that he offered to turn in his correct time several times to his employers, but they insisted that he give them, for their temporary purposes and use, the time provided by law, and that other and additional overtime would be cared for in a different manner. He further alleged that he kept the correct hours worked by him and submitted the same to defendant, but that defendant refused to pay him for his overtime or any liquidated damages.
Defendant in its amended answer denied all allegations of the petition not expressly admitted, admitted the residence of plaintiff, the corporate existence of defendant and that it is engaged in the producing, refining and marketing of petroleum products. It further admitted that plaintiff is now and has been employed by defendant, and alleged that prior to October 24, 1938, he was employed as district foreman of the Haven district; that on and after October 24, 1938, it has been the policy and intention of defendant to comply in all respects with the Fair Labor Standards Act of 1938, and to all employees covered by the act, which fact, policy and intention were well known to plaintiff in his capacity as district fore man; that plaintiff had several employees, including lease pumpers, roustabouts and extra employees, directly responsible to him from October 24,1938, up to about August 7,1939, and during said period plaintiff, as district foreman of said employer, advised with them with respect to compliance by the employees with the wage and hour act; that from and since August 7, 1939, plaintiff was employed by defendant as lease pumper on the Ackley oil and gas lease, and as such lease pumper knew at all times of the. policy and intention of defendant to comply in all respects with the wage and hour act as to all employees covered by the act; .that from and since August 7, 1939, to October 24, 1940, plaintiff, at regular intervals, turned in time sheets signed by him setting forth the number of hours he had worked each of the periods covered by the time sheets; that defendant has paid plaintiff for all straight time and all overtime, as shown by such time sheets; that plaintiff never contended to defendant specifically denied that plaintiff offered at any time to turn payment for overtime except as shown by the time sheets. Defendant specifically denied that plaintiff offered at any time to turn in other or different time records than the time sheets above mentioned, and further specifically denied that any officer, agent or. employee of defendant had authority to change, vary or waive the rules and policy of the defendant to comply with the wage and hour act, all of which was well known to plaintiff. Defendant specifically denied that plaintiff had worked overtime and alleged that plaintiff has been fully paid for all time worked, and in the alternative it is alleged that if plaintiff has worked overtime he has been fully paid for all straight time and all overtime, if any, worked. Defendant also pleaded the one-year statute of limitations (G. S. 1935, 60-306, fourth).
The reply was a general denial.
Evidence on behalf of plaintiff may be summarized or quoted as follows: Plaintiff began working for defendant in July, 1930, as clutch man at Valley Center. In July, 1934, he became district foreman of the Haven district, which included a number of oil and gas leases. One of these was the Ackley lease, a described 80-acre tract on which there were four wells, one or more producing gas and the others oil, and all being pumped. As district foreman plaintiff visited each of the leases in his district every day, conferred with the pumpers, roustabouts or other employees of defendant working on the leases, and if the pumper needed extra help plaintiff saw that he got it. He delivered to the men working on the leases in his district instructions of defendant with regard to their employment and work, took up their time sheets and delivered them with their checks, and made reports to his superiors. His immediate superior in defendant’s organization was C. H. Mercer, whose title was superintendent. Above him was D. S. Cates, manager of production division, and above him were the executive officers, including H. E. Zoller, executive vice-president. The general offices of defendant were at Wichita.
Plaintiff was district foreman when the Fair Labor Standards Act of 1938 went into effect. In preparation for that defendant held meetings with its employees. Plaintiff attended some of those meetings. Defendant adopted a policy of conducting its business in conformity with the act respecting hours, wages and overtime of its employees who come within the provisions of the act and advised each of its employees with respect thereto. At that time Francis Beard was employed as pumper of the Ackley lease. The communication to him reads:
“Exhibit 1.
“The Derby Oil Company
Producers, Refiners, Marketers, Petroleum and Its Products
Wichita, Kansas
October 25, 1938
“Mr. Francis Beard:
“In order that you clearly understand the policy of your company in regard to the Fair Labor Standards Act of 1938, we outline for you in this letter, that Policy.
“1 — The Derby Oil Company shall comply with the Act in every respect.
“2 — In no event shall any employee, covered by the Act, work more than 44 hours in any one week during the first year of the Act.
“3 — In all cases, where it is possible, employees covered by the Act shall work five eight hour days and four hours on Saturdays.
“4 — In emergency cases where work cannot be adequately handled by regular employees within the forty-four hour schedule, then extra or pick-up labor shall be employed.
“5 — All employees are covered by the Act except those employed in executive, professional or supervisory capacity, namely, Departmental Executives, District Foremen, Head Roustabouts, Land Men, Geologists and Tool Pushers.
“C. H. Mercer
C/mg
“Very truly yours, D. S. Cates,
Manager Production Division."
Plaintiff was familiar with the policy of the company ,in this regard. He delivered the above statement to Francis Beard on Oc tober 25, 1938, at the same time he delivered him his check. He also delivered to each of the other pumpers and employees working on the leases in his district a similar statement. Beard continued to act as pumper on the lease until 1939, when he was succeeded by Charles Litterell, who was the pumper on the lease until August 6, 1939.
At the suggestion of Mercer plaintiff prepared a schedule of hours of work for each of the pumpers on the several leases within his district. So far as pertinent here this reads:
“To Mr. C. H. Mercer.
“Below is a schedule for the pumpers in the Haven district for the new law that goes into effect soon, subject to your approval.
“Ackley-Lease, F. L. Beard, Pumper 6:30 to 9 a.m. — 2 to 3 p.m. — 5 to 7 p.m. — 8:30 to 9 p.m. — 6 hours. 7 six-hour days. . . .
“Yours truly, O. E. Jackson.”
This also was delivered to Beard.
About the last of July, 1939, Mercer asked plaintiff to take the job of pumper on the lease instead of being district foreman. Perhaps this was caused by a change in the set-up of the production department of defendant. As district foreman plaintiff’s salary had been $190 per month; as pumper of the Ackley lease his salary was $155 per month. Plaintiff moved into a residence property owned by defendant on the Ackley lease on August 5 and began work as pumper the next day. When he took over the work as pumper on the Ackley lease he found in the desk in the lease house the statement of the policy of the company which he had delivered to Francis Beard October 25, 1938.
Shortly before the Fair Labor Standards Act of 1938 had been in effect one year, at which time the work week would be reduced by the act to 42 hours per week, in evidence of its policy with respect thereto defendant issued and delivered to each of its employees, including plaintiff, the following:
“The Derby Oil Company
Producers, Refiners, Marketers, Petroleum and Its Products
Wichita, Kansas
“To: Employees Production Division The Derby Oil Company.
“Prior to October 24, 1938, you were advised that our Company was adopting a policy whereby the maximum hours work week was limited to 44 hours. You were also advised that overtime work would not be permitted.
“A re-statement of policy with respect to the work week hours appears to be in order.
“A maximum 44 hour work week has been in effect the past year and to a commendable degree actual working hours have been held to a lesser number of hours. The management feels that the time has arrived when an average work week should not exceed 40 hours with an absolute maximum of a 42 hour work week in the event of emergencies. No overtime is permitted.
“Therefore, beginning the week of October 21, 1939, work must be held currently to an absolute minimum consistent with the proper conduct of our Company’s business. This can be accomplished by advance planning of work and the performance of duties under such plans.
“The management expects all employees to cooperate fully in carrying out the policy adopted through strict adherence to the instructions herein outlined.
“The Derby Oil Company.”
Plaintiff testified that he had a talk with Cates about the 19th or 20th of August, 1939. “Cates told me to go ahead and hire helpers, and he said, ‘You are lease operators instead of pumpers. Go ahead and pump them.’ ” That about three days later Arch Peters came out “and I said, ‘Do you want me to hire help like Mr. Cates said?’ and he said, ‘No; if anything goes wrong, call me.’ ” Plaintiff further testified that one time the last part of August, up by the tool house on the lease, “I told Arch Peters that the lease couldn’t be operated in 44 hours. ... He said he knew it, but we had to go ahead and work and keep our damned mouths shut.”
Plaintiff testified that after he had been working there perhaps two months Mercer came one day and asked him if he would take a foreman’s job; said that L. E. Douglass wanted a foreman over on the Theede lease, and that during the conversation he told Mercer the lease could not be operated in 44 hours. What reply, if any, Mercer made is not disclosed.
Plaintiff testified that after Eckel took over the work Peters had been doing he hired George Pyle as extra worker. “Mr. Eckel told me, after he had already hired Mr. Pyle extra, he told me if I needed help and I had to have it, to get hold of George Pyle. . . . After Mr. Eckel was head roustabout I asked him if he wanted me to hire help like Cates said, and he said, ‘No,’ if anything went wrong, to call him.”
Plaintiff testified: “I knew I was supposed to be working 44 hours a week.”
Defendant furnished a telephone in the lease house on the Ackley lease where plaintiff could call the Haven headquarters on business. He testified he was supposed to call only in an emergency and to reverse the call. “I did call if I thought it was an emergency.”
Plaintiff testified that on February 12, 1940, he talked with Mr. Zoller at the main office in Wichita and told him: “The Ackley- can’t be operated in 44 hours a week. I’ve got 335 hours in January.” He said: “I don’t want you boys to work that way, and you should have a day a week off." Beginning in April, 1940, plaintiff was given Tuesday of each week off. He further testified that sometime in April or May, 1940, he had a talk with Cates in which he told him the lease could not be operated in 44 hours and that Cates replied: “Well, ... we started giving you a day off a week in April, 1940.” Plaintiff testified that while he was district foreman Jess Rogers, who was one of the employees of defendant working under him, turned in time sheets showing more than 44 hours work; that at the direction of Mercer he returned it to Rogers and had him change it to show that he had worked only 44 hours. Rogers, called as a witness, testified that he had turned in the time sheet showing extra time and that plaintiff returned it to him.
Plaintiff testified that in looking after the pumping he made a round of the pumps early in the morning. “If there is nothing wrong, it will take two hours, reading the meters and checking the engines and bearings and making out my reports. If there is something wrong, it will take longer.” Usually he checked them four times a day, but oftener if a bearing was running hot or there was some other trouble. It did not take so long to make the other rounds. It took about an hour to check and oil the pumps. They were oiled twice a day. The last checking was late in the evening, about nine o’clock. That he did a lot of extra work — roustabout work, such as “goosing” the grass about the wells and pumps; this was done with a push shovel; mowing grass, repairing salt-water hose, fixing belts, and other work about the lease. Charles Litterell had worked as pumper on the lease for four months just before plaintiff took it over and he testified that looking after the pumps on the lease would take four or five hours a day if a person did nothing else; that although he had a roustabout to help him a part of the time he put in from 48 to 51 hours per week. A part or all of this time he was also pumper on two other leases. George M. Pyle testified that he was hired by Eckel as a roustabout and worked on the Ackley lease whenever the plaintiff called him; also that his father did some roustabout work on the lease.
Defendant’s practice was to pay its employees semimonthly, as authorized by our statute (G. S. 1935, 44-301). Throughout the time covered by this action, August 6, 1939, to October 26, 1940, plaintiff made out his time sheets semimonthly and received his pay at the rate of $155 per month. These time sheets have a place for noting the number of hours worked each day. None of them showed plaintiff to have worked more than 44 hours in any week prior to October 28, 1939, nor more than 42 hours in any week after that date; a few of them showed fewer hours worked. Each of these time sheets was signed by plaintiff.
Plaintiff testified that when he began work as a pumper on the Ackley lease he kept a daily record of the hours he worked in books which at some time had been furnished him by defendant; that he continued to keep such a record daily up until the latter part of October, 1940. These books were introduced in evidence. They showed the number of hours worked by plaintiff as alleged in his petition. He had kept these books secretly and had never shown them to any of the officers, or his superior employees, of defendant. No'officer or other employee of defendant was in position to check the number of hours worked each day or week by plaintiff. The accuracy of the entries in these books depends solely upon the testimony of plaintiff.
There is no evidence that plaintiff at any time covered by the claim here presented from August 6, 1939, to October 26, 1940, presented any claim to defendant for pay for overtime work. He testified:
“After I turned in this overtime, Mr. Eckel said, ‘We will not make you roustabout now.’ He said, ‘I will furnish roustabouts, and you do the pumping so you don’t get any overtime.’ ”
The date of this conversation is not shown, but obviously it was sometime later than October 26, 1940.
There is no evidence that the work interfered with plaintiff’s rest at ni^ht, or with time for his meals, and he testified that normally he had time each day to go to town, to play golf, which he did only a few times, or to use otherwise as he pleased.
We turn now to the questions involved in the court’s ruling sustaining defendant’s demurrer to plaintiff’s evidence. In doing so we keep in mind the well-settled rule that in ruling on such a demurrer the trial court cannot weigh the evidence nor pass upon the credibility of witnesses, but must construe the evidence as favorably to plaintiff as it is reasonably possible.
We first note there is no evidence in the record to sustain the allegation of the petition that plaintiff “offered to turn in his correct time on several different occasions to his employer, but they insisted that he give them for their temporary purposes and use the time provided by law, and that the other or additional overtime would be cared for in a different manner.”
With respect to his hours of work and overtime, plaintiff’s contract with the defendant was evidenced by the letter of October 25, 1938, in which defendant stated its policy with reference to the Fair Labor Standards Act. In that it was said:
“In no event shall any employee, . . . work more than 44 hours in any one week. . . . where work cannot be adequately handled by regular employees within the forty-four hour schedule, then extra or pick-up labor shall be employed.”
In short, it was a specific element of his employment that he should not work overtime. Plaintiff knew that he was to work only 44 hours a week, and so testified. He outlined a schedule of the time for a pumper to pump the wells on the Ackley lease, which allowed a six-hour work day. His testimony disclosed that unless there was some emergency the work of looking after the pumps could be done in not to exceed five hours, and Litterell, who had looked after the pumps on the Ackley lease shortly before plaintiff took over that work, testified that the time required, to look after the pumps was from four to five hours per day. So, the evidence clearly establishes that 44 hours a week, even 42 hours, allowed ample time for the normal work of looking after the pumps and gave as much as an hour to care for minor difficulties which arose in the operation of the pumps. Plaintiff knew this when he talked to Cates about two weeks after he commenced work on the Ackley lease, at which time Cates stressed the thought that he wanted the oil pumped, and told him to hire extra help if necessary. When he talked to Peters, about three days later, Peters told him that if he wanted extra help to call him. The company furnished plaintiff the telephone, which he was at liberty to use for that purpose. There is a suggestion here that this is a change from Cates’ direction. The only difference, if anything, was whether plaintiff should hire the help without saying anything to anyone about doing so or should first call Peters. We think it unreasonable to construe this as any authorization for plaintiff to work longer than 44 hours per week. It was information necessary for defendant’s records. Neither was it any indication that extra help would not be furnished. Peters appears to have stressed the thought also that attention should be given to doing the work rather than talking about it. But even that carries no reasonable implication that it was to be done in violation of his contract of employment. When Eckel came on the job he hired an extra roustabout, whom plaintiff was free to call when he needed him. When the Fair Labor Standards Act had been in effect a year defendant distributed to its employees an additional statement of its policy supplemental to the one issued earlier. In that the employees were reminded that from the start its policy was “overtime work would not be permitted.” It recited:
“The management feels that the time has arrived when an average work week should not exceed 40' hours with an absolute maximum of a 42 hour work week in the event of emergencies. No overtime is permitted.”
There is nothing in plaintiff’s testimony of his talk with Zoller in February, 1940, or with Cates later in April or May, which tends to establish the allegations that defendant asked its men to return only the hours worked, as authorized by law, • and that defendant would pay for overtime on some other basis. Eckel’s statement to plaintiff, when he finally turned in his claim for overtime, was a restatement of what plaintiff had been told repeatedly and consistently from the time the Fair Labor Standards Act went into effect.
The statute (29 U. S. C. A. § 203), containing definitions, includes:
“(e) ‘Employee’ includes any individual employed by an employer. . . . (g) ‘Employ’ includes to suffer or permit to work.”
Appellant argues that defendant suffered or permitted plaintiff to work overtime. We think the words “suffer” and “permit” as used in the statute mean “with the knowledge of the employer.”
See 60 C. J. 991; Gregory v. U. S., 10 F. Cas. No. 5,803; Wilson v. The State, 19 Ind. App. 389, 46 N. E. 1050; Allison v. Commonwealth, 221 Ky. 205, 298 S. W. 680; Clover Creamery Co. v. Kanode, 142 Va. 542, 129 S. E. 222. See, also, 48 C. J. 924, and authorities there cited.
In Walling v. American Needlecrafts, 46 F. Supp. 16, it was held:
“In providing by the Fair Labor Standards Act that the term ‘employ’ includes ‘to suffer or permit to work,’ Congress did not intend to destroy established rules fixing the status and affecting the relationship of employer and employee in actions based upon that relationship, and the quoted phrase was used to protect employees who actually were employees within the usually accepted meaning of the terms, regardless of terminology used in contract of employment.” (Syl. ¶ 6.)
We think there is no evidence in this record to sustain the view that defendant knew plaintiff was working overtime and thereby suffered or permitted him to do so. Having employed him to work, they knew he was working. They knew also the wells could be pumped without overtime work. Plaintiff himself had prepared a schedule for the pumping of the wells which clearly disclosed that fact, and his testimony at the trial and that of the only other witness he called on that point was to that effect. Defendant very emphatically told him" when he was employed not to' work overtime. He knew that and understood it. We think defendant acted within its rights in establishing a rule or policy of prohibiting overtime work. (See Fleming v. Stillman, 48 F. Supp. 609.) So long as the compensation is as great as that fixed by the act the employer is free to work out the compensation problem in his own way. (Williams v. Terminal Co., 315 U. S. 386, 62 S. Ct. 659.)
The administrator of the Fair Labor Standards Act has given much consideration to the wage and hour provisions of the act as they apply to pumpers of oil wells, caretakers, custodians, watchmen, or other employees whose hours of work are not supervised by the employer. (See the Wage and Hour Manual, 1942 edition, paragraphs 7 and 8 of Interpretative Bulletin No. 13, pp. 124, 125, Official Answers to Questions, pp. 165 and 320, and Explanation of Regulations, pp. 292, 293.) These interpretations are persuasive. (Overnight Motor Co. v. Missel, 316 U. S. 572, 62 S. Ct. 1216.) Without quoting these at length it is clear that the Administrator attempted to make and interpret regulations that would be workable and at the same time be fair both to the employers and to employees. In this type of work it is clear that the employee is the only one who knows how many hours he works, and the employer is justified in relying on his time sheet unless he knows it to be inaccurate. Semimonthly payments may be computed on the work-week basis. The employer is required by the act to keep a correct record of the hours worked by his employees, the wages paid, and other details. He is liable for severe penalties if he does not do so. The act, of course, was intended to be a Fair Labor Standards Act. The administrator appears to be using every reasonable effort to have it operate fairly. It is not consistent with that viewpoint that an employee, forbidden by his contract of employment to work overtime, should conceal from his employer the fact that he is working overtime, if he is really doing so. Courts do not look with favor upon a claim of that kind by an employee.
(West v. Cleveland Overall Company, 4 W. H. R. 502; Cordell v. H. F. Wilcox Oil & Gas Company, 4 W. H. R. 606; Walling v. Woodruff, 5 W. H. R. 727, 729 [49 F. Supp. 52]; Mortenson v. Western Light & Telephone Co., 42 F. Supp. 319; Dollar v. Caddo River Lumber Co., 43 F. Supp. 822; Epps v. Weathers, 49 F. Supp. 2; Feldman v. Roschelle Bros., 49 F. Supp. 247.)
Judgment in such cases cannot rest upon guess, speculation or suspicion. The burden of proof rests upon plaintiff. In this case we think it clear that he failed to establish by evidence the material allegations of his petition.
At the beginning of the trial defendant made a written offer to confess judgment under our statute (G. S. 1935, 60-2941) for a stated sum. Appellant presents no question to this court relating to that matter, hence we need not consider it.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
This was an action for specific performance of an alleged oral contract to convey certain real property “by deed or will.” A demurrer to the petition was sustained and the plaintiff appeals. The principal question presented is whether the action was barred by the nonclaim statute, G. S. 1941 Supp., 59-2239.
S. B. Drake, a resident of Scott county, Kansas, died intestate on May 8, 1941. Ansel Drake, one of his two sons — who, it is averred, constituted the sole heirs at law — was appointed administrator, and the first notice of the appointment was published on May 15, 1941.
We first take note of a prior action instituted by Mabel K. Burns, the appellant here. On February 13,1942, she filed a petition in the probate court alleging that the estate was indebted to her in the sum of $4,000 for personal services rendered the decedent and in the sum of $1,000 for improvements which she had made upon certain land owned by the decedent. She there alleged that the decedent had promised, under an oral contract made in May, 1936, that he would convey the land to her by deed if she would continue to care for him, prepare his meals, attend him in illness, and drive his car for him. She alleged the value of the land and improvements to be $5,000 and sought allowance of a claim in that amount. This claim was filed two days prior to the expiration of nine months after the first publication of notice of the administrator’s appointment. Apparently, however, no order was asked or entered within the nine-months’ period, setting the claim for hearing as then required by the statute. (In re Estate of Dotson, 154 Kan. 562, 119 P. 2d 518. For subsequent amendment to section 59-2237, G. S. Supp. 1941, see Senate bill No. 110, section 3, to appear as chapter 213, Laws 1943.) In any event, upon petitioner’s own motion filed on April 7, 1942, the petition was stricken from the files.
The instant petition, filed in the probate court on May 14, 1942, was substantially similar to the prior one except that this time appellant alleged that the decedent had promised, by oral contract, to convey the land to her “by mil or deed” in consideration of the services heretofore referred to, and this time she sought specific performance under the contract — a decree declaring title to be vested in her and quieting her title as against the defendants.
The petition, which had been captioned “In the Probate Court of Scott City, Kansas. In the matter of the Estate of S. B. Drake, deceased,” was set for hearing on June 20, 1942. The record does not disclose that the other brother, Cecil Drake, was served with notice of this hearing or that he entered appearance. Ansel Drake, administrator, demurred on the ground- — •
“1. That the Petition discloses upon its face that the court has no jurisdiction of the subject matter of the action or of the parties thereto.
“2. That the alleged cause of action or claim is barred by the Statute of Limitations.
“3. That the alleged oral contract to convey real property is within the Statute of Frauds, and by reason thereof is unenforceable and void.
“4. That the purported services alleged to have been rendered to decedent were strictly of a business nature and one that could have been compensated with money.
“5. That no Notice of the hearing of said petition was ever given to the persons entitled thereto as provided by law.”
After hearing the arguments the probate court sustained the demurrer “upon all the grounds” above stated. Upon appeal to the district court the demurrer of the administrator was again sustained, on January 20, 1943, and the action was dismissed at appellant’s cost. This appeal, addressed solely to the administrator and his attorneys, and not to the other brother, Cecil Drake, followed.
Although the demurrer was sustained upon all of the grounds stated, supra, appellee relies entirely upon the contention that the action or claim was barred because not filed or exhibited within the nine-months period specified in section 59-2239, G. S. 1941 Supp.
The question is whether the nonclaim statute (59-2239, supra) of the probate code is applicable to the instant.cause of action.
The present probate code, which became effective July 1, 1939, made many and important changes in the law. It is in no way surprising, therefore, that a number of questions of interpretation and application have already arisen. Others will doubtless arise. It is well for all concerned that any ambiguities or uncertainties in the code touching either substantive rights or procedural questions be definitely determined as speedily as may be.
In a number of recent cases we have had occasion, in construing different provisions of the probate code, to discuss the broad, general purposes of the enactment. We need not here again treat that subject at any considerable length. However, in approaching the instant issue it seems well to quote briefly from a few of these recent opinions.
In Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438, it was said:
“A careful study of the provisions of the new probate code leads us to conclude it was the intent and purpose of the framers of the Kansas probate -code and of the legislature which enacted it to grant to probate courts exclusive original jurisdiction over all matters incident and ancillary to the settlement and distribution of decedent estates, except as to any matter over which that code expressly confers concurrent jurisdiction upon district courts.” (p. 270.)
In the very recent case of Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188, in which the question of jurisdiction of probate courts under the present code was broadly treated, it was said:
“Further evidence of the purpose of the framers of the Kansas probate code and the legislature in enacting it, to grant probate courts exclusive jurisdiction as far as possible over all matters incident and ancillary to the management, administration, settlement and distribution of decedents’ estates, is found in the fact that by its terms every probate proceeding, including the exhibiting and allowance of demands against an estate, was made adversary where in many instances under the old code it was merely ex parte. . . .
“It needs no argument to sustain the view that when a person dies his individual capacity to respond in damages for his torts, to pay his debts, to carry, out his contracts, and to distribute his estate ceases. Thereafter his financial obligations must be met by his estate. One who deems himself entitled to a part or all of such an estate, whether the right contended for is founded in tort, or upon oral or written contract, or under the will of the decedent, or under the statute of intestate succession, must recover, if at all, from the decedent’s estate. Under our probate code the probate court is made the forum for the transaction of this business, and it is given original jurisdiction to probate the will, if decedent left one, to appoint an executor or an administrator of his estate, to require an inventory and appraisement of the assets of the estate, to hear the petition of anyone who claims all or any part of the estate, after due notice to all parties interested so each may have his day in court, and ultimately to settle the accounts of the executor or administrator and to disburse the estate to those legally entitled thereto.
“Summarizing, this court except in matters involving the adjudication of secured demands and a few others where adequate and proper relief is not expressly provided for, is committed to the doctrine that the new Kansas probate code grants exclusive original jurisdiction to the probate court over all matters incident and ancillary to the control, management, administration, settlement and distribution of decedents’ estates, including the exhibition and establishment of claims and irrespective of whether those claims be denominated equitable or legal.” (pp. 854, 856, 857.)
In Erwin v. Erwin, 153 Kan. 703, 113 P 2d 349, it was said:
“We think the above provisions of the new code clearly indicate the lawmakers intended every claim to an estate or to any portion thereof should be presented to the probate court in order 'to facilitate prompt and orderly distribution of decedent estates. If, in the process of administration, a question arises over which the probate court has no jurisdiction, • the new code provides both the procedure and the remedy.” (p. 708.)
In the instant action appellant sought specific performance of an alleged oral contract by decedent to convey real estate by deed- or will. We pass the question of whether under the allegations of the petition the services which petitioner alleged she had performed and the improvements which she alleged had been made by her on the property were of a nature not compensable in money. For present purposes we shall assume — but not decide — that the petition stated a prima facie case for specific performance. The estate was being administered in the probate court and the real estate involved was part of the estate. Under such circumstances the exclusive, original jurisdiction of such an action now lies in the probate court. (Bebee v. Beem, 156 Kan. 115, 117, 131 P. 2d 675; Swisher v. Bouse, 155 Kan. 797, 130 P. 2d 565; Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242; Foss v. Wiles, supra; Dixon v. Fluker, 155 Kan. 399, 125 P. 2d 364.)
The pertinent provisions of the non claim statute of the code (59-2239, supra) read as follows:
“All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment.’’
We cannot agree that the word “demands” refers solely to claims to be paid in money. In view of the fundamental purposes sought to be accomplished by the new code we think the legislature intended the term “demands” as here used to be all-inclusive — to include all demands against the estate, whether legal or equitable in character, except in particular cases where the statute may expressly provide otherwise. All property in the estate is drawn into administration. Upon final settlement the court must determine the heirs, devisees, legatees, and by decree make proper assignment. The determination of an issue such as that here involved is as much a prerequisite to distribution as any money demand. To hold otherwise would defeat one of the purposes of the code — the plain legislative intent to unify administration and expedite the closing of decedents’ estates.
Our conclusion that this sort of a demand must be filed within nine months is further fortified — at least by analogy — by the provisions of the probate code that appeals from an order admitting or refusing to admit a will to probate must now be taken within nine months (G. S. 1941 Supp. 59-2404). If one who contests a will must now start in the probate court and appeal is barred after nine months, why should not one who claims a right, either legal or equitable, to estate property as against those claiming by inheritance be required to assert his claim within a nine-months period? We think that was the legislative intent and see no hardship in the requirement. And as we have repeatedly pointed out, the rights of litigants in the probate court have been further safeguarded in the new probate code by a liberalized procedure in the district court, upon appeal. (G. S. 1941 Supp. 59-2408; Foss v. Wiles, supra; Yeager v. Yeager, supra, p. 736; Meech v. Grigsby, 153 Kan. 784, 789, 113 P. 2d 1091.)
The instant action was not filed until almost a year after the first publication of notice of the administrator’s appointment. It follows from what has been said that the action was barred, the demand not having been exhibited within the nine-months’ period specified in the nonclaim statute.
It is unnecessary to consider the other grounds specified in the demurrer.'
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is the second appearance of this case. (156 Kan. 124, 131 P. 2d 889.) The last trial below resulted in a hung jury, and the cause is again brought here to determine questions which may be justiciable by intermediate appeal.
Plaintiff’s action is one to recover a money judgment against the defendant loan company and also against John R. Cauthorn its vice-president. The basis of the action, in its least controversial aspects, appears to have been about as follows:
Some years ago one Charles L. Morton was a building contractor in Wichita. In the summer of 1939 he had six houses under construction. One of them was being erected at 414 El Pyco street for V. H. Hearing. Hearing had borrowed $3,600 from the defendant loan company, for which he had given a mortgage .on the building site. There was the usual arrangement that the loan company would release funds of the $3,600 loan to pay Morton’s workmen (and other charges) as the work progressed. Morton seems to have drawn from the loan about $1,200 before the construction of the building had progressed far enough to justify so much of it. In July Morton was short of funds to pay his workmen who had been working part of the time on the Hearing residence and part of the time on the other houses Morton had under construction.
About that time Morton approached this plaintiff, Allen O.' Hendricks, for a loan of $1,000. Hendricks was induced to grant it, partly because of an agreement between him and Morton that he should receive half the profits on the construction of the Hearing residence, and partly upon alleged representations and assurances of John R. Cauthorn that Hendricks’s money would be perfectly safe; that Morton had a $3,600 credit deposit with the loan company which was to be devoted to the building of the Hearing residence; and that he, Cauthorn, would see to it that checks on the $3,600 fund would only be honored when signed by both Morton and plaintiff.
Relying on these alleged promises and representations, Hendricks loaned Morton the $1,000; but before paying it over, two instruments in writing, Exhibit B and Exhibit A, were executed, one by Morton and Hendricks, and one by Morton and the defendant company. These instruments were couched in the form of letters, and may be summarized thus:
Exhibit B, dated July 14, 1939, signed by Morton, recited that on that date Hendricks had lent Morton $1,000, which money he was using to assist in the construction of a dwelling house at 414 Elpyco. It continued—
“It is understood that I am to repay you this above mentioned sum of money when the house has been completed and accepted by the purchaser, V. H. Hearing. In the event that there remains a profit to me over and above the cost of building the house, it is understood that I am to pay over to you one-half of the said profit in addition to payment of loan above mentioned. If there is no profit, however, I am to be indebted to you only in the sum of $1,000 which in any event, I agree to pay when the full contract price of house has been disbursed by the Wichita Federal and Savings Loan Company pursuant to the mortgage agreement of which you have full knowledge.”
This exhibit also recited that—
“The effect of this letter of agreement shall be that of a promissory note, save and except that it shall not be negotiable fix' value, and its maturity shall be that day upon which the balance of the mortgage loan has been disbursed in full.
(Signed) Charles L. Morton.
All the terms provisions and conditions hereinbefore set out are hereby accepted by me this 14th day of July, 1939.
(Signed) Al Hendricks.”
Exhibit A, dated July 14, 1939, and signed by Charles L. Morton, is addressed to the defendant loan company and reads.
“In connection with the house I am building at 414 Elpyco, Wichita, Kansas, you are directed to make all checks which are drawn by me against the loan on this property payable to the order of Charles L. Morton and Allen O. Hendricks, jointly, and not otherwise.
“. . . if you agree and consent to follow the instructions contained in this letter until further written authority to the contrary by Allen O. Hendricks, would you kindly note your acceptance in the space provided below. . . .
(Signed) Charles L. Morton.
Accepted this 14 day of July, 1939.
The Wichita Federal Savings and Loan Company,
By (Signed) John R. Catjthorn,
Its Vice-President.”
As so often happens, the foregoing arrangements did not turn out as expected, and plaintiff brought this action alleging some of the facts summarized above, and also alleging that plaintiff was unaware of the financial arrangements between Morton and the loan company; that unknown to him Morton was insolvent on and prior to July 14, 1939; that Cauthorn, vice-president of the loan company, sent for plaintiff on July 14,1939, and that—
“Cauthorn represented to this plaintiff that his money would be absolutely safe, that there was no way that plaintiff could lose his money, because the defendant Morton, had on deposit with said loan company the sum of $3,600 and would be turned over to the said Morton which was false and untrue and known by said defendants to be false and untrue and made for the purpose of deceiving this plaintiff and with intention that the jilamtiff act' thereon; and that plaintiff did believe said statements to be true and relied thereon to his damage as herein set forth; that in truth and in fact there was only $2,600 in said loan, it being the Hearing loan on a dwelling house to be constructed for Mr. Hearing at 414 El Pyco and said $2,600 did not belong to the defendant Morton, and it in fact was the money of Mr. Hearing which was known to the defendants but unknown to this plaintiff.”
Plaintiff also alleged that on July 14, 1939, defendants knew that Morton was insolvent and had not paid his workmen, and that Morton’s affairs had reached a point where it was impossible for him to proceed further. without money, and that defendant loan company perpetrated the foregoing fraud on plaintiff to enable it to recoup some of its loss in its dealings with Morton—
“Well knowing that the plaintiff’s one thousand dollars would go into said houses on which said defendant loan company held mortgages and that it would benefit thereby to the extent of plaintiff’s loss, and knowing that plaintiff’s money aforesaid would be a total loss to plaintiff.”
Plaintiff also alleged that defendant Cauthorn stated to plaintiff that “he would personally guarantee the return of plaintiff’s money,” and stated that “no money would be drawn from the Hearing loan unless the checks were made payable to the defendant, Morton, and this plaintiff;” and he alleged that Cauthorn, vice-president, signed the acceptance as set out in Exhibit A; and in reliance thereon plaintiff had loaned the $1,000 to Morton.
Plaintiff further alleged that defendants had no intention of complying with the terms of Exhibit A on which they had written their acceptance, and that on the same day they did pay money out of the Hearing loan after executing that acceptance and after plaintiff had paid the $1,000 to Morton, without the knowledge and consent of plaintiff and for the purpose of cheating and defrauding this plaintiff.
Plaintiff also alleged that defendant Cauthorn falsely represented that plaintiff would get his money from the Hearing loan “regardless of liens or anything else,” and that plaintiff relied thereon to his damage in the sum of $1,000. Plaintiff also alleged that Morton had assigned all his interest in the Hearing building contract (and other building contracts) to the defendant loan company. -Plaintiff concluded his petition with a prayer for judgment for $1,000 — adding that by an order- of court requiring him to elect whether to proceed for breach of contract or in tort he elected to proceed in tort.
When the cause came on for hearing at the last trial, on May 3, 1943, defendants’ answer and plaintiff’s reply-had long been on file. But on motion of defendants’ counsel the trial court permitted their answer to be withdrawn, to enable their counsel to file an objection to the introduction of testimony and to file a demurrer tp plaintiff’s petition, and to file a motion to strike out of the petition all the allegations of fraud and conspiracy and any allegations tending to state a cause of action in tort, and particularly all such allegations as tended to charge R. M. Cauthorn (president of the defendant company) with acts of fraud, conspiracy or in tort or in contract, because he (R. M. Cauthorn) had theretofore been discharged from liability by order of court. As a further ground for the motion to strike, it was pleaded that the allegations of fraud, conspiracy and tort were at variance with plaintiff’s petition, and that such variance was shown in Exhibit B.
In defendants’ objection to the introduction of evidence it was urged that it would vary the terms of Exhibits A and B, and that any evidence on the theory of fraud would be contrary to the contracts set out in those exhibits. Defendants’ demurrer to the petition was based on the point that it did not state a cause of action and because there was misjoinder of causes of action and misjoinder of parties.
The trial court granted defendant’s motion to withdraw their answer, and to file their objections and demurrer. And after argument, the court sustained defendants’ objection to the introduction of evidence so far as it related to R. M. Cauthorn, and also as to conspiracy. In other respects defendants’ motion and demurrer were overruled. Their answer and plaintiff’s reply were refiled, and the trial proceeded before a jury. Plaintiff’s evidence was substantially in accord with the material allegations of his petition, although on cross-examination it was brought out that he had not been altogether ignorant about the facts of the $3,600 loan having been made to Hearing and not to Morton when he loaned the latter the $1,000.
Defendants bring the cause here for appellate review on such phases of the lawsuit as can or should be decided before the parties are put to the expense of another jury trial.
And, first, as to the trial court’s rulings on defendants’ motions to strike, it is well settled that such motions are addressed to the trial court’s discretion. (Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566, syl. ¶ 2; Davies v. Lutz, 107 Kan. 199, 191 Pac. 485.) When a motion to strike is sustained it may so affect or impair the pleader’s cause of action or defense that the ruling is in effect a final order for which the civil code gives a right of appeal. (G. S. 1935, 60-3302, 60-3303; Grain Co. v. Coöperative Association, 109 Kan. 293, 198 Pac. 964, syl. ¶ 4; G. S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861, 84 P. 2d 934.) But the converse of such ruling has no such consequence. The overruling of a motion to strike may leave some surplus, immaterial or redundant matter in the pleading, but it does not strip the pleader of his cause of action or defense. In short it is not a final order which will authorize an intermediate appeal. Thus in Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039, it was held:
“An order overruling a motion to strike out parts of an answer, which does not involve the merits nor determine the action, is not appealable, and can only be reviewed in this court after final judgment in the action.” (Syl. ¶ 1.)
In Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062, where error was assigned on the overruling of defendant’s motion to strike some allegations of plaintiff’s petition it was said:
“The petition may have contained unnecessary allegations, and some of the allegations may have been been set out with unnecessary prolixity, but they did not prejudice any substantial right of the defendant. He was fully informed of the nature of the plaintiff’s cause of action. It was within the sound discretion of the trial court to refuse to strike out any part of the petition on the request of the defendant, (citations.) Even if some of the' allegations should have been stricken out, the refusal of the court to strike them out was not sufficient error to warrant a reversal of the judgment. (Civ. Code, §581.)” (p. 159.)
Touching the error assigned on the overruling of defendants’ demurrer to the amended petition, we think that whatever criticisms might be directed against the pleading as a work of the pleader’s art, it certainly does state a cause of action. It sufficiently states that plaintiff was induced, in part at least, to lend his $1,000 on the misrepresentation of John M. Cauthorn, vice-president of the defendant loan company, that Morton had a credit deposit of $3,600 with the loan company, when in fact he had no such credit, and that while the original credit loan was for $3,600, it had been made to Hearing, whose house Morton had contracted to build, and even that amount had been reduced to $2,600 at the time Cauthorn made that misrepresentation which plaintiff relied on.
It may be true that Cauthorn’s verbal assurances that plaintiff’s money would be absolutely safe, and that he, Cauthorn, would personally guarantee the return of plaintiff’s money would not support an action for breach of contract against Cauthom and the defendant company, but this action is one in tort, and what Cauthorn said and did to induce plaintiff to part with his money is competent on the issue of fraud and deceit on which plaintiff’s action in tort is predi•cated.
We hold that the errors assigned on the overruling of the demurrer to the petition and the demurrer to plaintiff’s evidence cannot be sustained.
It is insistently argued that the evidence to support this action in tort is inconsistent with the recitals of Exhibits A and B, viewing those exhibits merely as contracts. But their mere tenor as contracts is not their principal evidential significance in this lawsuit. When these exhibits are read in connection with the allegations of the petition and are considered in connection with all the other evidence, they appear to be pertinent incidents of the cause of action plaintiff has tried to state and which he is trying to prove — defendants’ alleged fraudulent scheme which induced him to part with his money.
The point of misjoinder of parties and of causes of action is not pressed and needs no discussion.
No material error is made to appear and the judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for wages and attorneys’ fees brought pursuant to the federal wage and hour law. Judgment was for the plaintiff. Defendant appeals.
The petition alleged that the defendant was a corporation engaged in buying, processing and selling at wholesale and retail poultry, eggs, cream and other meat and packing products; that it was subject to the laws of Kansas and the provisions of the Fair Labor Standards Act, which was in effect from and after October 24,1938; that the plaintiff was an employee of the defendant at Arkansas City, Kan., in the capacity of operator and cream buyer, and the number of the employees of the defendant at this point did not ex ceed three; that among his other duties he bought, tested and handled poultry, eggs and cream for the defendant from farmers and producers within a radius of thirty-five miles from this point for shipment to Wichita and to various points in Oklahoma, which products were reshipped from Wichita to various other points throughout the state and the United States; that the plaintiff was under the Fair Labor Standards Act. The petition further alleged that from the 24th of October, 1938, until the first day of February, 1939, plaintiff worked for the defendant sixty-three hours a week, for which he was entitled to receive twenty-five cents an hour for the first forty-four hours and thirty-seven and one-half cents for nineteen hours overtime, and that the defendant was indebted to plaintiff in the sum of $253.68 for wages. The petition further stated that each week the defendant paid plaintiff a small commission, the amount of which he was not able to state; that he had demanded the wages due him by virtue of his employment under the Fair Labor Standards Act and that defendant failed to pay him and he was entitled to $253.68 as liquidated damages for the wrongful refusal of the company to pay him his minimum wages. The petition also stated that it had been necessary for plaintiff to employ a lawyer and he was entitled to an allowance of reasonable attorneys’ fees in the sum of $250. The prayer was for judgment against defendant in the sum of $757.36.
To this petition the defendant demurred on various grounds, not all of which it will be necessary to notice. Included therein, however, was the allegation that the petition failed to state facts suffi-' cient to bring either plaintiff or defendant within the provisions of the Fair Labor Standards Act of 1938. This demurrer was overruled, whereupon the defendant filed a general denial.
The case was submitted to the trial court without a jury. The court made findings of fact and conclusions of law. The findings of fact generally were in favor of the plaintiff and the conclusions of law were that plaintiff was entitled to a judgment in the amount of $196.40-for wages, the same amount for liquidated damages and $300 as a reasonable attorney’s fee for the benefit of his attorney.
The defendant filed motions to set aside certain findings of fact and for a new trial. These motions were all overruled and judgment was entered according to the findings. From that judgment the defendant has appealed.
Defendant first argues that' the evidence of plaintiff established that he was not an employee of the defendant but was an independent contractor. Stated another way, the defendant argues that it was necessary for the plaintiff to prove that he was an employee of the defendant and that there was a total absence of any proof of any of the elements necessary to constitute plaintiff an employee of defendant. The act in question is known by the title “The Fair Labor Standards Act of 1938.” It appears in Title 29 of the United States Code Annotated, sections 201 to 219 of chapter 8. It covered many phases of the labor problem in the nation. Amongst other things it provided that every employer should pay to each of his employees, who was engaged in commerce or in the production of goods for commerce, twenty-five cents an hour for the first year after the effective date of the act. (See Title 29 U. S. C. Á., ch. 8, sec. 206.) The act also provided that any employer who should violate the provisions of section 206 should be liable to the employee in the amount of his unpaid minimum wages and an equal additional amount as liquidated damages and that an action to recover this might be maintained in any court of competent jurisdiction by the employee and that the court in such action should in addition to this allow reasonable attorneys’ fees to be paid by the defendant. (See Title 29, U. S. C. A., ch. 8, sec. 216.)
On account of these provisions many actions have been begun in state courts to collect the wages provided, even though the liability is provided by a federal statute. Thus it became necessary for the plaintiff to prove in this action that he had been an employee of the defendant; that he had been paid less than twenty-five cents an hour after the act went into effect and that he was engaged in commerce or the production of goods for commerce.
There is not a very sharp dispute in the evidence. The difference of the parties is rather in the conclusion to be drawn from the various circumstances about which the plaintiff offered testimony.
Plaintiff first went to work for The Western Creamery Company, the rights of which passed later to the defendant, in May, 1933. At this time he and The Western Creamery Company entered into a written contract which by its terms was to be good for only six months. By this contract the creamery company agreed to pay one-half the rent of the location where the station was located, and Bush was to receive a commission of two cents for butterfat received in Wichita. Bush continued to work for the defendant after it succeeded to the rights of The Western Creamery Company but made no other contract. This written contract was modified from time to time by letters and oral conversations had between the parties, so that finally at the time we are considering the defendant was paying all of the rent, the gas, light and water bills, and was paying plaintiff a commission of a cent a dozen for eggs purchased and a cent a pound for poultry. It was his duty, among other things, to test the cream for butterfat, to candle the eggs and put them in containers and to weigh the chickens and put them in coops, and to put the cream in cans.
Plaintiff bought this produce from farmers who had produced it on farms in and around Arkansas City. He paid for it with checks of Wilson & Company, signed by himself. The defendant had given him the right to draw checks against its account and had caused him to be covered by a fidelity bond. Every few days a truck from the defendant’s Wichita plant would come along and he would help the truck driver load the chickens and cream and eggs on the truck. He had the right to sell some of this produce if he called the home office first, and when he did he sent the money in to the company by the truck driver. There was evidence that Wilson & Company owned the cream cans and testing equipment and furnished the mechanical equipment with which- plaintiff did business. The equipment consisted of glassware, test bottles, sample bottles,-sulphuric acid, water tank, heater and stove, also a battery for the poultry coop, egg cases and an equipment to candle eggs. He paid for this produce whatever Wilson & Company told him to pay. They advised him when there was any change to be made in the price which he could pay. He received instructions several times a week and supervisors would come two or three times a week and instruct him about what he should do. The sign over the place of business said “Wilson & Company,” with the words “E. G. Bush” underneath. He worked from seven in the morning until six at night, unless the truck driver would come in after six, then he would stay and help him load out, and on Saturday he worked until nine. Supervisors for defendant had told him what hours to stay open and that he must be sure and stay open on Saturday until the farmers had all finished their trading which was usually by nine o’clock. All together the evidence of plaintiff disclosed that he did do the kind of work that cream-station operators generally do throughout the country.
The defendant reviews this evidence and argues that it disclosed that the contract between plaintiff and defendant was that the plain tiff should operate on a commission basis — the more he bought the more he would be paid — and' that the interpretation given by the trial court to the contractual relationship between these parties would encourage the plaintiff to sit down and do nothing because he would be paid just the same, whether he bought much or little cream and eggs and poultry.
The question whether a person is an employee of another has received the attention of this court many times. The rules are somewhat different when we are dealing with a workmen’s compensation case or a case that involves the unemployment insurance act or a case of the sort that involves the Fair Labor Standards Act, such as we have here. There are some general rules, however, which may be said to apply to all cases generally. One often is known as the "right to control” rule, that is, whether a person is an employee of another depends upon whether the person who is claimed to be an employer has a right to control the manner in which the work is done. It has been pointed out many times that this means not actually the exercise of control, but does mean the right to control: (See Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868, and Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186.)
On a demurrer to the evidence it is the duty of this court to take all of the circumstances about which testimony was offered and draw any reasonable inference from them that would uphold the theory of the plaintiff. When we do that we have no trouble at all in reaching the conclusion that there was ample evidence to warrant the court in finding that this defendant did have the right and authority to direct and control the manner in which the work of the plaintiff was carried on.
Of interest in this connection is the holding of this court in Sims v. Dietrich, 155 Kan. 310, 124 P. 2d 507. There the rule is set out as follows:
“Following Houdek v. Gloyd, 152 Kan. 789, 107 P. 2d 751, it is held: (a) ‘A master is a principal who employs another to perform service for him, and who controls or has the right to control the physical conduct of the other in the performance of such service, and the servant is the person so employed.’ (Syl. If 2.) (b) ‘An independent contractor is generally one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.’ (Syl. ¶ 3.)
“In determining whether one acting for another is a servant or an inde pendent contractor, the following matters of fact, among others, are to be considered: (a) whether the employer or the workman supplies the tools used; (b) the length of time for which the person is employed; (c) the method of payment, whether by the time or by the job; (d) whether or not the work is a part of the regular business of the employer.” (Syl. ¶[¶[ 1, 2.)
The trial court did not find in so many words that plaintiff was an employee of defendant, but did find certain facts from which it concluded as a matter of law. that plaintiff and defendant were under the statute. This implied a finding that plaintiff was an employee. The defendant attacks these findings generally by proper motions to set them aside, but we have concluded that they are all sustained by substantial evidence and that the trial court did not commit any error in overruling these motions. We should not pass this phase of the case without referring to the provision of the act with reference to what shall constitute an employee. Section 203 of the United States Code Annotated, Title 29, chapter 8, being section 3 of the act, contains various definitions. Subparagraph (e) provides:
“ ‘Employee’ includes any individual employed by employer.”
Section 203 (g) provides:
“ ‘Employ’ includes to suffer or permit to work.”
This act was intended as a comprehensive regulation of the rate of pay and hours of labor of employees generally in the nation engaged in commerce as defined by the act. The definitions in the statute are couched in such general terms that they are subject to interpretation by the courts. Thus it is proper for this court to look to its own authorities for a definition of the word “employer,” and we have no trouble in concluding that as these definitions have been announced many times by us this plaintiff was an employee of defendant even though he was most of the time at the station by himself and even though his pay under the arrangement between the parties depended upon a commission rather than payment by the hour.
Appellant next argues that the plaintiff was not engaged in the production of goods for interstate commerce and hence was not under this act. There was evidence to the effect that the products that the plaintiff bought were shipped by truck to Wichita and handled by Wilson & Company in the usual course of its business. Counsel for the defendant, during the examination of a witness for the defendant, stated that he had admitted in his opening state ment that Wilson & Company were engaged in interstate commerce. There does not seem to have been any question but that such was the case. Certainly the question cannot be raised at this time on appeal that the goods bought by plaintiff were not used by the defendant in the regular course of its business.
The next question urged by defendant is that the plaintiff was exempt from the act under its provisions. In that argument it relies on a provision of the statute which provides that certain employees shall not be under the act. This is section 213 of the United States Code Annotated, Title 29. That section provides, in part, as follows:
“(a) The provisions of sections 206 and 207 of this title shall not apply with respect . . . (10) to any individual employed within the area of production (as defined by the administrator), engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products.”
Defendant points out that plaintiff was buying his cream and eggs and poultry from farmers around Arkansas City; that hence he was employed within the area of production of the goods he handled and under the terms of the act he was exempt. This sends us first to the examination of the various regulations which the wages and hour division has issued pursuant to authority conferred in the act. Regulation 536, issued under date of November, 1938, provided that “area of production” meant that the products or commodities must come from farms in the immediate locality and the number of employees must not exceed seven. (See Regulation U. S. Department of Labor, Wage and Hour Division, November, 1938, 536-2b.) In December, 1940, the division issued a regulation, 536-2, providing that the term “immediate locality” meant produced within ten miles of the establishment where he was employed and in open country or in a rural community, but provided that “immediate locality” should not include any distance more than ten miles, and “open country” or “rural community” should not include any city or town of 2,500 or greater population. (See Regulation U. S. Department of Labor, December, 1940, 536-2a, d.) In December, 1941, there was another regulation which said that instead of general locality the term “area of production” meant general vicinity. (See Regulation U. S. Department of Labor, Wage and Hour Division, April, 1941, 536-2a.) In June, 1940, the division issued what is called an Interpretative Bulletin. It covered various phases of this act. This interpretative bulletin held that in order for the exemption set out in the statute to apply to an employee, he must be doing these things for market. The bulletin stated:
“An employee engaged in canning commodities for later recanning by his' employer would not be engaged in canning for market and hence would not be exempt.”
This bulletin further contained the following paragraph, being paragraph 26 of the Interpretative Bulletin No. 14 of the United States Department of Labor, Wage and Hour Division. Paragraph 26 provides as follows:
“The operations included in this term appear to be those physical operations customarily performed in obtaining agricultural or horticultural commodities from producers’ farms, transporting them to and receiving them at the establishment, weighing them or otherwise determining on what basis the producer is to be paid, placing them in the establishment where further operations are to be performed, and delivering the commodities to warehouses. Specifically, these operations include loading the commodities on trucks, wagons, etc., in producers’ fields or at concentration points, transporting them to the establishment, receiving and unloading them at the establishment,counting or weighing the commodities, assembling, binning, piling, or stacking them in the establishment, moving them from one place to another in the establishment, moving the bags, boxes, cases, barrels, bales, coops, and other loaded containers to wagons, trucks, railroad cars or other conveyances, and transporting the commodities away from the establishment. Since it makes no difference that the employer does not own the goods being handled, the employees of brokers or commission houses who physically handle the goods may be within the exemption.”
The interpretative bulletin of the department is not binding upon this court, but we have always paid considerable attention to operative interpretations. This tends to bring about a uniform application of statutes generally and to cause the machinery of government to operate more smoothly. We are disposed to give the interpretative bulletin considerable weight here. Furthermore, where the defendant seeks to take advantage of the exemption set out in the statute it has the burden of showing that this employee is under the exemption. The statute provided that in order to be exempt the handling must be done for market., and contemplates, as we construe it, that it will reach the market in the raw state in which the employee handles it. Hence the burden was on the defendant to show that the eggs and poultry and cream would reach the market in the same raw state in which the plaintiff handled them. The record does not disclose but what the defendant made cheese and butter of the cream, killed and packed the chickens and stored or dried the eggs. Under such circumstances, we hold that the work performed by the plaintiff was not handling this produce for market and did not bring him within the exemption provided in this act.
The defendant next argues that there was no competent evidence that plaintiff was entitled to recover any amount under the wage and hour law. Defendant bases that argument on the fact that, as it claims, plaintiff did not testify accurately as to the number of hours he worked for the defendant. The plaintiff did testify that he came to work at seven in the morning and worked until six at night on the days in question unless the truck driver would catch him and drive in after six and then he would stay and help him. On Saturdays he worked until nine p. m. He also “testified he received commissions amounting to $36 during the time in question. The trial court found that plaintiff worked at least sixty-three hours per week and that the money he received from defendant would ■amount to three and one-half cents an hour. There was certainly substantial testimony upon which the court was entitled to make that computation.
We have examined the various motions made by the defendant asking that certain findings of fact and conclusions of law be set aside, and have concluded that they were sustained by the evidence and that the trial court was correct in not setting them aside.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
These actions were brought to recover damages alleged to have been sustained on account of a defective highway. Judgment was for the plaintiffs overruling the demurrers of the defendant to the petitions. The defendant appeals.
The actions were brought by one Brock, who was driving the automobile which was involved in the injury, and by three people who were passengers in this automobile. The petitions were identical except for the allegations about the party who was bringing each action and the amount of damages. On that account the allegations in the petition of the Brock case will be noted in this opinion. The cases were consolidated in the court below. The demurrers were argued together and when the appeal was taken they were consolidated in this court.
The petition alleged that on the 17th day of December, 1939, about six o’clock in the evening, the plaintiff was driving his automobile in an easterly direction on highway 10 at a point near the peak of a hill and he collided with an automobile being driven by one Campbell, who was driving on the highway in a westerly direction; that at the time of the collision each automobile was being driven at a reasonable and proper rate of speed, that is, thirty miles an hour; that the automobile being driven by Campbell was immediately prior to and at the time of the collision being driven with its right wheels within eighteen inches of the north ditch of the highway. This would place the Campbell automobile on its own side of the road. The petition further alleged that the automobile being driven by plaintiff was being driven at the time and immediately prior to the collision with its right wheel within eighteen inches of the north edge of a ridge of sand, which is described later in the petition. This would place plaintiff’s car on its own side of the road. The petition alleged that the collision was directly and proximately caused by the defective condition of the highway and described this defective condition as follows:
“(a) Said highway at said point was of sand and gravel, having' ditches extending on each side thereof at a depth of approximately two to three feet. That immediately beyond said ditches a sand and gravel bank existed extending perpendicularly to a height of from four to six feet at or near the peak of said hill where the collision occurred.
“(b) For' many months prior to December 17, 1939, the width of said highway from shoulder to shoulder was approximately eighteen feet.
“(c) For many months and during all the time the defendant highway commission maintained said highway, the slope of said roadway at and near the peak of said hill where the accident occurred was such that the drivers of two vehicles meeting at or near said point were prevented from seeing each other beyond a distance of approximately 125 feet.
“(d) Said defendant, through its agents, servants and employees, placed or caused to be placed a dangerous obstruction upon and along said highway and more particularly at or near the peak of said hill where said collision occurred, in that it placed or caused to be placed at said point a ridge of dark, muddy-colored sand of the same general color and appearance as the remain ing portion of said highway, upon the south side thereof, the south edge of the base of said ridge of sand being located Upon said highway at or near the peak of said hill at a distance of approximately three feet from the edge.of the south shoulder of said highway, said ridge at said time being from two and one-half to three feet wide a-t the base and from one to three feet in height. In addition thereto, said defendant had placed or caused to be placed at said point at or near the peak of said hill, immediately north of said ridge of sand, a pile of sand from two to three feet in width, its height varying from ten inches to three feet, which extended north into the highway a distance of approximately four to six feet from said ridge of sand, leaving approximately eleven feet open for travel and free from obstruction in said highway. Said condition of said highway as described herein had existed for more than five days prior to December 17, 1939.
“(e) That the condition of said highway as it existed at or near the peak of the hill where the collision occurred, and more particularly the obstruction then existing in said highway, could not be seen by travelers using said highway, whether they were approaching said hill from the east or the west; that due to the slope and grade of said hill, this plaintiff and Howard Campbell, the driver of the other car involved, had no opportunity to stop their cars, turn to one side or to take any other precautions for their safety due to the fact that said dangerous and defective condition then existing in said highway was not open to view but was concealed and could not be seen by either driver of the two cars involved in said collision.
“(f) At said time there' were no stop signs, warning signs, slow signs, danger signs, caution signs, or signs of any kind or character to advise the traveling public of the dangerous character of' said highway, and more particularly no signs to warn the traveling public of the dangerous and defective condition of said.highway as it existed at or near the peak of the hill where the accident occurred.”
After a motion of defendant to make the petition more definite and certain and to strike certain portions had been overruled the defendant demurred to it on the ground that it did not state a cause of action in favor of plaintiff. This demurrer was overruled — hence, this appeal.
The defendant points out the well-established rule that whether or not the immediate condition in a highway constitutes a defect within the meaning of the statute is a question of law. This court has considered many cases, sometimes on a demurrer to the petition, sometimes on a demurrer to the evidence and sometimes on a consideration of answers to special questions. In many of these cases we have held that the particular facts set out in the petition or proved by the evidence or found by the jury did not constitute a defective highway within the meaning of G. S. 1935, 68-419. Defendant argues further that since the plaintiff resisted the motion of the defendant to make the petition more definite and certain and since it is an action wherein the state has waived its immunity from liability it should be strictly construed. For the purpose of this opinion we concede the validity of the first of these rules, that is, the question of whether or not the facts set out in the opinion describe a defective highway is a question of law. As to the contention of the defendant that the petition must be construed strictly on account of the fact that the motion of the defendant to make the petition more definite and certain was resisted by the plaintiff and overruled by the trial court the petition should be construed strictly on this account insofar as a consideration of the allegations of the petition at which the motion to make more definite and certain was directed is concerned but not as to other allegations at which no motion to strike was leveled. This motion to strike will be dealt with later in this opinion. As to the contention of the defendants that the petition should be strictly construed because the action is based on a statute wherein the state has waived its immunity from liability, we have examined the authorities cited to sustain this proposition by the defendant and find that they hold that a statute waiving immunity from liability must be construed strictly. We do not find any authority that a petition based on such a statute must be construed strictly.
When we examine the allegations of the petition we find that on account of the windrow of sand along the south side of the highway, together with the pile of sand placed immediately north of the windrow, and extending north farther into the highway, there was not more than nine feet of highway left in which cars could proceed at this particular point. This constituted a sudden narrowing of the space available for cars to use the highway.
In Neiswender v. Topeka Township, 148 Kan. 113, 79 P. 2d 839, the defect in the highway was the precipitous drop in grade of sixty-five feet within a distance of three hundred feet and an extremely rough and uneven surface of the highway. The petition alleged that a car being driven by the plaintiff came to this precipitous drop suddenly and upon reaching the top was precipitated to the ground and turned over, killing the driver. We held that the petition stated a good cause of action for a defective township highway.
We followed Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, where we said:
“A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect.”
In Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051, the jury answered special questions and found in favor of the plaintiff. On the question of whether or not the established facts constituted a highway defective it appeared that the alleged defect was a deep ditch which was concealed by weeds into which the plaintiff ran on'account of his efforts to avoid a collision with another car that was being driven thereon. This court spoke of the general rule to the effect that it was not necessary to keep the full width of a country road fit for public travel and as long as the highway was in a safe and passable condition to serve the reasonable needs of the public the fact that unused parts of the highway were dangerous did not constitute the highway defective. This court held that whether or not under all the facts and circumstances the highway was defective was a question of fact which was properly left to the jury.
The case is analogous to the instant case in that the condition of the highway, which was the cause of the injury to the plaintiff, was due to a situation with which he was suddenly confronted and of which he had no warning. In the instant case the sudden narrowing of the road on account of the windrow of sand and pile of sand, which the petition states could not be seen by travelers using the highway when approaching from either direction, constituted a hazard oft which the plaintiff could have no warning until too late to stop.
To the same effect is Story v. Brown County, 116 Kan. 300, 226 Pac. 772.
In Collins v. State Highway Comm., 138 Kan. 629, 27 P. 2d 216, the injury occurred on a gravel road. The defect complained of was a chuck hole two or three feet long, eighteen inches or two feet wide and six to eight inches deep. This court said:
“It is the bounden duty of every such authority to keep in a safe condition for public travel so much of the width of the road as is commonly used therefor. The commonly used portion of the highwaj^ where plaintiff’s car was upset was from twenty-five to thirty feet in width. Therefore the road to that width should have been kept in a safe condition for travel.” (p. 631.)
In Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106, the injury was caused by the plaintiff’s car running into deep ruts just at the edge of the concrete pavement. The pavement itself did not have any defect in it but this court said—
“There was testimony that the purpose of shoulders is to support the concrete slab, and not to provide a way for travel, which is true in a sense. But a hard-surface highway may be defective because it has no shoulders. Lack of any shoulder for a concrete slab eighteen feet wide, eighteen inches above the surface, and a mile long, would manifestly render the highway defective for purposes of travel. Of course the slab is intended to be and is the traveled way; but it is a matter of common knowledge that careful automobile drivers not only may on occasion, but frequently must, use the shoulders to some extent as a part of the highway, and a pitfall in a shoulder, adjoining or even adjacent to the slab, may constitute a defect in the highway.” (p. 283.)
In Cheney v. State Highway Comm., 142 Kan. 149, 45 P. 2d 864, the injury occurred on a bituminous-mat highway. This court quoted from Williams v. State Highway Comm., 134 Kan. 810, 813, as follows:
“ ‘A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect. The evidence tends so strongly to show that the highway was in a dangerous condition that whether it amounted to a defect under the statute became at least a question for the determination of the jury.’ ” (p. 153.)
When these rules are applied to the instant case we find that a fair interpretation of the facts alleged in the petition is that there was an obstruction placed in the highway so that the portion of the highway possible to be traveled upon was made so narrow that two cars could not pass without colliding. The petition alleges this condition to be the proximate cause of the injury sustained by the plaintiff.
The defendant argues that the petition is defective because it did not state just what happened at these sand piles that caused the cars to come together. The defendant filed a motion to make the petition definite and certain. It asked that the plaintiff be required to state whether or not the sand ridge was in a straight line; that a more definite statement be made as to the height of the pile of sand in the highway and the height of the ridge of sand be more definitely déscribed. In another paragraph of this motion defendant asked that the plaintiff be required to state what caused it to be impossible for the drivers of either car to see the alleged obstruction and that the plaintiff be required to state whether or not in ordinary practice there was anything requiring warning signs to be established.
The motion also asked that if the plaintiff was not able to state that the ordinary practice of the highway commission was to establish warning signs then the paragraph about warning signs should be stricken. This motion was overruled. We have examined the allegations of the petition which the defendant sought to have made more definite and certain and we fail to see where there is any uncertainty or ambiguity in the petition with reference to the matters at which the motion was directed.
The matter of interest to us in the question we are considering is that the motion did not ask that the plaintiff be required to state just how the collision occurred or just how the two cars came together. The petition did describe the defect in detail and contained an allegation to the effect that the collision was directly and proximately caused by the defective condition of the highway. As we .have observed, this allegation was not attacked by any motion on the part of the defendants to make it more definite and certain. In the absence of such a motion the statement as to the defect being the proximate cause of the collision is good on a demurrer to the petition even though it was a conclusion of fact. See Roberts v. Pendleton, 92 Kan. 847, 142 Pac. 289; Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677 and Ball v. Oil & Gas. Co., 113 Kan. 763, 216 Pac. 422.
Defendant makes a statement in its brief that there was no allegation that there was not sufficient travel surface to meet the needs of these two drivers and that so far as the allegations of the petition are concerned the width of the roadway was constant. A fair interpretation of the facts alleged in the petition is that there was a place in the roadway where the traveled surface was eleven feet or less in width. This was not enough for two cars to pass.
The allegations of the petition that both cars were proceeding at a reasonable rate of speed, that is, thirty miles an hour, and that there were no warning signs of the alleged defect and that at the time of the collision or immediately prior thereto each car was on its own right-hand side of the road certainly are not such a description of the defect and the collision as to constitute, on the part of the driver of the Brock car, contributory negligence.
The judgment of the trial court is affirmed.
Wedell, J., concurs in the result.
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The opinion of the court was delivered by
Parker, J.:
This is a workmen’s compensation case brought by the guardian of an insane workman, J. B. Holler (hereafter in the interest of brevity referred to as the claimant), to recover compensation.
The compensation commissioner heard the evidence, made findings and allowed compensation for one week’s disability.
The claimant appealed to the district court. That court found for claimant and increased the award of the commissioner. Three of the several findings appearing in the journal entry of judgment read:
“3. That J. B. Holler received an accidental injury arising out of and in the course of his employment with the said respondent on or about the 28th day of November, 1941.
“9. That the accidental injury to the back and spine of said J. B. Holler and the consequent results of the necessary, proper and indicated medical treatment and service to J. B. Holler, by respondent’s physician, Dr. C. H. Smith, M.D., resulted in said J. B. Holler’s being rendered totally disabled from earning wages and performing and carrying on manual labor, as a workman and employee of the respondent and that the period of time which said J. B. Holler will be so totally disabled is indefinite and will probably exceed 415 weeks from and after December 3, 1941, the date J. B. Holler was unable to perform his work after the injury to his back and spine.
“10. That this is an extreme case and claimant is in need of medical treatment and service for his injury and disability arising therefrom and is entitled to further award of not to exceed $500 for medical care and treatment which includes the sum of $51 medical treatment and service already rendered J. B. Holler, by Dr. C. H. Smith, M.D.”
The employer and insurance carrier appeal from the judgment of the district court.
A determination of the questions of law involved in this case requires an accurate and somewhat detailed summarization of the facts disclosed by the evidence.
It appears the claimant, who was a resident of California, was committed to the Camarillo State .Hospital in California on Febru ary 15, 1939, suffering from insanity diagnosed by the authorities of that institution as maniac depressive psychosis. Except for a few months, when he was paroled to his wife, he was confined in that institution until September 21, 1940, when he escaped and was later discharged as improved due to the fact the hospital authorities had heard nothing from him for a considerable period of time. Shortly thereafter, claimant came to Kansas, and in September, 1941, after having taken and passed a physical examination, went to work for the respondent and continued to work for it until and including December 2,1941.' The type of work performed by claimant, and the wage received, from September to November 16, is not disclosed, but from the date last mentioned to December 2, 1941, he was working in respondent’s yards, drawing and stacking pipe, and it is admitted received $27.68 for the week of November 16 to November 22, $25.93 for the week of November 23 to November 29, and $9.90 for the week commencing November 29 to and including December 2, 1941.
On December 18, 1941, the claimant was adjudged insane by the probate court of Crawford county and was on the 23d day of December of that year committed to the hospital for insane at Osawatomie, Kan., and since that date has never been released, discharged or paroled from such institution and there has never been any hearing for or adjudication of his restoration. On September 28, 1942, the date of the hearing before the commissioner, the claimant was present and testified as a witness on his own behalf. The mental ailment from which claimant was suffering when received at Osawatomie was diagnosed by medical experts there as schizophrenia or dementia praecox.
The foregoing is a summary of the pertinent uncontroverted facts and proceedings which we deem essential to a determination of this appeal. Other evidence pertaining to when and where the injuries alleged to have been suffered by claimant occurred, the nature and effect of such injuries and other pertinent facts which will be referred to were seriously controverted. Since many of them are essential to our purposes, such of them as we believe are required will be set forth as briefly as our consideration of the issues involved will permit.
The claimant, J. B. Holler, testified substantially as follows: While working for respondent, attempting to straighten the wheels of a truck which was loaded with clay pipe, he slipped and fell, falling in a sitting position with the tongue resting on the top^ of his body; the fall jarred his back and spine and caused a lot of pain in the left side of his back and in his head; he notified respondent’s office of the injury and went to Dr. C. H. Smith for treatment and was treated for his injury, continuing to work until December 2, when the doctor advised him to lay off work, which he did; his condition became worse and about noon on December 17th, after having received treatment at the doctor’s office, he awoke from a short nap with a terrible pain and agony in his back and his left side, the pain extending to the base of his head; he fell to the floor on his hands and knees and could not stand on his legs; later he was taken before the probate court and sent to Osawatomie; on the date he was giving his testimony his back was still painful and sore; from the occurrence of his injury to that date he had not done any heavy work and was unable to keep up his work at the state hospital because of the condition of his back due to the injury; that the man in charge at the state hospital took him off one job because he saw he could not get along very well.
Claimant’s mother testified that along about the middle or about the 20th of November he came home claiming he had hurt his back and that thereafter he continued to complain of pain from the small of his back to the back of his head and stated the pain ran up his spine to his head; that when claimant would get up he would brace himself with his hands and would walk with a limp supporting his back with his hands; during the entire fourteen months he was at her home, prior to having his back injured at the Dickey Clay Plant, he was apparently sane in every way.
Dr. C. S. Newman of Pittsburg, a physician and surgeon whose qualifications as a witness were not questioned by the respondent, testified in substance as follows: Holler was afflicted with a type of insanity known as schizophrenia, a type where the patient has lucid intervals; he had talked with and observed him before he took the witness stand and was of the opinion that on the date he testified Holler was having a lucid interval and was sufficiently in possession of his mental faculties to understand the nature of an oath and to relate the facts and circumstances of his injuries; he was competent to give testimony as a witness and would give a correct account of what he had seen, heard, felt-and experienced; from his observation of him as a witness he would say he was able to testify and understood fully the questions asked and the answers made by him.
In response to a hypothetical question detailing the history of the claimed injuries, consequences and treatment, the witness made the following answer:
“I believe that his mental condition could have been aggravated or brought about, that is, the condition of a man who had suffered from dementia praecox could be touched off by an accident and subsequent treatment as described. In my opinion his mental condition was probably brought about by his injury and subsequent treatment. I have an opinion that there is some rigidity and tenderness in the back at this time. In my opinion he had a ligamentous injury to his back at that time (time of back injury detailed in hypothetical question). The rigidity and tenderness would indicate there had been a severe injury there, in that it has persisted over this period of time. In my opinion this back condition would cause some disability for hard manual labor. I can only say that the condition probably exists for an indefinite period. Only time will tell on that. Mr. Holler’s mental condition is schizophrenia, dementia praecox.”
The witness further testified: Assuming claimant had received the injury that brought on the condition in his back as found by him on his physical examination, the probable length of time the injury would probably disable him from the performance of ordinary manual labor in the future would be indefinite; assuming Holler had had a lucid interval and based on the history of claimant’s case, it was his opinion Holler might have gone on working if he had not had the accident and the treatment described. In response to another question as to whether or not it was possible he could have gone ahead and continued to work if he had not had the accident and injury and treatment he stated, “Yes I think it enters the realm of probability.”
On cross-examination Doctor Newman testified: In his opinion and judgment on September 28, 1942, and at all times he had observed and talked with him (which was between September 26th to 28fh) Holler was of sound mind; persons afflicted with schizophrenia when they were having lucid intervals were sane; outside influences such as accidents or trauma, mental or emotional upsets, had a tendency to impel individuals so afflicted over the brink and bring about recurrences of attacks; if claimant’s back injury was muscle injury exclusively it should have been recovered long before the date he was testifying as a witness but if it was ligamentous it would not; treatment would be beneficial and lack of treatment would extend the duration of the disability. As part of his cross-examination the following questions were asked and answers made:
“Q. Doctor, what is meant by this term schizophrenia? A. That is a disease of young people. It comes on usually in comparatively early life. It has different manifestations. Some of them will develop one set of symptoms and others entirely different. We have a catationic type, in which the individual loses control of their muscles — which this man evidently was not— where if you put them in a statuesque position they will stay there. Some' of these patients in a hospital, you can lift an arm and go off and leave them lying there with that arm lifted, and it will stay there until it falls from exhaustion. Other types exhibit other symptoms, which are maniac at times. In fact, schizophrenia like some other diseases, simulates some of the other forms of insanity in different periods.
“Q. Now, Doctor, in answer to Mr. Bruner’s question as to whether or not his mental condition could reasonably be considered as having been brought about by the alleged injuries related in his hypothetical question, wa^it your answer, Doctor, that his mental condition could have been aggravated or brought about by the accident and subsequent treatment? A. I think that is correct.
“Q. Then, Doctor, you are testifying that it was? A. I think I said that it probably was, in my opinion.
“Q. And you say it probably was aggravated or brought about by it? A. That is right.
“Q.. And in giving that answer, Doctor, of course, that it could have been aggravated by the alleged injuries and treatment, you had in mind the history and background of a sufferer from schizophrenia? A. Yes, I think, of course, we have to make some differentiation in a lucid interval, in a condition of this kind. I think that man who had gone along over a period of many months and been going about normal work, that we will have to consider that as a different sort of a situation than a man who is still being retained in an insane asylum. I think he might well have been on the way to recovery in his former lucid interval, while it is quite possible that the lucid interval we observed in the court room here was merely a temporary thing, or a thing that would last only a short period, maybe a few days, maybe a few weeks.
“Q. In fact, Doctor, isn’t it correct that a patient of the build and age of Mr. Holler, having suffered an injury of the type which Mr. Bruner has detailed to you in his hypothetical question, wouldn’t you expect him to be completely recovered before this time, assuming • proper treatment and assuming the injury to have occurred on November 20, 1941? A. No, I don’t think we could say that. Some of these ligamentous injuries are quite persistent.
“Q. Tenderness on pressure, as you have described it, Doctor, is what is commonly known as a subject symptom, is it not? A. Well, that is debatable. I think that in small groups of muscles, particularly in the back, that it can be considered an objective symptom, because the patient can’t tell definitely where you are pressing, and if he complains of pain and flinches consistently in the same place, I think it can be considered in the range of objective symptoms.”
The following questions and answers appear as a part of his redirect and recross examination:
Redirect examination:
“Q. Now, Doctor, have you an opinion as to how long this lucid interval Mr. Holler had while he was working for this respondent from September until he was injured in November, 1941, would have continued if he had not had this accident to his back and the subsequent treatment recited in the hypothetical history? Do you have an opinion? A. Well, that interval might have gone on indefinitely or it might not; one couldn’t say. It might have gone on indefinitely; for years. The schizophrenia might never have recurred.”
Recross examination:
“Q. Doctor, you say it might have gone on indefinitely or it might not, is that right, the lucid interval? A. That is right.
“Q. And it might have recurred shortly, might it not? A. It is possible.
“Q. And taking in consideration the history of this patient, wouldn’t you say that was within the realm of probability, as you expressed it, that it might recur shortly? A. Well, I would just say the history I have heard here would give no indication that it was about to recur or that it might recur soon.”
During the trial Dr. S. D. E. Woods, superintendent of the State Hospital at Osawatomie, witness for respondent, testified as follows:
“Q. Now, one of the causes that could cause this condition is the effect of a shock, isn’t that right, doctor, this schizophrenia paranoid type? A. I don’t think it is very probable.
“Q. Would you say it might aggravate it or activate it, Doctor? A. It might be predisposing.
“Q. These types of cases, Doctor, often times they get to the point where they can go back to civilian life and work, can they not? A. Oh, yes.
“Q. And apparently get along all right; that is, may carry on labor and work for a number of years; isn’t that right, Doctor? A. Yes.
“Q. And some form of shock may come to them and they are already predisposed to that condition, and that flares it up or lights it up and puts the brain back in a bad mental state again, isn’t that right? A. Just as you would refer to it as a predisposing factor; I wouldn’t say it was a causing factor. We don’t know the cause of functional insanity.”
With respect to the meaning of the word “predisposing” the record shows testimony of Doctor Newman was as follows:
“Q. Doctor, what, in your opinion, does the term predisposing mean, in the • language of medical profession to a doctor?
“A. It means the cause or forerunner of the thing that would bring about the condition.”
It should be here stated that many of the pertinent facts in the related evidence were controverted by witnesses who testified in behalf of the respondents and that as to some of such facts more than one witness disputed them. It should also be stated no attempt has been made to relate, nor have we considered, evidence adduced by appellants and which supports their version of the factual situation, since on a review of special findings of the trial court this court is concerned only with evidence which supports or tends to support the findings made and is not permitted to consider evidence unfavorable thereto. (Smith v. Cudahy Packing Co., 145 Kan. 36, 40, 64 P. 2d 582; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 70; Walker v. Finney County Water Users Ass’n, 150 Kan. 254, 257, 92 P. 2d 11; Williams v. Cities Service Gas Co., 151 Kan. 497, 499, 99 P. 2d 822, and Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 118, 114 P. 2d 841.)
Since the determination of appellants’ principal specification of error that the award of compensation is not supported by sufficient evidence depends in part upon the question of the competency of the claimant as a witness, we first direct our attention to that subject. Appellants’ claim is that a person who has been adjudged insane and at the time of his production as a witness is confined to a state hospital for the insane is an incompetent witness and in support of their contention cite G. S. 1935, 60-2805, the pertinent portions of which read:
“The following persons shall be incompetent to testify: First, persons who are of unsound mind at the time of their production for examination.”
It is true, as contended by appellants, claimant was on the date of his production as a witness an inmate of a state hospital for the insane under an adjudication he was insane on the date of his hearing in the probate court. It is also true there has been no adjudication of restoration to sanity. However, it should be noted the statute does not state a person is incompetent because he is confined in an institution for the insane. It states a person is incompetent who is of unsound mind at the time of his production for examination. Doctor Newman’s testimony was that Holler was experiencing a lucid interval and was sane on the day he was produced as a witness. Although neither the commissioner nor the district judge made a specific finding as to this fact, we must assume they believed that testimony, for both officials permitted him to testify, over objection of counsel, and made an award of compensation based in part upon his evidence. We must determine whether their action in so doing was in violation of our statute.
This question was considered by this court in the recent case of Toepffer v. Toepffer, 151 Kan. 924, 101 P. 2d 904, wherein it was held:
“An adjudication of insanity creates a presumption of continuing insanity, but the presumption is a disputable one and may be rebutted by any competent evidence of a subsequent sound condition of mind at a particular time.” (Syl. ¶[ 1.)
In 28 R. C. L. 451, § 38, it is said:
“Owing to imperfect understanding of the nature of insanity, its many forms and varying effects, it was considered at common law that every insane person was wholly and absolutely non com/pos mentis and incompetent to testify. And the statement was broadly made in a number of American cases, most of which were decided in the first half of the nineteenth century, that insane persons and idiots were not competent witnesses. But in more recent times the courts, keeping pace with the progress of science, have greatly relaxed the rigor of that rule and now agree'that a lunatic or a person affected with insanity is competent as a witness if he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue. Otherwise, he is not competent. In other words, a lunatic, from the condition of his mind, may not be a competent witness, but his competency on that ground, the same as want of capacity from infancy or other cause, must be determined by the court. . . .”
In 70 C. J. 91, it is stated:
“One of the tests of the competency of a witness is his intelligence and understanding, the ability truthfully and intelligently to relate the incidents within his knowledge. The test of the competency of a witness as regards his mental capacity is, in general, whether he has sufficient capacity to observe and describe correctly the facts with regal’d to which he is called to testify, and sufficient understanding to appreciate the nature and obligations of an oath, or, as it has been otherwise stated, the witness should have sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility, and the same general principles apply to mental derangement or deficiency, as to mental immaturity. The competency of a mentally immature or deranged witness has been said to present questions very closely related to those involved in the matter of the credibility of a witness. The question of the mental competency of a witness is addressed largely to the discretion of the trial court, and a witness should not be debarred from testifying on the ground of mental incapacity unless the proof of such disqualification is clear and conclusive.”
See, also, 70 C. J. 94, which reads:
“The witness must have an intelligent comprehension of the facts to which he testifies. One who is so insane that he cannot give a correct or rational account of the matters which he has seen or heard with reference to the questions at issue is not a competent witness, and it may be stated generally that at common law a person non compos mentis is not competent to testify. The general rule is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and be capable of giving a correct account of the matters of which he has seen or heard with reference to the questions at issue, and the same effect has been given to statutes excepting persons of ‘unsound mind’ from those who are competent as witnesses, or excepting ‘insane persons who are in an insane condition of mind,’ or providing that persons who have not the use of reason, such as idiots or lunatics during lunacy, are incompetent witnesses. . . .”
Here there was no refutation of the testimony Holler was experiencing a lucid interval, that he had sufficient understanding to comprehend the nature and obligation of an oath, and that his mental capacity was such he could understand and intelligently answer the questions which were propounded to him by .counsel. We think there is nothing in our statute which makes a person incompetent as a witness under such circumstances, notwithstanding the fact he may at the time be under commitment to one of the mental hospitals of the state. If the trial court, after consideration of the testimony as to Holler’s mental condition,' believed he had sufficient understanding to qualify as a witness and that he was not of unsound mind at the time of his production as such, it could properly, in the exercise of its discretion, permit him to testify and give credence to his testimony.
Appellants strenuously contend the judgment of the district court awarding claimant compensation for 415 weeks is not supported by substantial competent evidence. .The reply to that contention is to be found in the evidence of the claimant. The trial court found, based upon the testimony of these witnesses, that the accidental injury to the back and spine of claimant and the consequent treatment resulted in total disability and that the time of such disability was indefinite and would probably exceed 415 weeks from and after December 3,1941.
Under G. S. 1935, 44-556, this court on appeal in compensation cases is limited to a review of “questions of law.” That the question of whether a judgment in such a case is supported by substantial, competent evidence is a question of law, as distinguished from a question of fact, has been determined by this court. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Gallagher v. Menges & Mange Const. Co., supra; Williams v. Cities Service Gas Co., supra.) We believe an examination of the testimony referred to will convince the unprejudiced observer, as we are convinced, the finding and judgment of the trial court was sustained by an abundance of substantial and competent testimony. Having determined that question there is nothing we can do about the trial court’s decision. It is not for us to say what testimony should be given credence or what evidence should be disbelieved. Under the rule often announced it is the function of the trial court, not the appellate court, to weigh conflicting evidence. (Brown v. Olson Drilling Co., 155 Kan. 230, 231, 124 P. 2d 451; Earhart v. Wible Ice & Cold Storage Co., 150 Kan. 695, 698, 95 P. 2d 366; Johnson v. Voss, 152 Kan. 586, 589, 106 P. 2d 648, and Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325.)
Nor is it of benefit to appellants, assuming but not conceding the evidence of physical disability, standing alone, was not sufficient to uphold the trial court’s award, to point out that claimant was afflicted with schizophrenia or dementia praecox prior to the sustaining of his injuries. Our compensation law prescribes no standard of health for workmen and it is well settled that accidental injuries are compensable where the accident only serves to aggravate or accelerates an existing disease or intensifies the affliction. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496, and Williams v. Cities Service Gas Co., supra.) Insanity is a disease, and the evidence here was that the injury was the cause or the forerunner or the circumstance which aggravated and brought about the recurrence of the mental affliction of claimant shown to exist on the date of the hearing before the commissioner.
It is urged the award of $500 for medical expense is not supported by evidence. In fact, it is argued that portion of the judgment is without support or a word of testimony and there was no evidence to show the need for any further medical treatment or hospitalization. The statute (G. S. 1941 Supp. 44-510 [1]) provides that in extreme cases the commissioner may after proper showing require the employer to provide medical, surgical and hospital treatment in an amount not in excess of $500. Appellants quite properly insist an allowance for medical services, etc., must be based on evidence (Orozco v. Central Coal and Coke Co., 121 Kan. 690, 249 P. 604). The same rule is applicable to the finding an emergency exists. What was the evidence? The obligation to Doctor Smith for serv ices in the amount of $51 was conceded. Doctor Newman’s testimony was that treatment would be beneficial and lack of treatment would extend the duration of the disability. The claimant was confined in a state hospital and could not be released until an adjudication of restoration or until released as improved in condition. Without further comment it can be said there was evidence upon which, as to the emergency, the finding of the court could be based. Under such circumstances this court is limited to a review of that question of law and cannot weigh the evidence (Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 797, 85 P. 2d 22). Moreover, the finding as approved, works no hardship on the appellants. One of the theories of treatment for a workman is that he may be rehabilitated so he can go back into industry, and under G. S. 1941 Supp. 44-510(1) appellants retain the right to question the reasonableness of, and the necessity for, medical services incurred in the future. We do have some difficulty with the judgment as evidenced by the journal entry. The finding was that claimant is entitled to a further award of not to exceed $500 for medical care, whereas the award is for the sum of $500 without limitation. The evidence disclosed a present obligation of but $51 for such care. The judgment as rendered is modified to comply with finding No. 10, made by the trial court. The balance of the $500 is not payable now but any treatment which is authorized under the statute, and for which the employer is liable, is properly payable when so authorized and incurred.
We find some merit in appellants’ contention the trial court’s finding No. 2, as to the claimant’s compensation rate was erroneous, although we cannot agree with their computation as to what the rate should be. It is conceded by all parties that claimant worked from November 16, 1941, to December 2, 1941, which was the last day he worked. Also, that during that period of time he worked continuously seven days a week and his total compensation was $63.51. We believe the error of the trial court rests in the use of a total working period of sixteen days when, in fact, the claimant worked seventeen days. In any event our computation 0discloses claimant’s ayerage weekly earning was $26.15 and his weekly rate of compensation was $15.69. Finding No. 2, as it now appears in the journal entry should be changed to so read and the judgment should be modified accordingly.
The judgment of the trial court as modified is affirmed.'
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The opinion of the court was delivered by
Harvey, J.:
This was an action to have a deed to certain real property held to be void, and for further relief. The trial court heard the evidence and made findings of fact and conclusions of law and rendered judgment for plaintiff. Defendant has appealed.
The pertinent facts disclosed by the pleadings and exhibits and found by the court may be summarized or quoted as follows: In May, 1932, plaintiff was the owner of a described quarter section of land in Meade county upon which there was a first mortgage to a life insurance company for $2,250. She was indebted, also, to the Plains State Bank (hereinafter called the bank) in the sum of $1,720 and to William P. Elliott, the cashier and managing officer of the bank, in the sum of $100, and to secure this indebtedness she executed to the bank a second mortgage upon her land. By November, 1934, payments were delinquent upon both of the mortgages and there were some past due unpaid taxes on the land. Plaintiff, at the suggestion of the bank, applied to the Federal Land Bank of Wichita, which was acting as agent for the Land Bank Commissioner, hereinafter called Federal Land Bank, for a loan sufficient in amount to retire all liens upon the land. The Federal Land Bank agreed to make the loan in the sum of $3,100 on condi tion that all liens against the security be fully satisfied. After the payment of the first mortgage and taxes this sum would leave not to exceed $500 to apply upon the bank’s second mortgage. On November 19, 1934, there was due the bank on its second mortgage $2,150.48. On that date the plaintiff and her husband, as parties of the first part, executed a contract with the bank which recited that in consideration of $1,650.50, the receipt of which was acknowledged, the parties of the first part would sell and agree to convey to the second party plaintiff’s land, which was described, subject to a first mortgage of $3,100 the' first parties were putting on the land, to the Federal Land Bank. The first parties agreed to give immediate possession of the land, “and all allotment payments and rents hereafter paid are to go to second parties.” Apparently the Federal Land Bank had been advised some time prior thereto that the bank’s second mortgage on plaintiff’s land was only $500, for on that date, November 19, 1934, the Federal Land Bank wrote the bank:
“You hold a Note & Mtg. as an obligation of Elsie Mae Murphy for $500.00. Will you kindly state below the earliest date said indebtedness can be paid, giving the amount which you will accept in full satisfaction of the same. . . .”
The bank replied to this communication on January 11, 1935, stating:
“The balance of the indebtedness referred to above is $500.00 as unpaid principal and $ none unpaid interest up to the 1” day of February, 1935, upon which date or after which date said debt can be paid. . . .”
and that the debt was secured by a mortgage described by the book and page of its record.
“Upon payment to the undersigned of $500.00 . . . said sum will be accepted in full satisfaction of this claim. . . ' . The undersigned creditor further agrees, and, for the purpose of assisting the above named applicant in obtaining a loan from The Federal Land Bank and/or the Land Bank Commissioner, hereby represents to The Federal Land Bank and/or the Land Bank Commissioner that, directly or indirectly, no note, mortgage or other consideration or evidence of indebtedness has been or will be received from the debtor, incident to such acceptance or payment as hereinbefore provided, if made, other than the consideration paid by The Federal Land Bank and/or the Land Bank Commissioner; that no present agreement between the creditor and the applicant, or any other person, for the giving of any such note, mortgage or other consideration or evidence of indebtedness exists; that when said consideration is paid, all claims of this creditor against the above named debtor will have been satisfied in full and that no person, firm or corporation, other than the undersigned, is the owner of any interest in said indebtedness.” (Italics ours.)
The instrument contained further statements pertaining to the closing up of the loan and the surrender and cancellation of the instruments evidencing the indebtedness of plaintiff to the bank. This instrument was consented to in writing by the plaintiff.
The plaintiff and her husband executed the mortgage to the Federal Land Bank and the loan was closed in accordance with the instrument previously quoted from. The Federal Land Bank was given no information with respect to the contract of November 19 between plaintiff and her husband and the bank. In closing the loan the bank did not send to the Federal Land Bank the HOO-note claimed to be owned individually by Elliott and which was secured by the bank’s second mortgage. The Federal Land Bank wrote and inquired about that and the bank reported that the note had been delivered to plaintiff. In fact, the bank or Elliott had induced or required plaintiff to give it a new note for $115 for the one delivered to her, and this fact was concealed from the Federal Land Bank.
Plaintiff continued to reside upon the land, collected the income and profits therefrom, made payments due to the Federal Land Bank on its mortgage, and payment of taxes for the first half of 1936 and prior years. By April, 1938, payments were delinquent upon the mortgage to the Federal Land Bank and through C. C. Wilson, secretary and treasurer of the Meade County Farm Loan Association, the Federal Land Bank was demanding payment. Its mortgage was subject to foreclosure. A few days prior to April 29, 1938, Mr. Elliott, on behalf of the bank, requested plaintiff to execute a deed in compliance with the contract between plaintiff and her husband and the bank of November 19, 1934, on the bank giving to plaintiff an exclusive'option to purchase the property within a stated time. Plaintiff talked about the matter with Mr. Wilson, who rewrote the option and plaintiff and her husband did execute a deed to the bank for the stated consideration of $1,980, and received from the bank an exclusive option to purchase the property on or before August 1, 1940, by the payment of $2,085 with interest at six percent from date. The consideration named in the deed, computed and inserted by the bank, was the $1,650.50 mentioned in the contract of November 19, 1934, with six percent interest thereon from' that date to the execution of the deed. The additional amount making up the $2,085 mentioned in the contract represents the amount computed to be due on the $100 note originally owed to W. P. Elliott. This action was to set aside the deed last mentioned.
Among other things the trial court found that plaintiff received no consideration for the deed or for the contract of November 19, 1934, other than the cancellation of the indebtedness on the second mortgage to the bank above the $500 which the bank received from the proceeds of the loan made by the Federal Land Bank.
The court’s conclusions of law were:
“(1) The Contract of November 19th, 1934, was without consideration and against public policy and is therefore void. (2) There was no consideration for the deed executed April 29th, 1938. (3) Judgment should be for the plaintiff canceling and setting aside said deed.”
While several sections of the federal statute have some application to the question before us, perhaps the most pertinent is 12 U. S. C. A. § 1016(d), which reads:
“No loan shall be made under this section unless the holder of any prior mortgage or instrument of indebtedness secured by such farm property arranges to the satisfaction of the Land Bank Commissioner to limit his right to proceed against the farmer and such farm property for default in payment of principal.”
We had a similar question before us in Cook v. Donner, 145 Kan. 674, 66 P. 2d 587. There a loan had been made under the Home Owners' Loan Act of 1933 (12 U. S. C. A. § 1461 et seq.), which contained similar provisions to the act under consideration here. There, in order to have the loan made and receive a part of the money, a creditor made representations similar to those made by the bank in this case, but thereafter took a note and mortgage upon the property from the debtor to secure the part of his debt which had not been paid when the federal loan was made. The court held:
“Where a mortgagee at the same time or after he executes to the Home Owners’ Loan Corporation a release of all his claims against his debtor, and receives a less amount in bonds from the corporation making the loan to the debtor, agrees secretly or otherwise with the debtor that the debtor will give him a note and second mortgage on the property to cover the loss he has sustained in making the release, such agreement is in violation of the spirit of the act and rules under which the release was made, it denotes bad faith, is against public policy, and the note and mortgage so given are null and void.” (Syl. 112.)
This case has been followed and a similar holding made in the following cases: McAllister v. Drapeau, 14 Cal. 2d 102, 92 P. 2d 911, 916; Morrison v. Landers, 56 Cal. App. 607, 133 P. 2d 34, 38; Meek v. Wilson, 283 Mich. 679, 278 N. W. 731, 735; Markowitz v. Berg, 125 N. J. Eq. 56, 4 A. 2d 410, 412; Dayton Mtg. & Invest. Co. v. Theis, 62 Oh. App. 169, 23 N. E. 2d 511, 513, 514; Local Federal Savings & Loan Ass’n v. Harris, 188 Okla. 214, 107 P. 2d 1012, 1013; Anderson v. Horst, et ux., Appellants, 132 Pa. Super. 140, 200 A. 721, 723; Home Owners’ Loan Corporation v. Aiello, et al., 62 R. I. 353, 5 A. 2d 649, 650. See, also, 17 C. J. S. 668.
Other cases to the same effect are: Anderson v. Nelson, 110 Colo. 374, 134 P. 2d 1053; Bilgore, et al., v. Gunn, et ux., 150 Fla. 799, 9 So. 2d 184; Robinson v. Reynolds, 194 Ga. 324, 21 S. E. 2d 214; 68 Ga. App. 66, 22 S. E. 2d 179; Kniefel v. Kellex, 207 Minn. 109, 290 N. W. 2d 218; May v. Whitbeck, 111 Mont. 568, 113 P. 2d 332; Local Federal Sav. & Loan Ass’n v. Sheets (Okla.), 130 P. 2d 825; Oregon & Western Col. Co. v. Johnson, 164 Ore. 517, 102 P. 2d 928; McCrory v. Smeltzer, 132 Tex. 383, 124 S. W. 2d 336; Ellwood v. Lancaster (Tex. Cir. App.), 157 S. W. 2d 973.
Many other cases to the same effect are referred to' in the cases cited. In Smith v. Redwine (Tenn.), 168 S. W. 2d 185, and in Walker v. Oakley, 347 Pa. 405, 32 A. 2d 563, where the creditor took from the debtor a second mortgage for the amount unpaid by the Federal loan, but where the same was known to and approved by the loaning agency, the obligations were enforced, but in each of those cases it was held that the secret liens, second to the mortgage lien of the lending agency, were void and unenforceable. Arkansas (McMillan, Administrator, v. Palmer, 198 Ark. 805, 131 S. W. 2d 943), and Nebraska (Krause v. Swanson, 141 Neb. 256, 3 N. W. 2d 407) appear to be the only jurisdictions not in accord with the authorities hereinbefore cited.
Appellant concedes that if it had taken a mortgage from plaintiff upon the property to secure the balance of its second mortgage not paid by the Federal Land Bank loan the judgment of the court below would have been proper. We think, however, that what was done is governed by the same principle. In drafting the deed the bank made the consideration the unpaid portion of the second mortgage with interest, and the statement of the sum to be paid under the option was computed on an interest bearing basis. Plaintiff remained on the property for more than three years, received such income as there was from it and made payments on the Federal Land Bank loan and on taxes. Still under the plan of instruments drawn by the bank which she executed, she could have paid the bank the amount of the bank’s second mortgage, less what it received from the Federal Land Bank loan with interest thereon, and had her property free from any claim of the bank. The bank could not do indirectly what it could not do directly. Upon the facts the' case is much like that of Geel v. Valiquett, 292 Mich. 1, 289 N. W. 306, where a broker, under slightly different circumstances, secured a deed which he was endeavoring to hold for the payment of the balance claimed to be due. The deed arid the contract were declared void. Moreover, the statement executed by defendant to the Federal Land Bank under date of January 11, 1935, and upon which the Federal Land Bank loan was closed, was sweeping in its terms and included the statement: “that when said consideration is paid, all claims of this creditor against the above named debtor will have been satisfied in full.” When the Federal Land Bank mortgage was closed, and the bank had received the amount it had agreed to accept, it had no right to proceed further against either the plaintiff or the farm, property (12 U. S. C. A., § 1016 [d]). To attempt to do so was against its own representations and agreement, and against the public policy embodied in the statute. There was no consideration for the deed.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was a proceeding in probate court instituted by the state department' of social welfare for money alleged to be due the state from the estate of the father of an insane person for the maintenance of the insane person in the state hospital for the insane. On appeal to the district court judgment was given the board for a smaller amount than that for which it had asked. The board has appealed.
The insane person was admitted to the hospital September 23, 1934, as a private patient. John Colclazier was his father. A few days prior to June 9,1942, John died. At that time the son was still living and confined to the state hospital and had been from the time he was first admitted. On June 9, 1942, the state board of social welfare filed a written demand on the administrator of John’s estate for compensation for 379% weeks at five dollars a week for the care and maintenance of the insane person. This claim amounted to $1,897.84. On June 13, 1942, the state department of social welfare filed this claim against the estate. In it the board alleged the facts about the commitment of the son to the hospital and his confinement there; that John was his father and that the father was liable to the board in the amount of $1,897.84 and that this was a legal charge against his estate in accordance with G. S. 1939 Supp. 59-2006, as amended. A'copy of the claim was attached to the petition. It was duly filed and set down for hearing on July 11, 1942. On July 9, 1942, counsel for the administrator of the estate filed an answer to the claim. In this answer the administrator alleged first a general denial. He alleged further that, until June 9, no demand had been made upon the deceased during his lifetime or upon any other person who was bound to support the patient. The answer further alleged that the claim was barred by the statute of limitations for the period of time-prior to one year immediately preceding June 9,1942. The probate court heard the claim and allowed it in the amount of $135 or for a period of twenty-seven weeks. In due time the board appealed from that order. On appeal the district court allowed, the claim in the sum of $260 and disallowed the balance. The court found that a written demand for the full amount was made on June 9,1942; that the insane person was admitted to the state hospital on September 23, 1934, as a private patient; that deceased was the father of the insane person; that the claim of the board should be allowed in the sum of $260. Judgment was given for that amount. A motion for a new trial was filed and overruled and hence this appeal.
The statute mentioned in the claim filed by the board appears in the 1941 Supplement (G. S. 1941 Supp. 59-2006). It reads as follows:
“The following shall be bound by law to support persons committed to or received as patients at the state hospitals, as that term is defined in subsection 3 of section 59-2001 of theGeneral Statutes Supplement of 1939: Spouses, parents and children. The maintenance, care, and treatment of such person shall be paid by the guardian of his estate, or by any person bound by law to support him, or by the county. In case of payment by the county it may recover the amount paid by it from the estate of such person or from any person bound by law to support such person. The state may recover the sum of five dollars per week, to be applied on the maintenance, care, and treatment of a patient in a state hospital, from the estate of such person, or from any person bound by law to support such person. The state shall annually make written demand upon the spouse, parents, or children liable for the support of the patient for the amount claimed by the state to be due for the preceding year, and no action shall be commenced by the state against such spouse, parents or children .for the recovery thereof unless such action is commenced within three years after the date of such written demand.”
The trial court took the position that under the provisions of that statute it was the duty of the board to make an annual demand upon any one it sought to hold secondarily liable for the maintenance of an insane person; that this liability accrued at the end of each year and that such demand could Be for the maintenance of the patient for a year or 52 weeks only.
The board argues that the limitation provided by the provisions of G. S. 1941 Supp. 59-2006, whereby an annual demand must be made upon one whom the state seeks to hold secondarily liable.for the cost and maintenance of an insane person, does not apply to a situation such as this where the attempt to enforce the liability is by means of a proceeding in probate court rather than an action in district court, that is, the board draws a distinction between the situation where an action is brought in the district court against a spouse, parent or child of an insane person to enforce the liability and one such as we have here where the attempt to enforce the liability is by means of a proceeding in probate court pursuant to the provisions of G. S. 1941 Supp. 59-2201 to 59-2213 and 59-2236 to 59-2239. It should be noted that the latter sections are the ones which provide for the exhibiting and allowance of demands against an estate and that all demands, including demands of the state, against a decedent’s estate, not exhibited, as required by the act within nine months after the date of the first published notice shall be forever barred.
This argument takes us to an examination of the statute for the enforcement of this liability as it existed prior to the enactment of the section upon which the board bases its action, that is, G. S. 1941 Supp. 59-2006. That statute was G. S. 1935, 39-232 and 39-233. It was first enacted at the session of 1907 (Laws 1907, ch. 247, §§ 32, 33.) It provided that where a county paid for the support and care of a person who had been adjudged insane the amount might be recovered by the county from the estate of the insane person or from any person who was bound by law to provide for the insane person. It also provided that the state might recover the per capita' cost of the maintenance and care of an insane person in a state hospital from the estate of such person or from any person who was bound by law to provide for and support the person. Section 33 of that act provided that- the persons referred to should be the husband for the wife and the wife for the husband, the parents for the children and the children for their parents. It should be noted there was no provision in this section limiting the time within which the demand must be made, to recover the cost on the part of the state and the section did not state that the recovery could be had from the estate of one’ who was liable secondarily. This section was amended in 1927 by section 1 of chapter 229. This section provided that the state could recover five dollars per week unless the estate was needed for the support in whole or in part of the husband, wife, parents, children, grandparents, brothers or sisters of the insane person. It provided also that the amount of this expense should be a charge against the estate of the insane person both during his lifetime and after his death and that the amount should be collected quarterly by the state and should be at a rate not to exceed five dollars per week to be set by the board of administration. The section also provided that the board of administration was authorized to bring suit against the estate of any person failing to make the payment as required by the act and if judgment was obtained it should constitute a lien against the estate of such person. This act was again amended by section 1 of chapter 189 of the Laws of 1935, the amendment being that in a case where the board of administration failed to institute proceedings against the estate of an incompetent person within a year after his death his real estate should be free from any lien or .claim of the state for his support.
We have then the situation that prior to the enactment of G. S. 1939 Supp. 59-2006, which is now the same section of G. S. 1941 Supplement, the provision that where a person had been committed to a state hospital for the insane the state could recover five dollars a week to pay the cost of the maintenance of the insane person, first from the estate of the insane person himself, and second, from any person who by law was bound to provide for the support of such person unless the estate was needed for the support of certain relatives and that the expenses incurred by the state for the treatment of the insane person should be charged against his estate both during his lifetime and after his death; that the amount should be collected quarterly by the state board of administration at the rate of not to exceed five dollars per week and that the state board of administration was authorized to bring suit against the estate of the insane person pr against any person secondarily liable; that there was limitation as to the time within which such an action must be brought against those secondarily liable and that in order for the judgment to constitute a lien against the estate of the insane person the action must have been brought within a year after the date of his death. (See G. S. 1935, 39-232.)
At the session for 1939, chapter 180 of the Laws of 1939, known as the Probate Code, was enacted. It was a comprehensive chapter intended to cover all matters that come before the probate courts of the state. Amongst other things it did was to repeal article 2 of chapter 39 of the General Statutes of 1935. This repealed G. S. 1935, 39-232, which covered all the sections and enactments we have just been discussing.
Section 170 of chapter 180 of the Laws of 1939 is G. S. 1941 Supp. 59-2006. That is the only section which provides for the state recovering from a spouse, child or parent for the cost and maintenance of an insane person. The same provision that repealed the sections to which reference has just been made also repealed the provision providing for the state bringing an action. Thus we have the entire subject covered by the section upon which this demand was based, that is, G. S. 1941 Supp. 59-2006.
This all brings.us to a consideration of the provisions of G. S. 1941 Supp. 59-2006. The first sentence of that section provides that spouses, parents and children shall be bound by law to support patients at state hospitals. The next sentence provides that such maintenance shall be paid by the guardian of the estate of the insane person or by any person bound by law to support the insane person, that is, the spouse, parents or children or by the county. The next sentence has to do with cases where the county has paid the state for the maintenance of an insane person. We are not concerned with that here. The next sentence provides that the state may recover the sum of five dollars per week to be applied on the cost of the maintenance of a patient in a state hospital from the estate of such person or from any person bound by law to support such person. As that sentence reads it is clearly a proviso that the state may recover the amount provided by any legal method. It should be noted that the statute does not so far contain the provision which we found in the General Statutes of 1935 that the state board of administration was authorized to bring suit. The next proviso of that section is as follows:
“The state shall annually make written demand upon the spouse, parents, or children liable for the support of the patient for the amount claimed by the state to be due for the preceding year. . .
It should be noted that where the old section had provided that the state should collect the reimbursements quarterly the present section provides implicitly that a demand shall be made in writing annually upon those which the state seeks to hold secondarily liable and the amount claimed must be due for the preceding year, that is, for the year just before the demand was made. There is a comma in the section and then the following proviso:
“. . . and no action shall be commenced by the state against such spouse, parents or children for the recovery thereof unless such action is commenced within-three years after the date of such written demand.”
The section must be construed as a whole since it is the only enactment providing for the collection of any money from anybody to pay the cost of maintenance of an insane person and the means by which it shall be collected. When we do this we are led to the conclusion that the cause of action accrued only when the annual written demand for which the section provided had been made, and that the words “No action shall be brought” mean no action or proceeding shall be commenced by the state unless commenced within three years of the time when each annual demand was made. Since the accrual of the cost of action for the benefit of the state depends upon the written demand being made, and since this section is the only section which provides for any payment at all, it would not do to say that this section did not apply where the effort to collect from the person sought to be held secondarily liable was made after that person’s death from his estate rather than by means of an action under the civil code while he was living.
The board next argues that in case this court should' hold the limitation provided in G. S. 1941 Supp. 59-2006 applies to the filing of a claim against the estate of a deceased relative bound to support the patient, still the demand which was made on June 9 for the $5 a week for the entire number of weeks that the patient-had been confined was sufficient to comply with the act so that the action could be brought or demand made to collect this for the entire number of weeks rather than for a year only. An examination of the statute is the best answer to this. The statute provides that a claim shall be filed for the amount claimed to be due for the preceding year. If the legislature had intended that the claim should be made for the amount due or for any number of weeks greater than the year then it would have used the language “for the amount due.” However, it did not do that. It used the language “for the amount due for the preceding year.” This leads us to the conclusion that the claim against the estate of John Colclazier in this case was good for only one year or 52 weeks, which the trial court allowed.
The board next argues that the court should have found that the demand had been made for the maintenance of the insane person in this case before the death of John Colclazier. There is some evidence of a demand having been made but it was a demand against John Colclazier as the guardian of the estate of the insane person, not John Colclazier because he was secondarily liable. That would not meet the situation provided for in this statute. During the time that John Colclazier was alive demand could have been made against him personally because he was secondarily liable or against the estate of the patient. This was not a demand against Colclazier individually.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action in ejectment. Judgment was for the plaintiff. Defendants appeal. The plaintiff filed a short petition alleging that he was the legal owner and entitled to the immediate possession of the tract of farm land in question; that the defendants unlawfully kept him out of possession. His prayer was that they be ejected.
The amended answer of the defendants alleged in substance that they had owned the property and had been in possession of it for many years; that a mortgage which they had given on it had been foreclosed and the mortgagee had purchased the land at a sheriff’s sale for $14,136.11 and the certificate of purchase had been issued to him; that on the third day of November, 1936, the plaintiff and defendants entered into an agreement, by the terms of which defendants agreed to convey all of their interest in the real estate to plaintiff by warranty deed; that it was further agreed that the land should be redeemed from the sheriff’s sale by paying the bank the sum of $11,700, the plaintiff to furnish the sum of $9,000 and the balance of $2,700 to be furnished by the defendants and that the certificate of purchase should be assigned to plaintiff so.he could obtain a full and complete title to the real estate after the period of redemption had expired. The answer also alleged that the defend ants should have the right to purchase the land back from plaintiff by paying the sum of $11,700 in installments as follows: $540 on November 1,1937; $540 on November 1, 1938; $540 on November 1, 1939; $540 on November 1, 1940 and $9,540 on November 1, 1941, without interest if paid when due, and that the defendants agreed to pay the taxes. The answer also alleged that the agreement provided that upon the completion of the payments the plaintiff was to convey the land to defendants by a good and sufficient deed, together with an abstract of title showing a title clear of all encumbrances by, through or under plaintiff; that this deed and copy of the agreement was to be placed in escrow; that it was agreed that defendants should keep the buildings on the real estate insured; that they should have possession of it and farm it and receive all crops raised on it during the period in which no default was made; that if default should be made by the defendants there should be no liability attached to them. The answer further alleged the contract provided that should the defendants make default in the payments or fail to perform any of the covenants of the agreement it should terminate and the bank should deliver the deed to the plaintiff and the defendants should surrender full possession of the real estate to the plaintiff; that this agreement was reduced to writing and signed by plaintiff and a copy of it was attached to the answer. The answer further alleged that the certificate of purchase was obtained and assigned to the plaintiff; that the warranty deed was executed and delivered by the defendants to the plaintiff with the intention that the plaintiff should have a full and complete title to the real estate so that he could give a good and sufficient deed and title to the real estate upon payment by defendants of the stipulated price. The answer further alleged that defendants had performed all of the covenants in the agreement except the last payment of $9,540 but that the plaintiff had failed and refused to accept that payment although defendants were willing, ready and able to make it prior to the first day of November, 1941, and that defendants were still willing, ready and able to make this payment. The answer further alleged that after the period of redemption had expired on the eighth day of February, 1938, and before the first day of November, 1941, the date of the expiration of the agreement, plaintiff failed, neglected and refused to obtain a sheriff’s deed to the real estate; that the plaintiff has failed and refused to execute and deliver to defendants a good and sufficient deed to it, together with an abstract of title, showing a good title in him, notwithstanding the fact that defendants prior to the first of November, 1941, had offered on several occasions to pay him the last payment of $9,540 and had at all times since the fifteenth day of October, 1941, been ready, willing and able to pay said sum as soon as said plaintiff would perfect his title; that defendants have demanded of plaintiff prior to the first day of November, 1941, that he procure a sheriff’s deed to the real estate under the certificate of purchase, place it of record and have it' shown on the abstract, but that plaintiff had refused to do so. The answer further alleged that while the amount necessary to redeem the real estate from the sheriff’s sale was $14,136.11 the defendants obtained the certificate of purchase at a reduced price of $11,700 and that of this purchase price the defendants were to pay the sum of $2,700 but as a matter of fact the plaintiff paid only $8,859.70 while defendants paid $2,840.30; that the certificate of purchase and the warranty deed were made and given to plaintiff to secure the payment of the sum of $8,859.70; that they were in fact and truth an equitable mortgage and created a lien on this real estate to secure the payment of said sum. The answer further alleged that the $540 payable each year for the years 1937,1938, 1939 and 1940 were interest payments based on the $9,000 at the rate of six percent per annum; that the defendants had paid the sum of $2,840.30 of the principal and the several payments of interest and that they were now indebted to plaintiff in the sum of $8,859.70 with interest thereon at the rate of six percent per annum from November 1, 1941. The prayer of the answer was for a specific performance of the contract; that the plaintiff be required to perfect his title and have the same shown on the abstract and execute and deliver to the defendants a good and sufficient warranty deed, upon the payment by defendants to plaintiff of the sum of $8,859.70; that if the court should find that this certificate of purchase and warranty deed were in fact a mortgage given to secure the payment of the sum of $8,859.70 and to create a lien on the real estate, defendants asked that the lien be foreclosed as provided by law and for such other relief as defendants might be entitled to.
The reply of the plaintiff to that amended answer was first a general denial except as to the execution of the contract; second, that the plaintiff had complied with all the terms of the contract; that the defendant had neglected to pay the taxes on the real estate for the years 1939, 1940 and failed to pay the $9,540, which according to the contract was to have been paid, by the defendants, if they exercised their option according to the terms of the contract, whereupon the deed and other documents held in escrow were delivered to plaintiff in accordance with its terms. The reply further alleged that on the eleventh day of December, 1941, plaintiff served written notice on defendants that the option had not been complied with on the part of defendants and that the contract was forfeited and plaintiff demanded possession of the real estate, which defendants refused.
On motion of the plaintiff a receiver was appointed to take charge of this real estate.
When the case was tried on the merits the court held first that the burden of proof was on the defendants. The court then heard the evidence of the parties and found that plaintiff was the absolute owner and entitled to immediate possession of the real estate and ordered possession to be delivered to the plaintiff. At a subsequent time the report of the receiver was approved. From the final judgment in the action and the order overruling their motion for a new trial the defendants have appealed.
The appellee filed a motion to dismiss the appeal. The ground of this motion was that when the trial court appointed the receiver to take charge of the real estate the receiver made arrangements with the defendants to continue to farm the land. The defendants remained in possession and farmed the land pursuant to this contract between them and the receiver. When judgment was entered for the plaintiff the receiver made his report which the trial court approved. This report was to the effect that there was money due the defendants as a result of their having complied with this contract. They were paid this money and accepted it. The plaintiff argued that by accepting this money they acquiesced in the judgment and cannot now attack it. This point is not good. The defendants did not receive this money as a result of the judgment. They received it as a result of the contract with the receiver. Hence, the cases cited by the plaintiff are not in point.
At the trial the defendants first offered in evidence the files of the action wherein the foreclosure was had which resulted in the issuing of the certificate of purchase to which reference was made in the contract that had been attached to the answer. The objection of the plaintiff to this evidence was sustained. Its exclusion is urged as error by the defendants on this appeal. During the colloquy between court and counsel when this evidence was being tendered the trial court said:
“The theory I take of it is this: The parties by their pleadings and the opening statements, have shown that the parties made a contract between fthem] with respect to this land. As I get your opening statements, the only issue between the parties here is whether or not Carroll prevented the Naffzigers from redeeming the land or carrying out the terms of the contract.”
If this statement was correct then the court committed no error in excluding this evidence. If, on the other hand, the issues were properly as broad as contended for by the defendants then the evidence should have been admitted.
This takes us to an examination of the pleadings. It will be noted that the petition was simply a statement that the plaintiff was the legal owner of the real estate in question, was entitled to the possession of it, and defendants were unlawfully keeping plaintiff out of possession. On the face of the record the first of these allegations was true. The title to the real estate did stand in the name of the plaintiff. The statement that plaintiff was entitled to possession of the real estate, however, was more a conclusion of law than a statement of fact. As á matter of fact that is what the action was brought to determine.
The amended answer pleaded a situation such as has received the attention of this court many times where one usually termed a grantor has conveyed real estate to a grantee under such circumstances that this court has said that equitable principles would be applied and the conveyance, although absolute in form, be held to be a mortgage rather than an absolute conveyance. In such cases this court has held many times that evidence as to all the surrounding facts and circumstances leading up to the making of the written contract and the giving of the conveyance should be considered in order that the court might be informed as to the actual payments that had been made by the party claiming the equitable interest, whether the transaction was one which created a debt and in short whether the entire course of dealing was such as to require a court applying equitable principles to hold that the conveyance, while being absolute on its face, was other than what it appeared. See Republic Mutual Fire Ins. Co. v. Johnson, 128 Kan. 323, 278 Pac. 48, and cases there cited, also Hegwood v. Leeper, 100 Kan. 379, 164 Pac. 173.
Following this theory the answer alleged the facts as they have already been detailed in this opinion. The reply, as has been noted, alleged first a denial of all these facts except the making of the written contract. It then alleged facts which plaintiff claimed en titled him to forfeit the contract. It is true that defendants asked in their prayer that they have specific performance of the contract on payment by them of the balance of the purchase price and that they then asked if the trial court should hold that the certificate of purchase and warranty deed were in fact a mortgage, then that the lien be foreclosed as provided by law. No motion to require the defendant to elect or to make the answer more definite and certain was filed. If one had been filed, there was no inconsistency. As to the first part of the prayer, the answer alleged that defendants were endeavoring to comply with the terms of the contract when plaintiff demanded possession. This raised the question of whether the demand was premature or, stated in another way, whether equity required that defendants have additional tithe in which to comply with the terms of the contract. Should it be held that equity did not require this, still should it be held that the conveyance and certificate of purchase construed together were actually an equitable mortgage, then equity would require a holding that the remedy of plaintiff was to foreclose the mortgage so that the defendants would have a right of redemption. In either event the plaintiff would not be entitled to immediate possession as prayed for in the petition.
The evidence offered by defendants and excluded by the trial court was to the effect that they had owned and lived on the land in question; that a mortgage on it had been foreclosed and that the land was bid in for $14,136.11 by the mortgagee; that they were successful in persuading the mortgagee to accept $11,700 for the certificate of purchase; that plaintiff and his agent inspected the place and said they would not loan over $9,000 on it; that either plaintiff or his agent stated that it was necessary that the certificate of purchase be assigned to plaintiff as well as the deed made to him so that when the land was redeemed he could deed it back to defendants ; that they did not understand at the time they signed the contract and executed the deed that they were conveying the title, but they thought they were securing the deed for the plaintiff to keep in escrow and hold as security; that defendants had already paid $2,700 of their own money toward the certificate of purchase and they would not have joined in the deed and conveyed their interest in the certificate of purchase unless the deed was to have been held as security. Thejr also offered to» prove that they borrowed some money from a bank and with this, together with money they received from the sale of wheat, they were able to raise $2,700 which they paid to the plaintiff in the mortgage foreclosure action to make up the balance over and above what they obtained from the plaintiff in this action necessary to redeem the land from the sale; that during all conversations leading up to the execution of the contract the plaintiff and his agent said that he would have to have six percent on his money and that they were given to understand that the payments of $540 per year were interest payments; that after the contract had been entered into the defendants continued in possession; kept the buildings in repair and made the interest payments of $540 each year up until November 1, 1941, and shortly prior to that date had arranged at the bank for the necessary funds to pay off the final amount due the plaintiff, including $8,000 from a loan company to be secured by a mortgage on the land. As has been noted, all this evidence was excluded by the trial court on account of the narrow view the court took of the issues.. As has already been demonstrated in this opinion, this view was too narrow and it was error to reject the proffered testimony.
This would require that the judgment of the trial court be reversed and a new trial ordered. There is a further question raised, however, by the defendants in this appeal. They argue that either on the theory that the plaintiff held an equitable mortgage or that the defendants, as grantees in the repurchase contract had paid sums entitling them to a substantial equity in the land, the court should have dealt with the situation on equitable principles by requiring proceedings in the nature of an equitable foreclosure allowing the defendants a redemption period and should not have allowed the equitable interest of the defendants to be summarily extinguished by ejectment. We have heretofore demonstrated in this opinion that should the rejected evidence have been admitted and believed by the trial court it would have required' a holding in favor of the defendants on the grounds that the entire transaction .constituted an equitable mortgage. There is a further ground, however, which requires that this judgment be reversed and judgment be ordered in favor of the defendants. That is the ground that the plaintiff acted too precipitately in demanding possession of defendants forty-one days after November 1, 1941. There is no dispute about the fact that the $540 payments were made each year until November 1, 1941, and that shortly before that date the defendants began negotiating for a loan to enable them to make the payment of $9,540 which was due November 1, 1941, and that they had made arrange ments to borrow from other sources what they would need over and above what they could borrow on the land from a loan company. It was undisputed that they had made arrangements to get the full amount necessary and that it was ready for them when some technical requirements as to the abstract were complied with. The testimony was that these negotiations were carried on and ready for completion sometime before November 1,1941. There is undisputed testimony that at a conference between plaintiff, and defendants the latter part of November, 1941, the plaintiff said that he would not answer the question as to whether he would accept the money if it were tendered to him “until the money was put down on the table.” The testimony of the plaintiff himself was that during the third week in November when he was asked whether he would accept the $9,540 he said “Well, I says you put the money on the table and I will answer your question, whether I will take it or not.” There was some testimony to the effect that the loan was not actually completed November 1, 1941, because the loan company required that the plaintiff secure a sheriff’s deed. The evidence shows that there was some talk between the parties as to whether it was necessary for the plaintiff to secure this deed and that the plaintiff, objected finally to paying the expense of securing it. There was also a question about a small judgment against the defendants but it appears that this requirement of the loan company was waived. The plaintiff’s evidence showed that on December 11,1941, the plaintiff served notice on the defendants that because they had neglected to pay the sum of $9,540, which was due November 1, 1941, and had neglected to pay taxes assessed against the real estate for the years 1939 and 1940 the plaintiff declared the option forfeited and demanded the possession of the real estate.
The plaintiff in his reply stated that the taxes for the years 1939 and 1940 were not paid by defendants. This failure constituted a failure to perform one of the provisions of the written agreement, that is, to pay the taxes each year and was ground for forfeiture and termination of the contract. Subsequent to this failure to pay the taxes for 1939 plaintiff accepted one payment of $540 on November 1, 1940.
This contract provided that time was of its essence. The privilege to declare forfeiture was waived by accepting this payment of $540 long after there had been default as to one of the conditions of the contract. In Luther v. Hekking, 110 Kan. 478, 204 Pac. 523, in considering an analogous situation we have said:
“This acceptance did not, ipso facto, effect permanent waiver of the forfeiture privilege, but it placed the parties in such a situation that forfeiture could not be declared without previous notice that the privilege would be insisted on. What the vendors should have done on May 12 was to serve on the vendees notice that, unless defaults were made good within a stated reasonable time, the contract would be declared forfeited. This is the doctrine fairly indicated by the decision in the case of Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923, on which the vendors rely, and is the true doctrine.”
See, also, 66 C. J. 767, § 356.
The holding of this court in Holman v. Joslin, 110 Kan. 674, 204 Pac. 697, is in harmony with the above rule. Also, see Home Owners’ Loan Corp. v. Jaremko, 146 Kan. 328, 69 P. 2d 1096. In that case even though we held that the contract was actually a contract for the sale of real estate and would be construed as an equitable mortgage, we said:
“Should the argument of plaintiff be followed, then no matter how long the buyer or optionee should remain in possession and make the payments as required and comply with the other requirements of the contract, the minute he failed to comply with them he could be let out, his rights in the property being forfeited.
“This practice has never had the approval of this court, nor does G. S. 1935, 67-251, contemplate that there could be such a result. Where the enforcement of the forfeiture provisions of a contract for the sale of land would be inequitable the forfeiture will not be decreed. (See National Land Co. v. Perry, 23 Kan. 140; Lumber Co. v. Horrigan, 36 Kan. 387, 13 Pac. 564; Geffert v. Geffert, 98 Kan. 57, 157 Pac. 384, and Holman v. Joslin, 110 Kan. 679, 205 Pac. 629.) This is true even where time is made the essence of the contract as was the case here.”
Upon the undisputed facts that the defendants here had remained in possession of the land; had met the annual payments on four different occasions and were in the process of completing a loan to enable them to comply with its provisions at the time notice demanding possession was served upon them, we hold that this was the sort of a contract wherein equity will deny the plaintiff the drastic remedy of forfeiture and right of immediate possession without giving the defendants a reasonable time in which to comply. This holding requires that the judgment be reversed with directions to render judgment for, the defendants.
The defendants argue further that the court erred in not finding that the plaintiff had prevented them from complying with the contract and in holding that the burden of proof was on them. On account of the conclusion we have reached as to other questions it will not be necessary to decide those interesting questions.
The judgment of the trial court is reversed with directions to enter judgment for the defendants.
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OPINION ON REHEARING
The opinion of the court was delivered by
Dawson, C. J.:
For reasons which appeared sufficient to the court, appellant’s motion for a rehearing was granted. The cause was again briefed and argued at length, and upon further exhaustive consideration our first judgment of affirmance announced in 156 Kan. 230, 132 P. 2d 624, is adhered to.
Included in the motion for a rehearing was a request that in the event of a reaffirmance we should interpret the trial court’s finding of fact and conclusion of law which pertain to an offer of defendant Beachy to erect a trust fund for the benefit of the minor heirs of Lichty out of a proportionate increase of the assets of the Snyder Ice Cream Company accruing to the 135 shares of stock acquired by him, which was the crucial issue in this litigation. But this matter is still pending in the district court; nobody is complaining about it; and clearly it is not now open to appellate review. (Wideman v. Faivre, 100 Kan. 102, 108, 163 Pac. 619.)
The judgment is reaffirmed.
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The opinion of the court was delivered by
Hoch, J.:
From a judgment approving an award under the workmen’s compensation law the respondent appeals. The only question presented is whether the appellee was an employee of the appellant and working in the course of such employment when the injury occurred. *
Our jurisdiction under the workmen’s compensation statutes (G. S. 1935, ch. 44, art. 5) is specifically limited to “questions of law.” (See proviso in G. S. 1935, 44-556.) Not being triers of fact as is the district court, we do not weigh conflicting evidence. (Cook v. Dobson Sheet Metal Works et al., ante, p. 576, 142 P. 2d 709; McMillan v. Kansas Power & Light Co., ante, p. 385, 139 P. 2d, 854, and cases therein cited.) We consider the evidence only for the purpose of determining whether, as a matter of law (Cook v. Dobson, supra, and cases there cited), there was any substantial evidence to support the judgment. It is elementary that upon such review the appellee is entitled to all reasonable inferences which may be drawn from the evidence in his favor.
The McJunkin Flying Service, Inc., operates in Wichita, Kan., a school for the training of fliers. Carl Milton Goss was riding in one of their planes on September 15, 1942, when the plane crashed and he was seriously injured. Goss filed application for compensation under the workmen’s compensation law and on January 6, 1943, the commissioner made an award in his favor in the total sum of $1,008, covering 56 compensable weeks at $18 per week. The claimant was also awarded $654.35 for hospital, medical and nursing bills and administration fees. On appeal to the district court the award was approved and judgment entered on June 15, 1943. Neither the nature and extent of appellee’s injuries nor the amount of the award are at issue and need not be discussed.
Having reviewed the record in the light of appellant’s contention that there was no substantial evidence to support the judgment we summarize only the evidence upon which appellee relies.
Appellee had been a resident of Missouri for a number of years and prior to September 15, 1942, was employed as an aircraft flight instructor by the Ong Aircraft Corporation in Kansas City, Mo. He went to the C. P. T. office in Kansas City (said to be a division of the Civil Aeronautics Authority) and told them he was planning to leave the service of the Ong school, that he had an “instrument rating” and wanted to get a new position. Several schools were suggested where he might get employment as an instrument instructor. He went back to the airport and in about an hour thereafter had a long-distance call from the McJunkin Flying Service of Wichita. Meredith Jocelyn, one of the operators of the Mc-Junkin Flying Service, talked to him and asked him if he was interested in an instrument instructing job and said, “How about-coming down and going to work?” He told Jocelyn that he had an instrument rating and was qualified to teach it, and liked Wichita all right, and they discussed salary. Jocelyn named a price and Goss named his and they split the difference, agreeing on $325 a month. Goss testified that this salary “was to start the day I arrived at the airport in Wichita at the school.” Jocelyn told him that they had a course starting September 15 and Goss told him that he had several students and wanted to finish the work with them, but that he would get to Wichita as soon as possible. He called Jocelyn on the ’phone several days prior to the 15th and told him he was ready to come and asked if they still wanted him. He replied that they did, that they were expecting him, that the job was still there and for him to come on. He told Jocelyn that he would be there on Sunday or Monday. He arrived in Wichita about 4:30 p. m. on Sunday afternoon, September 13; reported to the airport on Monday morning, September 14, and talked to Vale Jackson, secretary to Mr. Theis and Mr. Jocelyn, operators of the school, who told him that they were out of town and would not be back until the following day. She said that their students were not expected until the 15th and had not arrived and they were “expecting a Link trainer” which was late in arriving and that in the meantime there was not a great deal for him to be doing. It should be noted that there was no showing that Miss Jackson had any authority to hire employees or to direct the work of employees. Both Theis and Jocelyn testified that she had no such authority. She was, however, the only one in the office and no objection was made to testimony concerning the conversation which was had with her. Appellee told her that he had considerable work to do on the “radio range” getting ready for the instrument course, and if there was any other instructing he would be glad to do it and for her to feel free to call on him. She said there might be other instructing to do and other “flight primary, and outside flight, until the instrument program got started.” Concerning the nature of the work on the “range,” appellee testified as follows:
“Instrument flying is different from just straight flying, and in flying instruments a radio range is used. In order to make it easy for the students and easy to teach, it is a good idea to have a pattern of those ranges drawn up. When we teach instruments it is customary to make copies of the range so that the students can see where they are. In other words we made a recorded flight on that sheet and figured out the altitude to fly and such as that. There is a radio range in Wichita. In instrument flying you have to fly in different altitudes, and it is different in different airports, and due to the difference in sea level, it has to be figured out.”
Appellee remained at the airport on the 14th until early in the afternoon, when he left in order to locate a rooming place. He returned to the company’s office about 11:00 o’clock in the morning of the 15th. Much of the time while he was at the office on the 14th and 15th he was engaged in work on the radio range. On the afternoon of the 15th both Theis and Jocelyn came in, met appellee and said they were glad he was there. They said they had been out of town buying airplanes and that “the Link” was still late and they expected it in a week. One of them said that one or two of their students had arrived; that “there was some primary to teach”; that appellee wouldn’t have a. lot to do until the course started, but “to stick around.”
On direct examination Theis was asked, “He (Goss) also said that in this first conversation, one of you said something about sticking around, there would probably be some primary training to do until the Link trainer was installed?” He answered, “That is possible. All of our instructors have to do whatever work there is there to be done.” Concerning the work on the range which appellee was doing Jocelyn testified upon cross-examination as follows:
“Q. When you first met Mr. Goss personally, he was sitting in your office inside the office? A. That is correct.
“Q. I believe you stated he told you he was worldng on the radio range? A. He was working on a radio range problem.
“Q. As a part of the instruction it is necessary that the instructor understand the radio range? A. Yes, but I don’t know that it was a Wichita range on which he was working. We just noticed a sheet with’ a range drawn out on it.
“Q. He stated he was working on the range? A. I don’t recall that we had any conversation with regard to the range problem, or whether we did or not. I knew he was working on a sheet with a range drawn out on it. Whether it was discussed or not, I am not clear on it. I don’t remember.”
While appellee was working on the radio range Jim Harper, one of the company’s students, asked him if he would go up with him. Appellee said he was busy and did not have time, as he wanted to leave early. Harper, however, insisted that he go with him, saying that he had about seven or eight hours to fly before getting his instructor’s rating and he wanted appellee to go up “and check me out on some maneuvers and more or less ‘sandbag.’ ” The term “sandbagging” was explained to mean much the same as the use of ballast in a ship. Appellee told Miss Jackson that he was going up with Harper and that he would be back in about an hour, and she said, “All right.” The two “went out and took off.”
There was testimony that since the war began every civilian aircraft has to be cleared by a licensed government registrar before he can take off, and that the record of the flight plan for this flight was made out before the flight started. On this point appellee testified:
“Q. And where was that flight plan made? A. It was made at the office there, I think. At Wichita, I am not very familiar how they do. I think the control tower at the airport controls the clearance for Hart’s Flying Service and for McJunkin and other airplanes operating off the airport, you call in and give them the details of your flight.
“Q. Were there papers signed? A. Yes, sir.
“Q. Who signed them if you know? A. That I cannot say.
“A. I said a moment ago I did not sign the papers. Mr. Harper made out the clearance as pilot and on the clearance it says passenger. My name was passenger there, and the registrar had to sign the clearance before we could leave, and we had to take a copy of the clearance with us on the flight.
“Q. Where was that clearance paper made out? A. Well, as Mr. Harper made it out—
“Q. Where? In the office of the McJunkin Flying Service or somewhere else? A. I imagine it was in the office. There is Mr. Harper, he can tell you.
The Examiner: “I would like to know who the registrar is.
“Q. Do you know who the registrar is? A. That I do not know, but every approved airport must have one.”
Jocelyn testified that a Mr. Hobbs was in charge of the school while he and Mr. Theis were absent; that Hobbs was their chief instructor, was their clearance officer and responsible for the office and for the use of the planes.
Jocelyn testified that his information concerning appellee first came from John Tevis, who was in the C. A. A. office in Kansas City, and that Tevis left a note stating that Goss was an instrument instructor and was looking for a job as such. He testified that when he called appellee on the phone he told him that he understood from Tevis that he would be available as an instrument instructor; that he asked him where he had had his training and when told that it was in Denver he said that “they had a very good reputation.” He testified that they agreed on salary and that he told him that they would need him on or about the fifteenth of September and for him to come on down and they would go over his ratings.
Appellant’s principal contention is that while it had agreed to employ appellee such employment was contingent upon examination of his credentials to see that he was qualified for the particular work for which they needed an instructor, and that the law required an examination of the credentials, which they had not yet made. In support of this view appellant stresses Jocelyn’s testimony that when he and Theis met appellee in the office they asked him to wait a while, that they had some other business and “would talk to him later.” He did not testify that he told appellee what it was he wanted to talk about later, nor that he told him they would have to check his credentials. Furthermore, Jocelyn testified on cross-examination that it was no violation of the law for an instructor to make a flight before his credentials were examined, and that they make such a check to satisfy themselves and not to satisfy the C. A. A. — the federal authority having regulatory control in such matters. Also, that he learned from the C. A. A. itself that appellee was available as an instructor. In any event the trial court heard the testimony concerning the conversation in the company’s office and whatever conflict there may have been was resolved in favor of appellee.
Stressing the elementary principle of contract that there must be a meeting of the minds on all essentials appellant contends that there was no evidence upon which to base a finding that agreement had been reached and employment begun. We are unable to agree with the contention. While the evidence might have been more clear-cut — in which case this litigation probably would not have arisen — we cannot say that the trial court erred in finding that the appellee’s employment had begun. Appellant was seeking a flying instructor; from the C. A. A. it learned that appellee was available for that purpose; they had agreed upon salary which was to begin the day appellee arrived at the airport; for parts of two days appellee worked upon the radio range in appellant’s office, and was told by Jocelyn “to stick around,” with no intimation to him that they wanted to examine his credentials; there was testimony that the flight plan for this particular flight was properly cleared and at least some inference that such clearance was had through Hobbs, appellant’s officer responsible for the office and for use of the planes. The latter testimony may seem somewhat inconsistent with Harper’s testimony that few other men were using that particular plane and it wasn’t necessary to go into the office and report every flight he was going to make. However, we cannot say that there is irreconcilable conflict on the question of whether there was regular clearance for this particular flight and even if there were the trial court was trier of the fact. We cannot upset the finding that appellee’s employment had begun.
Appellant next asserts that the accident did not occur in the course of employment, but does not argue the point in its brief. We also conclude that this point is not well taken. Appellee was being employed as an instructor. Appellant does not contend that he was not properly qualified as such. It merely asserts that it does not know, not having examined his credentials. On the other hand, there was ample testimony that he had the proper rating and was qualified to instruct. However unfortunate the crash and whatever inferences anyone might possibly draw from it, the fact remains that appellee was taken up by Harper in part at least because he was qualified to instruct and to check some of the maneuvers. Assuming appellee to have been in the employ of appellant as instructor, we think it cannot be said as a matter of law that the accident did not take place in the course of employment.
Whether, upon the same record, the trial court might have found for appellant is, of course, not before us.
We find no error and the judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action for damages for the death of plaintiffs’ son, Cleo Johnson, and for the damages to their automobile, in a nighttime collision with defendant’s fast passenger train at a street crossing in Salina.
Ninth street is a much-traveled street which runs north and south through the city. The Union Pacific railroad crosses that street diagonally from northeast to southwest. Defendant’s depot is situated about four blocks west of the crossing. Five parallel tracks on defendant’s right of way cross Ninth street. About forty yards east of the crossing is the Robinson flour mill, a seven-story building. The Robinson mill is served by three of defendant’s switch tracks. Two of these branch off from the southernmost of the five parallel tracks immediately west of the crossing, one of them serving the north side of the Robinson Mill, and the other its south side. The third switch track does not cross Ninth street; its west end is a short distance east of that street; it also serves the south side of the Robinson mill.
A few feet west of Ninth street and a short distance south of the five parallel tracks is a small shelter cabin for crossing watchmen who are kept on duty by defendant in two shifts, one from 7 o’clock a. m. until 3 o’clock p. m., and the other from 3 o’clock p. m. until 11 o’clock p. m. No watchman is kept on duty in the nighttime from 11 o’clock p. m. until 7 o’clock a. m.
At various distances to the south of defendant’s series of mainline and switch tracks just described are several other series of tracks, one of which appears to be Union Pacific property; but it and the other series of tracks which lie further away need no consideration in our present study of the locus in quo.
About twenty yards east of Ninth street and about 125 yards south of the crossing is the Weber flour mill, a six-story structure. South of the Weber mill and close to the east side of -Ninth street was a series of tall elevators. There may have been other business structures thereabout, but those mentioned will show that the vicinity of the crossing on the east side of Ninth street had the usual characteristics of an industrial district — flour mills and elevators running night and day, and switch engines and .freight cars moving on the switch tracks at any time of night. The mills, elevators and the street crossing were so well lit up at night that the glare of the headlight of an approaching train was largely dissipated thereby. The height of the mills and the noise of their operation tended to deflect or overcome the whistle and sound of a bell from a train approaching from the east.
On the night of the accident, November 28, 1940, a fast passenger train from the east, due to arrive at the Salina depot at 1:10 a. m., and running twenty minutes behind time, crossed Ninth street at a speed of forty to fifty miles per hour.
At that time, plaintiffs’ nineteen-year-old son, Cleo Johnson, and two companions in plaintiff’s automobile came up Ninth street from the south, headed for their homes north of the city. The result was a collision in which plaintiffs’ son who was driving the car and one companion were killed; the third youth was injured, and plaintiffs’ automobile was wrecked.
Hence this action by the plaintiffs, for the death of their son, and damages to their automobile.
Plaintiffs’ amended petition alleged all the material facts at great length. In it was an allegation that plaintiffs’ son who met his death in the collision was familiar with the crossing and had crossed it many times, and that he relied upon a watchman to warn him of any approaching train. The allegations of defendants’ negligence were (1) operating its train at the negligent speed of fifty miles per hour over a dangerous street crossing, (2) failing to sound warnings by bell or whistle, (3) permitting freight cars to stand adjacent to the crossing so as to obstruct the view of an approaching autoist, and (4) failure to maintain a flagman at the crossing in the nighttime, without notice to the traveling public who were accustomed to the presence of a watchman to warn of approaching trains during daylight hours and until 11 o’clock at night.
Defendant answered with a general denial, and denied that it had .a custom or practice of having a watchman on duty in the nighttime. It alleged that such watchman was only maintained between the hours of 7 o’clock a. m. to 11 o’clock p. m. It also alleged that any freight cars which might have been standing on the east side of Ninth street were so far to the east that as plaintiffs’ decedent closely approached the main-line tracks there was an unobstructed view to the east, where an oncoming train could be seen.
Defendant also alleged that the death of plaintiffs’ son and the damage to their automobile were caused by the negligence of their son who drove the automobile at a high and dangerous rate of speed as he closely approached the railway track on which defendant’s passenger train was running, and—
“That such . . . death, and damage to property, were proximately caused by the negligence of the said Cleo Johnson in that he failed to keep a proper lookout when closing [closely] approaching said railroad track at a time when by the exercise of ordinary care he could have seen the approaching train and could have stopped the said automobile; that he was negligent also in failing to slow down or stop the said automobile, or to drive it slow enough so that it could be stopped before going up to railroad track upon which the train was being operated, and was further guilty of negligence proximately contributing to the damage and injury complained of, in that he drove the said automobile into and against the side of the train of this defendant, Union Pacific Railroad Company, when the train was occupying and was nearly across said Ninth street; in failing to stop, look and listen, when he saw or by the exercise of ordinary care, could have seen that he was approaching a railroad crossing over which a railroad train was being operated; and in failing to properly operate his automobile in order to avoid injury and damage to himself at said time and place.”
In their reply plaintiffs alleged that—
“If said flagman was not maintained at said crossing later than 11:00 o’clock at night that the same was unknown to the said Cleo Johnson and to the general public and that Cleo Johnson thought that the defendant maintained a fulltime flagman at said crossing and relied upon him as such as is set forth in said amended petition.”
The cause was tried to a jury. At the conclusion of plaintiffs’ evidence, defendant interposed a demurrer which was overruled. Defendant then introduced its evidence; the court instructed the jury; the cause was argued by counsel; the jury retired and deliberated but failed to reach a verdict and were discharged.
The cause is brought to this court to review the trial court’s rulings on defendant’s demurrer to the evidence on two grounds — first, that the evidence failed to show negligence on the part of the defendant, and second, that the contributory negligence of plaintiffs’ son was so clearly established as a matter of law that it was a question for the trial court to decide and not one for submission to the jury.
Counsel for neither side devote much space to the alleged negligence based on the speed of the train, the alleged failure to sound bell or whistle, nor in the matter of permitting freight cars to stand on the switch track near the east side of the crossing. No statute, state or federal, and no city ordinance was cited as governing the speed of passenger trains entering the city of Salina. The depot at which the train "was to stop was only four blocks to the -west, so the engineer’s testimony that his train crossed the Ninth street intersection at his usual speed of forty miles per hour could not be far from correct. Some of plaintiffs’ witnesses estimated the speed of the train as high as fifty miles an hour, but this matter is of no consequence, as the accident was not caused by the speed of the train. (Morris v. Railway Co., 103 Kan. 220, 225, 173 Pac. 346; 52 C. J. 276.)
One argument in support of plaintiffs’ theory that the crossing was a highly dangerous one, requiring that it should have been guarded night and day by a watchman or by some other efficient provision to insure public safety, is that owing to the noise of the mills and elevators and the height of the tall buildings thereabout, the sound of a bell or whistle could not be heard.
Touching the alleged negligence in permitting freight cars to be placed on the switch track near the east side of Ninth street, that is what switch tracks are for, and courts and juries cannot dictate to a railway company where its freight cars should be placed. (Adams v. Missouri-K.-T. Rld. Co., 119 Kan. 783, 241 Pac. 1086, and citations.) If it is to be declared unlawful to set freight cars on a switch track near a city street, legislation of some sort will have to say so; the practice cannot be otherwise forbidden or penalized.
So we come to the two outstanding questions in this lawsuit — the negligence of the railway company; and the contributory negligence of plaintiffs’ son, the youth who met his death in the collision.
Touching the first of these questions, it cannot be left out of consideration that defendant itself regarded the crossing as dangerous to some extent, since it maintained a watchman for sixteen hours of the day and night. It was not shown that the traffic between 11 o’clock at night and 7 o’clock in the morning was so much less than for the other eight hours of the night and early morn that the keeping of a watchman on duty was needless. The testimony was that the nighttime travel' on Ninth street was considerable.
Counsel for defendant argue that since no statutes or city ordinance (or state or interstate safety regulation) required it to keep a watchman at the crossing at any time, it should not be held to a higher degree of diligence for the operation of its railroad at the crossing in the nighttime on the mere ground that it did more than it was required to do for public safety at the crossing in the daytime.
The argument is plausible, but the crux of the question of de fendant’s negligence is whether the crossing was so dangerous that a duty rested on it to make some reasonably adequate provision for the public safety thereat — by maintaining a flagman, a wig-wag, a flicker, a crossing gate or other efficient device. Reasonable minds might be permitted to reach different conclusions on that question, and if so, could this court dispose of it as a matter of law?
In Cross v. Chicago, R. I. & P. Rly. Co., 120 Kan. 58, 60, 61, 242 Pac. 469, is an excerpt from the often-cited case of Grand Trunk Railway Co. v. Ives, 144 U. S. 408, where the late Mr. Justice Lamar referred to many cases analogous to the one at bar, and said;
“As a general rule, it may be said that whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous, is a question .of fact for a jury to determine, under all the circumstances of the case, and that the omission to station a flagman at a dangerous crossing may be taken into account as evidence of negligence; although in some cases it has been held that it is a question of law for the court. It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous: as, for instance, that it is in a thickly populated portion of a town or city; or, that the view of the track is obstructed either by the company itself or by other objects proper in themselves; or, that the crossing is a much travelled one and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle and confusion incident to railway or other business; or, by reason of some such like cause.” (p. 421.)
In Rose’s Notes to this case, in 36 L. Ed-. 485, at pages 1202,1203, a plethora of federal and state cases are collated which more or less closely follow it.
While recent decisions are not uniform, there is highly respectable authority which holds that a railway company is under a duty to install a signalling device or to take some other adequate measures for the safety of the traveling public at a railway crossing, although no statute or official order of some governmental agency has required it; the theory of these decisions being that statutory or governmental requirements are merely the minimum of the railway company’s duty, while the hazards of some particular crossing may require greater precautions for public safety. Such is the tenor of the instructive opinion of the Minnesota supreme court in Licha v. Northern Pacific Ry. Co., 201 Minn. 427, 276 N. W. 813. To like effect are Sisk v. Chicago, B. & Q. R. Co., (Mo. App.) 67 S. W. 2d 830; Louisiana Ry. & Nav. Co. v. Loudermilk, (Tex. Civ. App.) 295 S. W. 193; Constantine v. Pennsylvania R. Co., 114 F. 2d 271; and Duluth, W. & Pac. Ry. Co. v. Zuck, 119 F. 2d 74. In Bledsoe v. M.-K.-T. Rld. Co., 149 Kan. 741, 746, 747, 90 P. 2d 9, we took cognizance of this doctrine, but held it inapplicable to the facts of that case. See, also, Smith v. A., T. & S. F. Rly. Co., 145 Kan. 615, 66 P. 2d 562, and syl. ¶ 3.
In the present case the trial court gave a fair instruction to the jury touching the pertinent law. It reads:
“The jury is further instructed that if, under the circumstances of this case, the jury finds that the surrounding conditions and circumstances of that crossing where the collision occurred were such as made it unusually dangerous, then the jury may inquire as to whether a reasonably prudent person under such circumstances would have maintained a watchman at such crossing at the time of the collision, and in determining whether or not such crossing was unusually dangerous, you may take into consideration the obstructions, if any, to the view of the decedent when approaching the crossing, such as box cars, if any, or other objects proper in themselves, and you may consider whether or not said crossing was a much traveled one, and the noise, if any, incident to the railway or other businesses, the location of said crossing within the city, and all of the surrounding circumstances of this crossing at the time of the collision, and if you find, after due consideration of such circumstances, that such crossing was an unusually dangerous one, and if you further find that an ordinarily prudent person would have maintained a flagman at said crossing at the time of the collision then you are instructed that such failure to maintain a flagman at said crossing at the time of the collision was negligence on the part of the defendant, but such negligence, if any, would not excuse the deceased from exercising ordinary care on his part, as defined in these instructions.”
A majority of this court are inclined to hold that the heavy traffic over the Ninth street crossing, the tall buildings and .the noise of industry thereabout which deflected or muffled the sound of railway engine bell or whistle, the shortened range of vision for motorists approaching the crossing from the south, the many railway tracks thereabout, and the moving of switch engines and freight cars thereon — that these circumstances created a situation where it could not be dogmatically stated as a matter of law that the crossing was not dangerous. It was, this court holds, a fair jury question, which if thus established, would render the defendant guilty of negligence in not maintaining a flagman at the crossing at the time of the collision.
A more critical question is raised in defendant’s contention that plaintiffs’ son was guilty of contributory negligence in driving the automobile onto the railway track without taking any precautions for his own safety. Plaintiffs’ evidence showed that their son was familiar with the crossing, having driven over it many times by day and by night, and that he was accustomed to see a flagman signalling traffic of an approaching train. There -was no evidence on the point whether he knew that the defendant did not keep a flagman on duty at the crossing after 11 o’clock at night. Alfred Priddy, who rode in the car and who survived the collision, testified that he and his two companions had been to a dance that night; that following the dance they had taken two young ladies to their homes in town, and then started north on Ninth street towards their homes. His testimony continued thus:
“Cleo Johnson was driving the car. I am familiar with the intersection of Ninth and the Union Pacific tracks, and had frequently crossed that crossing as an operator of an automobile. ... At the time we approached the crossing on November 28, 1940, I would say the Johnson car was maintaining a speed of about fifteen miles an hour during the last fifty feet before you entered the tracks and up to the time of the collision. I was in the back part of the automobile. Johnson and Charles Lammon were in the front seat. From the time the Johnson car turned north on Ninth street that night until the time it got to the intersection, we never went over fifteen miles an hour, I don’t believe. The automobile was being operated on the east part of Ninth street. It was right in the center of the east path. The headlights were burning on the car. They were good headlights. The brakes on the car were in good shape. I have been over that crossing after eleven p. m. with Cleo Johnson. I never did notice a crossing watchman, a colored man or anyone else, flagging after eleven p. m. I have been with Cleo Johnson in an automobile going across that crossing at night when the crossing watchman wasn’t there after eleven p. m. The automobile was going at a speed of fifteen miles an hour as we approached the point where the accident occurred, and it continued at that speed clear up to the time of the accident without stopping at any time before the collision occurred or without slowing down. ... It was a cool evening. Moisture from our breath condensed on the inside of the glass of the car. That was not the condition of the car when we started to go across the crossing. The boys kept wiping the windshield off. I wouldn’t say whether the side windows were frosted over or not. . . . They were when we started from the dance. The car had been parked in front of the dance hall all the time we were there with nobody in it. The windshield and the side windows were free of steam or anything that would obstruct the vision as we started over the crossing. I wouldn’t say that they were perfectly clear, but they were kept wiped off so you could see. You could not see out the side windows in the rear as we came across the crossing that night. I was looking straight ahead. I guess I could have looked in a northeasterly direction as we were going north and look out the front window of ‘that car if I had wanted to look that way. As we .came across there that night, I could see through it, but I didn’t really look at it. The rear window where I was sitting on the east side was obstructed. It was fogged over. I was not paying much attention to where we were going. I was just riding. I saw the Lammon boy and the Johnson boy keep wiping the windows and windshield off while they were in the front seat. At the .times the Johnson boy and I crossed the Union Pacific tracks prior to November 28th, I don’t believe there were any trains crossing the intersection at those times and I did not see a flagman.”
Such was the testimony of plaintiffs’ witness who knew most about the accident, and there was none to the contrary. It will thus be seen that decedent did not slacken his speed as he approached the tracks; he did not keep his car under control nor use his brakes so he could stop if necessary; he did nothing whatever to insure his own safety. If he had looked to the east, as he approached within twenty-two feet of the crossing he would have had a clear view of an approaching train, for “1000 feet” according to the testimony of the street commissioner who was plaintiffs’ witness.
It is argued that the decedent relied on the assumption that a flagman would be at the crossing to warn him if a train were approaching. But if it was negligence for defendant not to have a flagman on duty at that time of night, such negligence of the railroad company did not excuse Cleo Johnson of the duty to exercise due care for his own safety. This is settled law in this jurisdiction in cases where it is sought to charge a railway with negligence and to subject it to damages to life or property in crossing-accident cases. This court has declared and applied this rule of law many times. In our recent case of Dickerson v. M.-K.-T. Rld. Co., 149 Kan. 314, 317, 87 P. 2d 585, where an adverse ruling on a railway company’s demurrer to plaintiff’s evidence in a crossing-accident case was in question we said:
“That demurrer was predicated on our oft-repeated rule of law that a man about to cross a railway track on a public road must assure himself that it is safe to do so, and if his own evidence shows that he did not take those precautions, which common prudence and the law require, he has himself to blame if he or his property is injured or damaged by a railway train, and his contributory negligence thus so clearly established will bar his recovery of damages as a matter of law. And this rule applies although the railway company and its train crew may have^been negligent also.”
In the case just cited and in McCune v. Thompson, 147 Kan. 57, 75 P. 2d 294, most of the later decisions of this court are cited and referred to. Our leading earlier crossing-accident cases were collected and cited by the late Mr. Justice Marshall in Jacobs v. Railway Co., 97 Kan. 247, 154 Pac. 1023; and Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742; so that this state has a consistent body of law relating to the duty of one about to cross a railway track to assure himself that he may safely do so; his diligence must be commensurate with the hazard; and if he fails in that duty the negligence of the railway company, whatever it may have been, will not exempt him from being guilty of contributory negligence as a matter of law. It may be superfluous to quote excerpts from our own cases in support of this long-established rule. Our early case of U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529, states the Kansas rule as well as any. In that case the alleged negligence of the railway company was in failing to set up a railway crossing sign and the failure of its approaching train to sound the whistle. This court, speaking by Mr. Justice Johnston, later Chief Justice, said:
“The negligence of the defendant, then, must be regarded as proved. The contention of the defendant, however, is that the plaintiff’s testimony discloses that her own want of ordinary caution and care directly contributed to the injury. The negligence of the defendant in such a case is not always sufficient to warrant a recovery, and while contributory negligence on the part of the plaintiff is a matter of defense, still if the plaintiff’s evidence shows that her injury was the proximate result of her own negligence, she has failed to make out a prima facie case, and notwithstanding the negligence of the defendant, the demurrer to the evidence should be sustained. (Gibson v. City of Wyandotte, 20 Kan. 158.)
“It is now well settled in this state and elsewhere, in cases where the plaintiff seeks to recover for injuries on the ground of defendant’s negligence, that if the ordinary negligence of the plaintiff directly or proximately contributed to his injury, he cannot recover unless the injury was intentionally and wantonly caused by the defendant: (Citations.)
“It is equally well settled that it is the duty of a traveler upon a highway about to cross a railroad track, to make a vigilant use of his sense's in order to ascertain whether there is a present danger in crossing. This is required not alone for his own safety, but also for the protection of the lives of the passengers upon the railway trains. The traveler who fails to take this precaution is not using ordinary care.” (p. 429.)
In the body of the same opinion, page 432, is an excerpt from Railroad v. Houston, 95 U. S. 697, worth quoting, but here we prefer to make our own selection from that opinion:.
“The failure of the engineer to sound the whistle or ring the' bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars was no excuse for negligence on her part. ... If one chooses, in such a position, to take' risks, he must bear the possible consequences of failure. Upon the facts disclosed by the undisputed evidence in the case we cannot see any ground for a recovery by the plaintiff. Not even a plausible pretext for the verdict can be suggested, unless we wander from the evidence into the region of conjecture and speculation. Under these circumstances, the court would not have erred had it instructed the jury, as requested, to render a verdict for the defendant.” (p. 702.)
The syllabus in the Adams case, supra, in part reads:
“It is the duty of a person about to cross a railroad track to make a vigilant use of his senses as far as there is an opportunity, in order to ascertain whether there is a present danger in crossing. A failure to listen, or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signals contributed to the injury. (Citations.)”
In Jacobs v. Railway Co., supra, where the failure of an electric signal bell at a railway crossing was the basis of the negligence charged against the railway company, and because of that negligence plaintiff claimed exemption from his own amenability to the rule of contributory negligence barring recovery. But this court said:
“. . . the failure of an electric bell to ring does not relieve one about to cross a railroad track of the imperative duty to look and listen before crossing. If he fails to do so, he is guilty of such contributory negligence as will prevent his recovery for any injuries sustained, and there is nothing to submit to the jury. . . .
“This court has often said that whether negligence in a particular case is shown is ordinarily a question for the jury, but when the facts are undisputed . . only one conclusion can be drawn therefrom, it becomes a question of law for the court.” (Our italics.) (pp. 251, 253.)
The same rule has been consistently applied in a multitude of our decisions for the last sixty years and no sound reason has been suggested for departing from it in the instant case.
If it be argued that it must be assumed that Johnson (and his companion) on the front seat did look to see if a train was approaching, the complete answer is that if he looked where he could not see, such looking would not discharge his duty to exercise reasonable vigilance for his own safety; and when he approached sufficiently near to the crossing so he could see the approaching train, if he had kept his car under control so he could have stopped it he would have been alive today. This rule of law and its application are trite and commonplace in our reports. Thus in Ek v. Chicago, R. I. & P. Rly. Co., 132 Kan. 177, 179, 294 Pac. 663, where a fourteen-year-old boy was killed at a railway crossing when he drove his automobile onto a railway track without looking for the possible approach of a train, Mr. Justice Smith said:
“The rule is so well settled as not to require the citation of authorities that ‘ordinary care requires that a traveler approaching a railroad crossing shall take such precaution for his safety as would be used by persons of ordinary prudence under like circumstances and conditions.’ (Clark v. Atchison, T. & S. F. Rly. Co., 127 Kan. 1, 172 Pac. 128, and cases cited therein.) According to the evidence, when he was fifteen feet from this track had he looked he could have seen an approaching train for a considerable distance. Evidently he did not do so. The evidence is, further, that had he looked when the front of his car was just a foot or two from the track he could have seen the train several miles away. Had he looked he would be alive today. This court is not prepared to say that ordinary care and precaution did not demand of Chester that he proceed to this track slowly enough to stop just before his car got into a position where it could be hit by a train, and look down the track to see if a train-was approaching. We must conclude that his failure to do so was negligence that cost him his life.”
In Clark v. Atchison, T. & S. F. Rly. Co., cited in the opinion of Mr. Justice Smith, supra, Mr. Chief Justice Johnston said:
“It was not due diligence for plaintiff to look and listen where he could not see or hear the train. He failed to stop, but drove on the track without taking other precautions than to slow down and look and listen, and knowing of the obstructions and that the ordinary means for ascertaining the perils of the crossing were not available, he should have stopped his team and vehicle and gone forward to a point where he could have had a view of the track and of the coming train. If he had done so he would have had a view of the track for a mile east of the crossing and could thus have avoided the collision and the injury suffered.” (p. 5.)
In Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 163, 12 P. 2d 715, where a verdict and judgment against a railway company in a crossing case were set aside on the ground of contributory negligence of the deceased, this court said:
“Counsel for appellee direct our attention to finding No. 10, which declares that Brim looked and listened just before he did attempt to drive across the track. To that there are two effective answers: first, there was no evidence to support that finding; and second, if he looked at any point where it would have done any good to look, he must have seen the approaching train (Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Pritchard v. Railway Co., 99 Kan. 600, 162 Pac. 315; Crane v. Railway Co., 89 Kan. 472, 131 Pac. 1188; Gaffney v. Railway Co., 107 Kan. 486, 192 Pac. 736); and if he looked at a point where he could not see, such a futile act would not discharge his duty to himself as a man of ordinary prudence (C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 482, 483, 30 Pac. 462) to ascertain whether a train was approaching ere he ventured to cross that place of danger. In Railway Co. v. Wheeler, 80 Kan. 187, 191, 101 Pac. 1001, it was said:
“ ‘It is not enough for a traveler to look where an approaching train cannot be seen or to listen when it cannot be heard. Nor will it suffice that one has looked some distance away from the crossing when a view on a closer approach would have revealed the danger. (Railroad Co. v. Holland, 60 Kan. 209; Railroad Co. v. Entsminger, 76 Kan. 746.) Where by reason of obstructions or noises an approaching traveler cannot see or hear a coming train, it may be necessary for him to stop or take some other suitable precaution to ascertain whether there is a train in dangerous proximity. (A., T. & S. F. Rld. Co. v. Hague, 54.Kan. 284.) In short, he must exercise care proportionate to the perils of the place.’ [Opinion by Johnston, C. J.]” (p. 163.)
See, also, Pagan v. Lowden, 145 Kan. 513, 519, 66 P. 2d 567.
In the case at bar the question of decedent’s contributory negligence must be faced and decided as a matter of law; it did not present a question for a jury on matters of disputed fact; and defendant’s demurrer to plaintiffs’ evidence should have been sustained.
The judgment of the district court is reversed with instructions to render judgment for defendant.
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The opinion of the court was delivered by
Harvey, J.:
On November 25, 1941, the county brought this action under G. S. 1941 Supp. 79-2801 et seq. to enforce its lien for taxes upon a described eighty-acre tract of land (and- other tracts not involved here), the title to which stood in the name of T. H. Downing and on which the unpaid taxes for the years 1931 to 1940, both inclusive amounted to $311.29. Service of summons by publication, as provided by G. S. 1935, 60-2525 et seq., was had upon T. H. Downing and wife, if living, and if deceased upon their unknown heirs, etc., as authorized by G. S. 1941 Supp. 79-2801. On February 19, 1942, no appearance having been made by defendants, the court, upon due consideration, rendered judgment for plaintiff, foreclosing its tax lien upon the property in question. In due course an order of sale was issued and on April 13 the sale was had, at which time the land in question was sold to Orville Mann for $625. On April 25, 1942, plaintiff filed a motion to confirm the sale. Two days later T. Mac Downing, by his attorney, filed a motion asking the court to refuse to confirm the sale for the reason “that this petitioner, with his sister, owns this land, was not made a party to this action, had no knowledge of the sale, or the proceedings as had therein, . . .”
On June 2, 1942, T. Mac Downing filed an answer, which contained a general denial, and alleged that he, jointly with his sister, was the owner and in possession by a tenant of the land; that the tenant knew his address to be McComb, 111., and that his address was also on record with the Farm Bureau in the courthouse, and further alleged the rendition of the judgment of February 19, the sale on April 13, and that he had filed the motion asking the court to refuse to confirm it. He further alleged that he had no knowledge of the proceedings prior to about April 20, 1942; that Orville Mann purchased the property with full knowledge of the fact that it was to be sold to satisfy the judgment obtained on publication service, with knowledge of the tenancy, and was not a purchaser in good faith, and that defendant is ready and willing to pay to the clerk of the court the sum alleged to be due, $311.29, with interest and costs. The prayer was that the sale held April 13 be set aside and for an order of the court directing that the amount alleged be paid into the hands of the court. This was verified by defendant’s attorney.
Orville Mann, the purchaser at the sheriff’s sale demurred to this answer, which demurrer was sustained by the court.
On August 8,1942, T. Mac Downing paid to the clerk of the court $365.89 to cover the obligation involved and filed an amended and supplemental answer, including the allegation of the payment to the clerk of the court. The demurrer of Orville Mann to this answer was sustained and the defendant was granted until December 5, 1942, in which to plead. On December 31, 1942, T. Mac Downing filed a second amended answer with the additional allegations that at the time judgment was rendered in this action the court was not fully advised as to the exact and true conditions which existed, in that the petition did not contain a proper description of the land, the correct amount of taxes, judgment, interest and penalties chargeable thereto, the proper owner having an interest therein, and in not giving the date of sale for delinquent taxes, and the name of the tenant in possession; and further alleged that the property was reasonably worth $1,600, and that the amount of the sale was far below its value. This was verified by defendant’s attorney, who also filed a separate affidavit that T. Mac Downing was absent from the state and had no actual knowledge of the pendency of the action until about the 20th of April, 1942.
Orville Mann, as purchaser at the sheriff’s sale, moved to strike that answer from the files for the reason that it was filed out of time without the consent of the court. On January 6, 1943, T. Mac Downing filed an affidavit stating that he and his sister jointly owned the land in question and that during the pendency of the cause neither of them had any actual notice or knowledge of the pendency of the suit in time to appear and defend. On January 6, 1943, the court sustained the motion to strike from the files the second amended answer of T. Mac Downing. He then asked permission of the court to file the answer, which was granted. Orville Mann demurred thereto for the reason that it did not state facts sufficient to constitute a defense to the cause of action set forth in the petition. This demurrer was considered and sustained. The court also confirmed the sale and ordered the sheriff to execute a proper deed to the purchaser, Orville Mann. This order was stayed pending this appeal by the giving of a supersedeas bond.
Appellant contends the court erred in sustaining the demurrers to his several answers. The point is not well taken. It is well settled that to open a judgment rendered on publication service under our statute (G. S. 1935, 60-2530) the defendant must not only show to the satisfaction of the court that he had no actual knowledge of the suit in time to defend, but also he must file an answer which sets up a defense to the cause of action set forth in the petition. (Durham v. Moore, 48 Kan. 135, 29 Pac. 472; Frizell v. Northern Trust Co., 144 Kan. 481, 61 P. 2d 1344; Union Central Life Ins. Co. v. Heldstab, 146 Kan. 929, 73 P. 2d 1020.) The answers filed by appellant contain no allegations of issuable facts which, if filed before judgment and considered by the court, would have justified the court in refusing to give judgment for plaintiff. Had the facts justified it, defendant might have alleged that the land was not subject to taxation, or that the taxes had been paid, or that the statute under which levies had been made was invalid. Perhaps other defenses to the action might have been pleaded if the facts warranted it. Here no meritorious defense was pleaded. In the absence of such an answer pleading a defense the court was justified in sustaining the demurrers.
Appellant argues that the court erred in not accepting as payment of the tax the payment made into court for'that purpose on August 8, 1942. The statute (G. S. 1941 Supp. 79-2803) only authorizes defendants to pay before the day of sale, which in this case was April 13, 1942. So at the time the payment was made by appellant to the clerk of the court he had no statutory right to make the payment and insist on having the sheriff’s sale set aside. In this court appellant calls our attention to Atchison County Comm’rs v. Wright, 151 Kan. 325, 99 P. 2d 857, where the court held that the trial court had a measure of discretion which should have been exercised in favor of the taxpayer in that case. The facts, however, are quite different. The property there was the homestead of the taxpayer and his wife. They had bought the property in 1920 and paid $2,000 for it and since that time had occupied it for their home. At the time of the hearing it was worth about $500. The judgment for taxes against the property was $38.96. The bid at the sale was only $13.50. The character of the property and its use, its value, and the low bid compared with the judgment, prompted this court to conclude that the trial court should have exercised a judicial discretion and given the taxpayer an opportunity to save his home. The court did not hold, and did not intend to hold, that in any case the taxpayer might ignore not only the judgment of the court but the judicial sale and come in and pay the taxes any time before a sheriff’s deed is issued. To do so would discourage bidding at such sales. The factual situation in this case is quite different. Here owners of the property for ten years contributed nothing in taxes to the support of the state and local government. Apparently they had been getting some return from it all that time. It was not a homestead. The amount bid for the property was a great deal more than the judgment for taxes. While in one of the answers it was alleged the property was of the reasonable value of $1,600, on the other side we are told in the brief that the sale was for a fair amount. There was no evidence as to the value of the property, and the court made no finding on that point and we cannot decide it here. Under our statute relating to judicial sales (G. S. 1935, 60-3463a) the bid was adequate.
The amendments made to our tax laws ip recent years have looked toward the more prompt collection of taxes. Since appellant had no statutory right to pay the taxes in August, 1942, and have the sheriff’s sale set aside, and we find no reason to say that the situation is such as to require the court to exercise its equity powers for the relief of the taxpayer, we find no error in the trial court’s ruling.
The result is the judgment of the court below should be and is affirmed.
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The opinion of the court was delivered by
Parker, J.:
The parents of a deceased son brought this action to recover damages for his wrongful death. The son, Edward Rasing, Jr., was killed when the automobile in which he was riding collided with the rear end of a truck owned by the defendant, Healzer Cartage Company, of Hutchinson, Kan., which company had procured from the Casualty Reciprocal Exchange, a corporation, and filed with the State Corporation Commission, as required by its rules and regulations', a liability policy of insurance covering the company’s operations as a common carrier of property. The insurance carrier was included as a defendant in the action.
On issues joined by the pleadings the case came on for trial to a jury. A demurrer to the plaintiffs’ evidence and a motion for directed verdict were filed by the defendants and overruled by the trial court. The case was then submitted to the jury, which in due time returned a general verdict for plaintiffs along with its answers to eight special questions. The defendants then filed a motion to set aside findings of fact numbered 4, 7 and 8 on the ground they were unsupported by and contrary to the evidence, a motion for new trial based on general grounds provided for by statute, and a motion for judgment non obstante veredicto for the reason that the answers to findings of fact numbered 1, 2, 3 and 5 compelled a judgment in their favor. The trial court overruled the motions to set aside the findings and for a new trial, but sustained the motion for judgment non obstante. The appeal is by the plaintiffs from the ruling sustaining such motion and the judgment in favor of defendants for costs.
Appellants’ specification of errors actually raises but two .questions : First, whether the trial court erred in ruling upon appellees’ motion for judgment non obstante veredicto after overruling the motion for a new trial; second, whether such court erred in sustaining appellees’ motion for judgment notwithstanding the general verdict in favor of appellants. No other issues are involved, the appellees having filed no cross-appeal.
In view of the nature of the questions raised by the appeal and since a motion for judgment on the special findings, non obstante veredicto, admits for the purpose of such motion, that the findings are supported by evidence (Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859), it is wholly unnecessary to relate in detail the facts of this case as disclosed by the record. Briefly, it can be stated the collision occurred on the morning of December 23, 1940, shortly after the hour of 2:30 o’clock a. m., on U. S. highway No. 40, at a point about one mile east of the city of Manhattan, Kan., and at the moment the driver of the automobile, in which the deceased was riding, attempted to pass or go around the defendant company’s truck. At the time both vehicles were or had been proceeding along such highway in a westerly direction toward Manhattan. There was some dispute in the testimony as to the xate of speed at which both the automobile and the truck were traveling or whether the truck was moving at all, also some dispute as to other facts material to a determination of the responsibility of the parties involved for the accident. However, those disputed questions of fact were determined by the jury in its answers to the special questions submitted and for the purpose of this appeal are binding upon the parties and must be accepted by this court as true.
The special interrogatories submitted by the court, and the finding of the jury in response thereto, were as follows:
“1. At what speed was the car in which deceased was riding traveling at and immediately before the collision? A. 50 to 60 miles per hour.
“2. Were the lights on the rear of defendant’s Healzer truck burning immediately before and at the time of the collision? A. Yes.
“3. How many red lights were there burning in the rear of defendant’s truck at and immediately before the collision? A. Eight.
“4. How far from the rear of defendant’s truck could the rear lights thereon be seen under the conditions prevailing at the time of the accident? A. 175 feet.
“5. Was the truck belonging to defendant, Healzer, moving forward in its own lane of traffic at the time of the collision? A. Yes, moving slowly.
“6. If you should find in favor of plaintiffs, then state the acts of negligence of which you find the defendant, Healzer, or his employee, Wes Stephens, guilty? A. Stopping on concrete slab without putting out flares.
“7. What, if anything prevented the driver of the car in which deceased was riding from seeing the lights on defendant’s truck in time thereafter to have avoided colliding with it? A. The curve, in the road.
“8. What, if anything, prevented the deceased, Rasing, from seeing the lights on defendant’s truck in time to have- warned the driver of his car of the truck’s presence on the highway? A. The curve in the road.
“9. Was the deceased, Edward Rasing, Jr., guilty of contributory negligence? A. No.
“10. If you answer the above question ‘yes’ set out what he did or failed to do that made him guilty of such contributory negligence? A.-.
“11. Was the driver, Ryan, and the deceased, Edward Rasing, Jr., engaged in a joint enterprise? A. No.”
We shall first give our attention to appellants’ contention the trial court erred in ruling upon appellees’ motion for judgment non obstante veredicto after overruling the motion for a new trial. The record fails to indicate the date of the filing of any of the post-trial xnotions, but the journal entry of judgment discloses they were all ruled upon and judgment was rendered by the trial court on De cumber 15, 1942. Appellants cite no decisions of this court holding that post-trial motions must be considered and acted upon by the trial court in any particular order, and we find none. Neither do we find anything in our code of civil procedure requiring consideration of such motions in the order contended for. It is suggested, since no appeal or cross-appeal was taken by the appellees from the ruling on the motion for new trial, that ruling is res judicata and binding upon the parties. We can find no merit in appellants’ contention. Long ago this court announced and has repeatedly followed the rule that within the same term at which a judgment is rendered the trial court has absolute power over it, and may modify, alter, change or vacate it, in whole or in part, and no error can be predicated upon the mere fact that at the conclusion of a trial the court first announced its decision would be in favor of defendant but ultimately and within the same term of court gave judgment in favor of plaintiff. Numerous cases applying this general rule to the facts involved therein could be cited. For the few of many, see: Burnham v. Burnham, 120 Kan. 90, 242 Pac. 124; Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176; State v. Langmade, 101 Kan. 814; 168 Pac. 847; Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988; Standard Life Ass’n v. Merrill, 147 Kan. 121, 75 P. 2d 825; Eckl v. Brennan, 150 Kan. 502, 506, 95 P. 2d 553, and State v. Bowser, 154 Kan. 427, 118 P. 2d 1055.
We are not called upon and shall not attempt to here pass upon whether it is better practice to rule upon a motion for new trial before ruling upon a motion for judgment non obstante or whether the reverse of that procedure is'more desirable. Nor are we called upon to determine the reasoning which prompted the trial court to rule on the motions in the instant case as it did. Were we.to indulge in speculation we might conclude the learned trial judge of the court below was familiar with the decision in Torpey v. Kansas City Public Ser. Co., 149 Kan. 735, 89 P. 2d 899, wherein we held in re-A^ersing the ruling of a trial court in sustaining a motion for judgment notwithstanding the general A^erdict, which motion had been acted upon prior to the overruling of a motion for new trial, that the action of the court in overruling such motion for new trial was, under those circumstances, nugatory and required a remanding of the cause for further consideration. The trial judge in the instant case may have concluded he was satisfied with the answers to the special questions and the general verdict except for one thing and that was that the answers to questions 1, 2, 3 and 5 compelled a judgment for the appellees non obstante. He may also have concluded, under such circumstances, that in passing upon the motion non obstante after overruling the motion for new trial he was making a record whereby this court, if on appellate review it determined he had erred in his ruling on the former motion, could say the verdict had been approved in all other particulars and end this case without the necessity of further delay. If such was his purpose who can be heard to say it was not a laudable one? Irrespective of what speculation may lead us to believe was the reasoning responsible for the procedure followed in the court below, the most that can be said for appellants’ contention, giving them the benefit of their interpretation that in overruling the motion for new trial the trial court found appellees had had a fair trial, the verdict was not contrary to the evidence and in effect approved the judgment which the clerk of the court had previously entered upon the general verdict, is that after ruling on such motion the trial court changed its mind and rendered judgment on the special finding in favor of appellees. Conceding, Tut not admitting, for purposes material to their position that the trial court did change its mind, we hold the rule that district courts have absolute control of their judgments during the term at which they were rendered is applicable to appellants’ situation and the procedure followed by the trial court in ruling on the motion non obstante was not error.
The next and principal question raised by appellants in their specification of errors is that the trial court erred in sustaining appellees’ motion for judgment non obstante veredicto on the ground the answers to special findings numbered 1, 2, 3 and 5 compelled a judgment for the defendants.
It must ever be kept in mind in giving consideration to this question, that in actions for damages predicated upon negligence, this court has consistently and repeatedly held a specific finding of negligence is in effect a finding negativing existence of any other form of negligence, is a declaration by the jury that the general verdict is not based on any other form of negligence and all other negligence alleged by the pleadings to exist or mentioned in the evidence is excluded as a 'basis for such general verdict. (See Roberts v. Railway Co., 98 Kan. 705, 16 Pac. 590; Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715; Cole v. Cook, 137 Kan. 250, 20 P. 2d 483; Walls v. Consolidated Gas Utilities Corpy., 150 Kan. 919, 96 P. 2d 656; Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P. 2d 723; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665, and Haley v. Kansas City Public Ser. Co., 154 Kan. 477, 119 P. 2d 449.)
In the instant case there was a specific finding by the jury as to the act of negligence committed by the defendant, Healzer, or his employee, Stephens, the driver of the truck. That finding was limited to one act of negligence which the jury found was “stopping on concrete slab without putting out flares.”
Appellants strenuously argue there were other acts of negligence alleged in their petition and evidence adduced during the trial which established the truck driver was guilty of acts of negligence other than that specifically found by the jury and since a general verdict was returned in their favor these, as well as the specific finding, furnish a basis for such verdict. We do not have the time or space to relate appellants’ position with respect to such contentions in detail and it would serve no useful purpose to do so. The answer to their argument as to each and every contention is that under the rule hereinbefore referred to, which has been followed by this court through a long line of decisions extending over a period of many years, the specific finding of the jury as to what it thought was the negligence of the driver of the truck and appellee Healzer, acquitted them of all other acts of negligence alleged in the pleadings or submitted in evidence for the jury’s consideration. The rule a jury, in answering a special question submitted to it as to alleged negligence, finds one ground thereof does not preclude reliance on another ground alleged in the petition and fairly included in the answers to other questions submitted (Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 119 P. 2d 459, and Dick’s Transfer Co. v. Miller, 154 Kan. 574, 119 P. 2d 454) is not applicable here for other findings cannot be held, either expressly or by inference, to relate to any negligence on which a basis for liability on the part of appellees could be predicated. In this lawsuit there being but one finding as to negligence, the appellants, insofar as acts of negligence on the part of the appellees are concerned, must stand or fall upon that finding.
Before taking up the question of whether the finding “stopping on concrete slab without putting out flares” was such a finding of negligence as precluded, when considered along with all the other findings, the rendition of judgment non obstante veredicto on findings 1, 2, 3 and 5 as contended for by appellees, we shall consider all of the findings with the view of determining whether they are consistent with each other for under all recognized principles they must be harmonized. Of course, if the special findings on material issues of fact are inconsistent, judgment on the verdict cannot stand nor can the trial court render a judgment non obstante veredicto thereon. Under such circumstances, the judgment should be reversed and the cause remanded for a new trial. (Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271.) Fortunately, for our purposes in this appeal, all parties now agree the findings are consistent with each other, the appellants contending they are consistent and sustain the general verdict and the appellees standing upon the proposition that although they are consistent in themselves, nevertheless when considered as a unit they furnish no reasonable basis for the general verdict and are so inconsistent with it as to compel the rendition of judgment non obstante veredicto on the specific findings set forth in their motion. The only dispute with respect to consistency of the findings arises from the contention of appellants, which is vigorously denied by counsel for appellees, that appellees contended in the court below and the trial court found the findings were inconsistent and judgment' non obstante was rendered on that theory. In view of this situation we have examined the record and have concluded there is no reasonable basis for appellants’ contention. We have also examined the findings for the purpose of ascertaining whether they can be harmonized, and we conclude such findings are consistent with each other. On first glance findings 5 and 6 might appear to be inconsistent. The question on which finding 5 is based demands a specific answer as to whether the truck at the time of the collision was moving forward in its own line of traffic and its answer is “yes.” The question on which finding 6 was based requires a specific answer as to the acts of negligence of which the jury found the truck driver and defendant Healzer guilty and its answer is “stopping on concrete slab without putting out flares.” Comparing the findings, they can be harmonized by construing finding 5 to mean the truck was moving forward in its own lane of traffic, and finding 6 to mean that such truck, immediately before the accident, had stopped and had not put out flares. This construction is in accord with the undisputed evidence as disclosed by the record and is the only reasonable interpretation, in our opinion, that can be given the findings.
As above indicated, having determined the findings are consistent, the final and all-important question remaining for our consideration is whether findings 1, 2, 3 and 5 when considered with all the other findings are in conflict with the general verdict. If so, the general verdict cannot stand. (G. S. 1935, 60-2918; Sayeg v. Kansas Gas & Electric Co., 156 Kan. 65, 131 P. 2d 648; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665, and Commerce Trust Co. v. Pioneer Cattle Loan Co., 120 Kan. 712, 715, 244 Pac. 840.) However, it is the duty of the court to harmonize the answers to special questions with the general verdict if that can reasonably be done (Hollingsworth v. Berry, 111 Kan. 730, 207 Pac. 841, and cases there cited; Montague v. Burgerhoff, 152 Kan. 124, 102 P. 2d 1031) and unless the special findings clearly overthrow the general verdict the latter must be permitted to stand. (Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P. 2d 924, and Sams v. Commercial Standard Ins. Co., supra.)
Guided by these rules what must be said as to the special findings and their sufficiency? The principle that in an action to recover damages for negligence there must be some negligence which caused the injury for which damages are sought is too simple and elementary to require citation of authorities. As heretofore stated, it is our view the appellees, under the facts and circumstances herein related, were acquitted by the jury of all negligence save and except that specifically found by it in its finding No. 6. However, that finding as to what it thought was negligence does not make the appellees guilty of negligence unless it can be held that the acts found to have been committed by the driver of the truck actually constituted negligence in law under our statute and decisions. The appellee company’s truck equipped with lights, as required by statute, was moving slowly forward along the highway in its own line of traffic at the time of the collision. Such was the finding of the jury, and it cannot be disputed. Is the driver of a truck who is proceeding along the highway, under the circumstances just related, guilty of negligence at the moment of a collision because theretofore he had stopped on the concrete slab without putting out flares? The only statute we have been able to find which requires the operator of a motor truck to put out flares or other signals is G. S. 1941 Supp. 8-5, 108, which reads: •
“(a) No person shall operate any motor truck upon a highway outside of a business or residence district at any time from a half hour after sunset to a half hour before sunrise unless there shall be carried in such vehicle a sufficient number of flares, not less than three, or electric lanterns or other signals capable of continuously producing three warning lights each visible from a distance of at least 500 feet for a period of at least eight hours, except that a motor vehicle transporting flammables may carry red reflectors in place of the other signals above mentioned. Every such flare, lantern, signal, or reflector shall be of a type approved by the commissioner, and he shall publish lists of those devices which he has approved as adequate for the purposes of this section, (b) Whenever any motor truck and its lighting equipment are disabled during the period when lighted lamps must be displayed on vehicles and such motor truck cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, lanterns, or other signals to be lighted and placed upon, the highway, one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet to the rear of the vehicle, and the third upon the roadway side of the vehicle, . . .”
It should be noted the section just quoted requires flares, lanterns or other signals to be put out “whenever any motor truck and its lighting equipment are disabled” during the time when lighted lamps are necessary and when such motor truck cannot immediately be removed from the highway. It should also be noted that a fair interpretation of the section requires the conclusion that the truck must be parked or stopped to necessitate the putting out of flares, etc. It must further be noted such action is necessary only when the lighting equipment is disabled or for some other reason is turned off and not lighted. Here the truck was not parked or stopped but moving slowly forward in its own lane of traffic. Its lighting equipment was not disabled, but lighted. The net result of an examination of all the findings of fact as returned by the jury and an examination of the statute requiring the putting out of flares leads to the inevitable conclusion that under the facts and circumstances existing at the time of the collision and under the statute applicable thereto the finding “stopping on concrete slab without putting out flares” did not as a matter of law convict the driver of the truck of any negligence. So far as the appellants are concerned the question had just as well remained unanswered. Having been acquitted by the finding of all other acts of negligence there was no negligence on which to predicate liability on the part of the appellees and the general verdict was inconsistent with the special findings. The fact the deceased could not see the rear lights of the truck for more than 175 feet, the fact there was a curve in the road which prevented him from seeing the lights in time to have avoided the collision or warn the driver of the automobile in which he was riding so that he could have prevented the collision, the fact the deceased was not guilty of contributory negligence and the fact he was not engaged in a joint enterprise, all as disclosed by findings 4, 7, 8, 9 and 11, are of no more force than finding 6, as their value to appellants depends of necessity upon some finding of actionable negligence. In view of the conclusions here announced it follows findings 1, 2, 3 and 5 conclusively establishing that at and immediately before the collision the car in which deceased was riding was traveling between 50 and 60 miles per hour, that at and immediately before the accident eight red lights were burning on the truck and that such truck was at the moment moving slowly down the highway in its own lane of traffic compelled a judgment non obstante veredicto.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for the possession of certain real property and for damages. The trial court sustained defendant’s demurrer to plaintiff’s amended petition and she has appealed.
On May 24, 1941, plaintiff filed with the city clerk an “application and demand of Laura D. Root for possession, use of property and damages.” This recited that plaintiff was the owner of two described irregular lots or tracts of land within the city lying adjacent to the city dike along the south side of the Kansas river; that the city, through its street department and park commissioner, used each of the tracts for storage, placing of rock and equipment to be used by the city in its rock crushing plant, and for driveway purposes and the'dumping of street cleanings, dirt and trash, “for the past 25% months and without the consent of claimant”; that the fair and reasonable value of the use of each of said tracts “and damages” to claimant was $150 a month; that claimant had iron fences around the tracts, the iron posts being set in cement blocks on the property line, and that the city, through its agents and employees, has destroyed the fences, to claimant’s damage in the sum of $150, and claimant asked for an order “directing the city clerk to issue the proper warrant to claimant in the sum of $7,800 for the amount of her damages sustained.”
On August 20, 1941, plaintiff filed this action, and after the rulings on motions directed to the petition filed her amended petition on May 4, 1942. In this it is alleged that plaintiff is a resident of Topeka; that defendant is a municipal corporation under the laws of this state and a city of the first class operating under the commission form of government; that plaintiff is the owner of the two lots or tracts, which were described; that defendant, through its officers and employees, has occupied and used all the described real estate “for a period of more than twenty-five and one-half (25%) months immediately prior to the 20th day of May, 1941, and have kept plaintiff out of the possession thereof and are occupying and using all of said real estate against the will of this plaintiff and during all of said time have and still deny plaintiff’s right to the possession of the same.” The filing of the claim with the city clerk on May 24, 1941, and its rejection in July, 1941, were alleged, and a copy of the claim presented to the city was attached to the petition and made a part thereof. It was further alleged that the fair and reasonable value of the use of the premises for the time was $7,800. Judgment was asked for that sum and for the immediate possession of the property.
To this petition defendant filed a motion to make more definite and certain, also a motion to strike and a motion to require plaintiff to elect whether her claim was filed under G. S. 1935, 12-105 or 13-1414, all of which motions were overruled. Defendant then demurred to the petition on the ground that the same does not state facts sufficient to constitute a cause of action.
The court sustained the demurrer on the ground that the matters set out in the petition are barred by the two-year statute of limitations and that proper notice was not filed with the city either under G. S. 1935, 12-105 or 13-1414.
As to the statute of limitations, we think the court correctly construed the petition as attempting to state a cause of action for trespass on real property, to which the two-year statute of limitations (G. S. 1935, 60-306, third) applies. See K. P. Rly. Co. v. Mihlman, 17 Kan. 224. Appellant contends the statute (G. S. 1935, 12-105) does not apply to this type of case. We think it does. See Campbell v. City of Wichita, 101 Kan. 817, 168 Pac. 833; Griffith v. Railway Co., 102 Kan. 23, syl. ¶ 8, 169 Pac. 546; Nelson v. City of Ottawa, 125 Kan. 482, 264 Pac. 1049, and the cases cited in the annotations on the various phases of this question contained in 52 A. L. R. 639, 642; 116 A. L. R. 975, 977, 978; and 122 A. L. R. 1513, 1514.
Counsel for appellant advises that at some time — the date not stated — after the action was brought defendant ceased to occupy the property, and contends that the question of possession of the property is now moot. We think the court was justified in passing upon the pleadings before it, and even if that element were omitted from the claim, it remains one of damages for wrongful possession or wrongful use of the property.
We shall not consider whether plaintiff might have considered this a continuing wrong and therefore entitled to recover for such damages as accrued within three months prior to the filing of the claim, as was ruled in Jeakins v. City of El Dorado, 143 Kan. 206, 211, 53 P. 2d 798, citing Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540, for the reason that plaintiff made no such claim in the court below, or in this court, and for the further reason that counsel for plaintiff in their briefs cited the Beard case on another point, from which we may conclude they were familiar with the possibility that such a claim might have been made.
In the oral argument in this court counsel for appellant suggested that recovery might be had under G. S. 1935, 67-520. This is the section of our landlord and tenant act, and it provides:
“The occupant without special contract, of any lands, shall be liable for the rent to any person entitled thereto.”
Obviously this is an afterthought. The question of the applicability of this statute was not presented to nor considered by the trial court. In any event, a claim under that statute would have to be filed as against the city, which, unlike a private individual, is bound by various statutes pertaining to its budget and the payment of claims.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This is a habeas corpus action wherein two petitioners ask that the warden of the Kansas State Penitentiary be directed to release them from custody.
The case was presented to this court at the December session of 1942. A reputable member of the bar of Shawnee county had been appointed by us to represent the petitioners. At the oral argument it appeared that a petition for a writ had been filed in Leavenworth county and that the writ had been denied. The petitioners had attempted to appeal from the judgment of the district court of Leavenworth county and in the meantime had filed an original application for a writ in this court. The attempted appeal and the original petition came on to be heard at the same time in this court. It appeared at that hearing that no proper record had been made of the proceedings in the district court so that no review could be had of the action of that court. It further appeared that there was a question of fact in the original petition which would require the taking of evidence. •
The petitioners had alleged in their petition in the original proceedings in this court that they had requested counsel at the time they pleaded guilty and that their request had been denied.
It is well settled that an accused may properly plead guilty to a criminal charge without the advice of counsel in the absence of request from him for counsel. See Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586; Jones v. Amrine, 154 Kan. 630, 121 P. 2d 263; Brewer v. Amrine, 155 Kan. 525, 127 P. 2d 447; Oller v. Amrine, 155 Kan. 703, 127 P. 2d 475, and Garrison v. Amrine, 155 Kan. 509, 126 P. 2d 228.
The question of fact, then, was whether petitioners had been denied counsel at the time they pleaded guilty in the district court of Wyandotte county about August 5, 1936, or whether they had waived their right to counsel or, stated in another way, whether they had requested counsel at the time they pleaded guilty.
Since the petitioners were destitute and no effective order could be made requiring them to advance any part of the expenses attendant on a hearing before us, we decided to assign one of our members to hold hearings in the case and gave him authority to subpoena and swear witnesses and do all other things 'necessary in conducting the hearing as to the facts in the original proceedings.
Accordingly a justice was assigned to do these things. He held one hearing on February 20, 1943, at the penitentiary at Lansing, Kan., and one on April 12, 1943, at the Wyandotte county courthouse in Kansas City, Kan. An assistant attorney general represented the respondent. The transcript of the testimony of the witnesses who testified at these hearings was made at the expense of ,the attorney general. This transcript was made available to counsel for the petitioners, has been on file with the clerk of this court and has been examined by us. The case was set down for argument on the merits before the entire court at the July session. We examined the transcript of the evidence and read the briefs of the parties.
The petitioners pleaded guilty about August 5, 1936, to three charges of robbery in the first degree and were sentenced to be confined in the penitentiary at Lansing for terms of from ten to twenty-one years on each charge, the sentences to run concurrently. They were taken immediately to the penitentiary and have been confined there ever since.
It should be stated at the outset that the question of what happened in this case was rather difficult to determine due to the fact that the prosecution seems to have been handled by two detectives of the Kansas City, Kan., police force, both of whom are now dead, and the judge who sentenced them is also dead.
At the hearing in the office of the warden of the penitentiary at Lansing the two petitioners, George P. Bradley and Richard E. Monk, each testified. Katie Bradley, the mother of petitioner Bradley and the aunt of petitioner Monk, and Mary Garcelon, who is the sister of George Bradley and a cousin of Richard Monk, also testified for the petitioners. For the respondent, John J. Bukaty, who at the time of the plea was deputy clerk of the district court and at the time of testifying was assistant county attorney, and T. P. Palmer, who at the time of the plea was assistant county attorney, both testified.
Bradley testified that at the time they were arrested he lived with his mother in Kansas City, Mo., and Monk, his cousin, lived with them; that he had served a term of from one to ten years in the Missouri State Penitentiary for highway robbery; that he had been out on parole for about seven months when he was arrested in this case; that he had also served two months in the reformatory in Colorado for car theft; and he had been arrested in Kansas once for carrying a concealed weapon; that at the time of the hearing he was thirty-one years old; that he had been in the penitentiary about six and one-half years, so he was about twenty-four or twenty-five years old when he was sentenced.
Monk had also served five years and ten months in the Missouri penitentiary for first-degree robbery with Bradley and was also with him at the time he had the trouble about the gun.
Both of these men were employed at the time of their arrest on the charges upon which they are now incarcerated. One was driving a truck for a moving company and the other was driving a delivery wagon for the Jones department store. They had both just about reached the sixth grade in school and had been raised in Kansas City, Mo. They were arrested in a picture show in Kansas City, Mo., about eight o’clock at night by the Kansas City, Mo., police officers. These officers told them they were wanted for robbery in Kansas City, Kan. They waived extradition and were taken to Kansas City, Kan. There they were turned over to two detectives, William McMullin and Mr. Downs. Bradley testified that these detectives accused them both of highway robbery and that when they denied being guilty started beating them up. He swore they were not allowed to talk to anybody but that their folks found they were there and came to see them. He testified they asked McMullin for an attorney and McMullin told them all they needed was a good killing; that they were taken to a room where some people looked at them and said, “This is them;” that they were taken to Judge Miller’s courtroom to what they thought was a preliminary hearing; that the judge was the only one in the courtroom when they were taken there; that about the time they entered the room Bradley’s sister and mother and brother came into the room and Bradley asked the judge for an attorney and the judge made some wisecrack about it and said, “How are these boys pleading?” and the detective McMullin said, “They are pleading guilty, Your Honor, and I recommend ten to twenty-one years,” and that the judge then said, “Ten to twenty-one years.” He testified that Bradley’s sister said, “Your Honor, I wish to speak to you a minute,” and the judge left the room and the detectives grabbed her and pushed her out of the courtroom; that at the time they were sentenced Bradley did not know anything about what he was charged with or why he was there; that he told his mother he had been sentenced to prison and asked her to get a lawyer; that the next day a lawyer came to him and said he would take the case for |300; that he had no money and never heard anything more from this lawyer and six days later they were taken to Lansing.
On cross-examination he denied that he was taken into a courtroom where he waived his preliminary examination.
Monk’s evidence was to about the same general effect.
They both testified they had been in some trouble in the Kansas penitentiary since they had been there on this sentence and that this trouble had been such that they had been denied their usual good time allowance. Were it not for this they, each of them, would be eligible for a parole by this time.
Katie Bradley, the mother of petitioner Bradley, testified that the day after the boys were arrested she came to Kansas City, Kan., and saw the boys; that they had been beaten up terribly and the detectives told her her son had an incurable disease and that they were in trouble for stealing harness; that when they went in the courtroom the judge was sitting on the bench and there wasn’t anybody else there except herself, these two detectives, the two boys and her daughter and her son; that one of the detectives that brought the boys here said to the judge, “I recommend ten to twenty-one years” and the judge said, “Ten to twenty-one years;” that Bradley said, “Give us a lawyer, judge,” and the detective said, “They don’t need a lawyer” and the judge paid no attention, and that her daughter saw a lawyer named White.
Mary Garcelon testified that she was a sister of George Bradley and a cousin of Richard Monk; that she was born and reared in Kansas City; that she went to see them the day after they were taken to the city jail in Wyandotte county and when she saw them in jail they were bloody from their knees to their ankles and that when Bradley asked the detectives to furnish a lawyer the detectives said, “You don’t need a lawyer, all.you need is a good killing;” that she went to the prosecutor’s office and asked to see the prosecutor and a man went into another office and came back and said, “Sorry, the prosecutor will not be able to see you;” that they had been told they would have a preliminary hearing the next morning so they were pretty sure the boys would be released; that the boys were taken to the courtroom where they saw an old judge who “didn’t seem to be all there somehow;” that the judge said, “Guilty or not guilty;” and when her brother started to speak he said, “I certainly want a lawyer, Your Honor;” that one of the detectives said, “These men plead guilty and I recommended ten to twenty-one years;” the judge then said, “I sentence you to ten to twenty-one years;” that the judge paid no attention when her brother asked for a lawyer and she said, “Your Honor, may I speak to you a minute?” that he completely ignored her and the detective grabbed her and took her out of the courtroom; that that was the last time she saw her brother.and cousin until they were in the penitentiary; that afterward she talked to a lawyer and he said he would take the case for $300; that she did not have the $300 and did not know what happened.
The affidavit of the brother of Bradley as to what happened was offered and it was agreed by the parties with the approval of the justice that this affidavit should be treated as though the brother had actually appeared before the justice in person and testified. This affidavit was to the same general effect as that of the other witnesses.
The foregoing about completes the testimony for the petitioners.
The burden is on the petitioners to prove by a preponderance of the evidence that they were denied counsel and that they did not waive the right to counsel. The journal entry of judgment stated that they did not have counsel. However, the presumption is in favor of the regularity of the court proceedings. (See Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461.) The two petitioners being inmates of the pentitentiary, their testimony is subject to careful scrutiny because it is apparent that they would go to great lengths in their testimony to secure their release. Furthermore, the penalty for perjury would hold very little terror for them. The mother and sister were interested witnesses.
The rule that certain matters must be proven by a preponderance of the evidence has received attention in law books from time to time. What it means is that the body charged with making the findings of fact, whether it be a jury, court or commissioner, must be convinced that the statement of facts for which the party upon whom the burden rests, is true. Sometimes a dozen witnesses may testify to a certain statement of facts, but if the tribunal charged with finding the facts does not believe any of these witnesses then that fact has not been established by a preponderance of the evidence. We have said many times that the court or jury is not required to believe the testimony of a witness merely because there is no direct evidence to contradict it. (See Trustees of Baker Uniersity v. Farrar, 134 Kan. 722, 8 P. 2d 343; Peoples National Bank v. Diven, 135 Kan. 400, 10 P. 2d 883; Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 343; Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812 and In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352.)
The story told by these witnesses, if it were believed by the court, would require a finding of fact that petitioners not only did not have counsel but that they requested counsel and it was denied them.
When they had finished putting on their evidence it appeared that it would be easy to find some official in the courthouse who was present when these events transpired. The statement of the assistant attorney general to the court, however, disclosed that the two detectives, whom the petitioners said had charge of their case and who took them into the courtroom for their plea, were dead. The judge who passed the sentence was dead. The county attorney himself had no independent recollection of the case whatever. This was not strange in view of the great number of cases that are handled by the office of the county attorney of Wyandotte county in the .course of a year. The respondent, however, did offer the evidence of Mr. John J. Bukaty, who was deputy clerk of the district court in Wyandotte county at the time these pleas were made, and was assistant county attorney of Wyandotte county at the time he testified. He also offered the testimony of Mr. T. P. Palmer, who was assistant county attorney at the time the pleas were entered, but had no official position at the time he testified.
These two men testified at the hearing in the warden’s office at Lansing.
Mr. John Skwarlo, who was deputy clerk of the district court, division No. 1, at the time the pleas were made; Mr. Alan W. Farley, who was judge pro tern in the city court on that day, and Mr. William Armstead, who was also deputy clerk of the district court on the day the pleas were made — all three testified at the hearing held April 12,1943, at the courtroom in Wyandotte county.
When a group of witnesses, all of whom are interested in the outcome of a case, testify to a certain state of facts it is not unusual to note that they generally agree as to details. The parties who have the burden of convincing the trier of facts that the story told by these people is not a correct one, where he has no direct evidence to the contrary, must rely on what evidence he has that casts doubt on the details of the story told by the interested witnesses.
However, Mr. Bukaty’s testimony was to the effect that the entry in the journal of the court was in Judge Miller’s handwriting, so that point was cleared up. The situation was complicated somewhat by the fact that these pleas were taken during August and there are four deputy clerks of the court, each one of them assigned to a division, and during vacation time they would work for each other — none of them was sure just who was in the courtroom at the time of these pleas. As a matter of fact, Mr. Bukaty was assigned to division No. 3 as deputy clerk while Judge Miller’s division was No. 4. Mr. Bukaty testified that the handwriting in the trial docket page was that of John Skwarlo, who was clerk of the court assigned to division No. 4. All in all, Mr. Bukaty did not throw very much light on the truth or falsity of the testimony of witnesses for the petitioners.
Mr. Palmer testified that he was assistant county attorney at the time of these pleas. He testified that when a prosecution was begun in Wyandotte county it was assigned to one of the assistants and this assistant followed the case through from the time it was started until it ended. He also testified that a file was made in the office of the county attorney of all the papers that had to do with the particular prosecution. Each case had a number which applied only to cases in the county attorney’s office. He testified that certain notations on the jackets of the three cases involving these petitioners were in his handwriting. The entries were as follows:
“D’s arraigned before Judge Pro Tem Allan Farley Div. # 2, waived preliminary — T. P. Palmer 8/5/36 D’s Richard E. Monk & George P. Bradley and each of them present in person, upon arraignment pleads guilty to robbery in the first degree as charged in the information. Sentenced to Kansas Penitentiary for not less than 10 yrs nor more than 21 yrs at, hard labor. Sentence to run concurrently with that in cause # 13322. T. P. Palmer 8/5/36.”
He testified that this entry for case Nos. 13,322 and 13,323 and 13,324 were identical and written upon these jackets in his handwriting and that he must have been in the courtroom when he made these entries, because he never made such an entry unless he was in the courtroom at the time the arraignment was had and the plea entered. This evidence was important for the reason that all of the witnesses for the petitioners testified that no one was in the courtroom at the time these pleas were taken except the judge, the two defendants, the two detectives, Mrs. Bradley, Mrs. Garcelon and a brother of Bradley. This evidence of Palmer, therefore, tended to discredit the story told by the witnesses for petitioners in that respect. This witness also testified that he had an independent recollection of being in the courtroom at the time the sentence in this case was passed, but he would not say he had an independent recollection of what was said as to counsel.
It will be remembered the petitioners and their witnesses testified that they were taken directly to Judge Miller’s courtroom from the jail and the events transpired with reference to a plea about which so much has been said. They testified that they thought they were being taken to have a preliminary rather than to plead. The petitioners and witnesses all denied categorically that they were taken into any court and offered a preliminary hearing or that they waived it. This made the evidence of the judge pro tem of the city court before whom they would ordinarily have been taken to have their preliminary very important. He testified at the hearing in the courtroom at Kansas City, Kan. He was handed the original warrant in these cases. He identified the warrants and identified a notation in his own handwriting as follows:
“Aug. 5, 1936 Defendants Arraigned. Defendants Richard E. Monk & George P. Bradley both plead not guilty, waive preliminary hearing, bond set at S2000.00 each & are bound over to District Court. Allan W. Farley, Judge Pro Tem.”
Judge Farley testified that on account of a relationship he had with one of the detectives which caused him to look with suspicion upon the acts of this detective he took special care to ask any defendant whom this detective brought before him whether or not he desired counsel and that this was always done outside of the hearing and presence of the detective. He testified that he knew that procedure was followed.in the case of these two petitioners because he never made any exceptions. This would be the natural thing to have happened, that is, that these defendants should have waived their preliminary before this judge before they were taken in the district court. It is borne out by the handwriting upon the warrant to which reference has just been made and also by the transcript of the proceedings in the city court, which are on file with the records of each one of these cases. It cannot be doubted that these petitioners did waive their preliminary hearing.
This bit of evidence is important because it contradicts the story of the petitioners and their witnesses that they were not given any preliminary and it also is convincing evidence that they were asked if they had counsel at the time of this arraignment and that they said they did not desire counsel.
In view of this testimony after an examination of these records we have concluded that the petitioners have not proved by a preponderance of the evidence that they asked for counsel and counsel was denied them when they pleaded guilty.
The writ is denied.
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The opinion of the court was delivered by
Thiele, J.;
This appeal involves the construction of the will of Lewis J. Ellertson and the rights thereunder of Johanne Smith, whose name is sometimes shown as Hannah Smith. The controversy arose when the executor of the estate of Hannah Smith filed objections to a petition for final settlement of the estate of Lewis J. Ellertson filed in the probate court. From an adverse judgment the executor appealed to the district court where the matter was submitted on an agreed statement of facts from which the following statement is summarized.
Lewis J. Ellertson died and left a last will and testament, which was duly admitted to probate in the probate court of Logan county, on November 18,1926. By items 1, 2, 3 and 6 of his will the testator provided for the payment of his debts and funeral expenses, made cash bequests to certain named nephews and appointed V. Jaggar as executor. Items 4 and 5 read as follows:
“4. After all of the foregoing charges and bequests have been paid, I direct that the balance of my estate be divided into five equal parts. Of such parts, I give, devise and bequeath one each to my brothers, Martin Mydland, Tobias Larson, Carl Mydland and Maselius Mydland, and one of said parts I give, devise and bequeath to Y. Jaggar of Oakley, Kansas, in trust for my sister Johanne Smith, and her husband, Thomas Smith, on the terms and conditions hereinafter stated.
“It is my will that said trustee shall out of the property left in his care and trust, and out of the income and profits therefrom, pay to my sister, Johanne Smith, and after her death, to her husband, Thomas Smith, if he survive her, the sum of fifty dollars .(S50.00) per month during the natural lives of either or both of said parties; and in the event of sickness of either of said parties or upon the showing by either of them of need for a greater amount, to pay such additional sum as will properly care for and provide for their needs. At the death of the last survivor of the said Johanne Smith and Thomas Smith, all of the balance of said trust fund then remaining shall revert to and become a part of my estate and shall be divided equally, share and share alike, between my said brothers, Martin Mydland, Tobias Larson, Carl Mydland and Maselius Mydland.
“5. Inasmuch as a portion of my estate consists of real property, it is my will that all moneys, securities and personal property be divided, apportioned and paid out as soon after my death as possible, and that my real estate shall be held and managed by my brother, Maselius Mydland, for the benefit of my estate and until such time as in his uncontrolled discretion it can be sold to the best advantage; and upon the sale thereof, the proceeds therefrom shall then be divided and distributed as in the case of my personal property.”
The record discloses that the testator and his beneficiaries named in the quoted paragraph were brothers and sister, were all born in Norway, and upon coming to this country adopted different surnames.
At the time of his death Ellertson was possessed of personal property consisting largely of notes, the amount not being shown, and two half sections of land in Logan county.
Jaggar qualified as executor and filed reports for the years 1927 to 1931, inclusive, which showed that he made the following payments to Hannah Smith: 1927, $600; 1928, $600; 1929, $300; 1930, $600; and 1931, $400. The last report shows that at that time the cash and collectible assets were exhausted. There is no specific showing that Jaggar, as trustee, ever filed any reports or made any accounting. Although not specifically shown, apparently the other residuary legatees received their respective shares of the property thus administered. Jaggar died in 1936 and at that time he had no personal property of the estate in his hands. However, among the assets which he had received was a note for $5,000 secured by a mortgage on real estate and subject to a prior lien. Without going into details, Jaggar had handled this note in such manner that certain real estate in Thomas county was acquired. This .particular real estate was sold and on June 8,1942, Maselius Mydland sent Hannah Smith the sum of $360, which included her share of the real estate in the amount of $199.05 and her share of rents from the Logan county land in the amount of $160.95. After the death of Jaggar nothing was done in the probate court in the Ellertson estate until in February, 1942, when a petition was filed for the appointment of an administrator with the will annexed and on March 2,1942, Maselius Mydland was so appointed and qualified. On a date not shown Maselius Mydland filed a petition for allowance of his final account. At that time he had no personal property of the estate in his possession and the Logan county real estate was all the property remaining belonging to the estate. After the death of Ellertson, Maselius Mydland took charge of the Logan county land. It was unproductive until the crop of 1941. The net proceeds of this crop were divided and Hannah Smith received $160.95 as noted above. The land was disposed of in the manner hereafter stated.
Thomas Smith, named in the will, died March 21, 1935, and Hannah Smith died August 7, 1942, and a temporary administrator was appointed for her estate in Brown county, Kansas. He filed an answer and cross petition in the probate court of Logan county to the petition for final settlement, in which he set up various matters concerning the Ellertson estate, and alleged that under the Ellertson will -Hannah Smith had been paid the sum of $2,510; that there was due her at the rate of $50 per month from the date of the death of Ellertson to the date of her death a balance of $6,915; and that amount should be found due her and declared a lien on a one-fifth interest in the real estate. On September 16, 1942, the probate court rendered judgment, the details of which need not be noted, but the effect of which was to deny to Hannah Smith or the executor of her estate any further interest in the property of the estate. At some date not disclosed Conrad Ross, the temporary administrator of the estate of Hannah Smith, was appointed as executor of her last will, and as such he appealed to the district court, but before the matter was heard there, by agreement of all parties Maselius Mydland sold the Logan county real estate and now holds one-fifth part of the net proceeds of the sale for distribution on final disposition of the cause.
In deciding the cause the district court prepared a written opinion, which is included in the journal entry of judgment and hereafter referred to, and in accordance therewith rendered judgment that Conrad Ross, executor of the will and testament of Hannah Smith, take nothing from the proceeds of the real estate involved. His motion for a new trial being denied, he appealed to this court, specifying as error the refusal of the district court to impress a lien upon the proceeds of the Logan county real estate, the rendering of judgment against him, and the denial of his motion for a new trial.
Whether the judgment of the district court was correct or not depends primarily on the construction placed on items 4 and 5 of the will of Lewis J. Ellertson. ’ As expressed in the written opinion the learned trial court said:
“The Court is of the opinion that the deceased Lewis J. Ellertson intended to and did by the provisions of his will give to the said Johanne Smith the income from one-fifth O/s) of his estate, after paying certain legacies. He says in the second paragraph of the fourth division of the will:
“ 'It is my will that said trustee shall out of the property left in his care and trust, and out of the income and profits therefrom, pay to my sister, Johanne Smith, . .
Summarizing, the opinion continues that the only property left in the care and trust of the trustee was personal property; that the real estate was to be held and managed by another brother, Maselius, as provided in jtem 6, and while any income that might be derived in the way of rents and profits from the real estate would go to the trustee,-the fee title to this property was never vested in the trustee to the extent it could be considered as propery left in his care and trust and it was clear the title to the real estate never vested in Johanne Smith. The court further stated that with respect to the real property of Ellertson, the position of Johanne Smith was quite analogous to what her situation would have been if she had been left a life estate in one-fifth of said property with a power of disposal; that there was nothing in the record to show that Johanne Smith, in her lifetime, took any steps to require any payments due to her under the will be made, that she simply took and received such payments as were made by the trustee and when the personal property was exhausted and there was no income she received no payments. The trial court stated further that since it was of the opinion there was no vested interest in Johanne Smith, she had no right to dispose by will of any interest she had in the property during her lifetime, and that the court “having reached the conclusion that it was, the intention of the deceased Lewis J. Ellertson to give to his sister only the sum of fifty dollars ($50) a month out of the income and profits from the property left in the care and trust of the trustees, or such additional sums as might be needed” by her, there remained nothing further in the case except to find that the executor of her estate take nothing from the proceeds of the sale of real estate here involved.
In approaching any problem of construction of a will certain definite rules are to be borne in mind.
There is no occasion for employing any rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P. 2d 269). The will is to be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the purposes of the testator as gathered from the entire will, and to effectuate rather than defeat the intention of the testator. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708.) Controlling significance is not to be given to one of the terms of devise or bequest and other terms ignored. (Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569.) The court must put itself as nearly as possible in the situation of the testator at the time he made the will and from a consideration thereof and the language used in every part of the will, determine the purposes and intentions of the testator (Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307). All of the above rules are only phases of the fundamental rule that the intention of the testator is to be gathered from the will as a whole and that intention must prevail if it is consistent with the rules of law (Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177). The above cases are illustrative. Many others of like effect might be cited. It is also to be borne in mind that a will speaks from the time of the testator’s death, unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing. (69 C. J. 126; 28 R. C. L. 234; see, also, G. S. 1941 Supp. 59-613 as bearing thereon.)
It will be observed the district court was of the opinion that Ellertson intended to and gave Johanne Smith income from one-fifth of his estate and then only as to that portion which was left in the care and custody of Jaggar the trustee; that income from the real estate would go to Jaggar, but he had no title to the real estate to the extent it could be considered property left in his care and trust and it was the intention of Ellertson to give Johanne Smith $50 per month out of the income. With that conclusion we cannot agree. We observe that the theory of the decision of the trial court varies from that adopted by the trustee Jaggar, for he did not limit the payments made by him to Johanne Smith to income or profits. He distributed the corpus of the estate until he had disbursed all that had been reduced to cash, and at his death there remained only some unliquidated personal assets and the real estate which had not been sold. We also observe that under the theory of construction adopted by the trial court, had the land been sold immediately after the death of Ellertson, Johanne Smith would not have been entitled to any part of the proceeds of the sale, for such proceeds would not have been income or profits of the real estate, nor would they have been a part of the personal property left in the care of Jaggar.
Deferring for the time being any question of the interest of the beneficiary, Johanne Smith, in the trust created for her, we survey the will. The provisions for payments of debts and funeral expenses and for money bequests to certain nephews are too clear for dispute and there is none. By paragraph 1 of item 4, the testator provides that after payment of those charges and bequests, “the balance of my estate” shall be divided into five equal parts, one each to four-named brothers and one to Jaggar in trust for the sister Johanne. It will be noticed that up to this point the testator had made no distinction between his real and personal estate or the extent of the interest of the trustee therein. Passing for the moment the second paragraph of item 4, which deals with the trust, we note item 5. In it the testator directs that his personal property shall be divided, apportioned and paid out as soon as possible after his death, but as to his real estate he provides that it shall be held, managed and sold by his brother Maselius and the proceeds divided and distributed as in the case of his personal property. Possibly there may be room for an argument that this item created a trust in Maselius but whether it did or not it is clear that upon a sale being made the proceeds were to be divided as theretofore provided, which was that one-fifth was to go to each of the four brothers and one-fifth to Jaggar as trustee. We are of opinion that under item 5 the testator intended to convert his real estate into cash and have that cash divided, and did not intend to give undivided interests in real estate. As a practical matter that is the interpretation which all the parties in interest have placed on item 5. If that interpretation be correct, and we think it is, then under the will there was an equitable conversion and. what passed to the legatees under paragraph 1 of item 4 included the proceeds of the real estate when sold and was personal property. If a contrary view wrere to be taken, and taking the will as a whole it cannot be, then the interest of the trustee in the real estate or the proceeds thereof was not a part of the property out of "which the beneficiary was to be paid, and she was as effectually cut off from the real estate or the proceeds as though the testator had given it directly to his brothers. We think it must be said the intention of the testator was to give to his trustee one-fifth of all of his property remaining after payment of his debts and legacies, of wdiatever nature and without exception, save as to the time and manner in which the real estate was to be sold and converted into money.
The above observations are a premise for determining the intention of the testator with respect to the benefits which he conferred on his sister Johanne. We first examine the will to determine the nature and character of the gift to her and then its extent. There is no doubt but that a testator may make a will in which he creates a trust only the income of which is to be paid to his beneficiary, or creates a trust under which stipulated amounts are to be paid periodically to the beneficiary out of income and corpus of the trust estate. In the latter case the legacy is said to be of an annuity, which is defined as a fixed sum payable periodically, chargeable upon the property of the donor, the distinction between “income” and “annuity” being that income means profits to be earned, the amount of which is not fixed or certain but contingent on the amount of earnings, while an annuity is a fixed amount directed to be paid absolutely and without contingency. (See 3 C. J. S. 1373, 1374; 2 Am. Jur. 819; and 3 Page on Wills, Lifetime ed., §§ 1172,1173.)
In many cases which have reached the courts there has been controversy whether the will gave only a gift of income payable solely out of earnings, or was so worded as to permit encroachment on the principal, or was a gift of an annuity. The final disposition of these cases shows rather generally that whether the gift was of income either limited or chargeable on corpus, or of an annuity, depended on the language used by the testator. Many of these cases are accumulated in the annotation in 136 A. L. R. 69, to which reference is made.
Because of the prior death of Thomas, husband of Johanne Smith, we may ignore reference to him, and for the reason Johanne is now dead and no extra or additional payments ■ were made to her no reference need be made thereto. For our purposes the second paragraph of item 4 may be read as follows: •
“Said trustee shall out of the property left in his care and trust, and out of the income and profits therefrom, pay to my sister Johanne Smith, . . . the sum of Fifty Dollars (850.00) per month during [her natural lifetime]. At the death ... of the said Johanne Smith ... all of the balance of said trust fund then remaining shall revert to and become a part of my estate and shall be divided equally . . . between my said brothers. . . .”
It will be noted that the testator did not say that out of the income and profits of the property left in his care and trust the truste'e should pay the monthly payments. On the contrary, the testator said that out of the property left in his care and trust and out of the income and profits therefrom the trustee should make the payments. Not only by the arrangement of his language and by the use of the conjunction “and” did the testator indicate an intention the corpus of the trust was to be paid out of his entire estate left in trust for her at the rate of $50 per month, but by later language he provided that if at the time of her death the trust fund was not exhausted the balance then remaining was to be paid equally to the four brothers. To state thedegal conclusion he gave her an annuity.
If we were in doubt as to the above, further consideration would show that the will made no disposition of the corpus of the trust fund after the death of Johanne. On the contrary it provided that on the death of the survivor of Johanne or her husband “all of the balance of said trust fund then remaining” should go to his brothers. Under many decisions this is a clear indication the testator intended the annuity should be paid out of the corpus of the fund if the income was not sufficient. See the cases collected in 109 A. L. R. 717 et seq.
Appellant directs our attention to First Trust Co. v. Varney, 142 Kan. 93, 45 P. 2d 582, as being decisive of the case at bar. That appeal involved the right of a legatee given a stipulated monthly payment during his lifetime to have the same paid out of the trust fund when the income was not sufficient for that purpose. It did not involve any question pertaining to the right of the executor of a deceased beneficiary to recover matured but unpaid installments. In that case the will provided for the reduction of the estate to cash, for the investment thereof and for the disposal of the net income therefrom. We need not repeat fully the facts of that case nor the application of the law thereto but in substance, we construed the will and held that it was the intention of the trustee to give to Varney a stipulated amount per month and that the same should be paid from the corpus of the trust fund when the income was insufficient for that purpose. That case is persuasive of the correctness of the contention of the appellant here, but it is to be noted that in the present case the will does not limit the payment to income.
It was the privilege and right of the testator to provide the extent of his bounty to his sister and the manner in which it was to be paid to her, and that he did, and we are only concerned in determining from what he said what he intended for her, and not whether she did or did not need the money, nor what she might do with her property after her death. When Ellertson made the will he did not know how long his sister might live, nor what her future situation would be. He evidently wanted to assure her of some income.
As we read the will there is an utter absence of any language indicating that if monthly payments accrued and were not paid, because some of the property was not converted into money, or the then collected income was not sufficient, that there was then no further obligation to her. So long as the trust fund was not entirely expended and thus exhausted, as each payment accrued it was due her — she had a vested interest in it. (See 69 C. J. 615.) Her death prior to the payment of accrued monthly payments to her did not cut off her right to them. It is quite clear to us that the testator intended not only that she should have the stipulated $50 per month in any event, but by reason of the provision as to the sickness or need not included in our last summary but to be found in the entire provision as quoted above, that the trustee might pay her additional moneys. As we view the matter the trial court put undue weight on the phrase “and out of the income and profits therefrom” in concluding that Ellertson intended to give his sister “the income from one-fifth of his estate.” We think a correct construction of the will was that Ellertson gave a one-fifth interest in the residue of his entire estate to his trustee Jaggar, for the benefit of his sister Johanne, payable in the manner stated, and if the corpus of the trust estate was not exhausted at the time of her death the balance remaining was to be paid to his four brothers.
We think that in view of the language which the testator used in his will as a whole and in view of the significant fact that he did not use any language indicating a contrary intent, it must be held the testator intended the trustee pay the entire trust fund whether principal or income to Johanne at the rate of $50 per month, or more if he concluded she needed it, and the right to the monthly payments became absolute as they severally matured.
In a sense it is repetition to say that'we think that the testator intended his real estate should be reduced to cash and divided as such. He did provide it should not be sold until his brother Maselius in his uncontrolled discretion so decided, but we cannot and do not construe that to mean that Maselius was to hold it indefinitely with the effect that until it was sold and reduced to cash that his sister Johanne had no interest in the potential proceeds and the monthly installments after the other trust estate was exhausted were abated. We cannot construe the will in any manner that would make it profitable to Maselius to delay sale so that to reduce the amount Johanne would receive with a consistent enlargement of his share. Although there might be instances where a beneficiary or one entitled to an annuity might waive his or her right thereto or might under circumstances be barred by the statutes of limitation, none such exist here. Johanne received payments from Maselius, who seems to have succeeded Jaggar as her trustee, although that is not definitely shown, on June 8,1942, and she died August 7 of the same year. Her temporary administrator and later executor promptly asserted her rights when it was sought to settle the Ellertson estate and deprive her of the installments of annuity which accrued during her lifetime but were not paid to her.
The record discloses that the share of the proceeds of the real estate sold, and it was the last remaining asset of the Ellertson estate, was less than the accrued unpaid installments due her. Had she survived there is no doubt she personally would have participated when the Ellertson estate was settled and there is no contention to the contrary. We are of the opinion her right to the matured but unpaid installments was a property right which passed to her executor and that he could properly assert the claim.
The judgment of the district court is reversed and the cause remanded with instructions to impress a lien on the one-fifth share of the proceeds of the real estate involved to the extent of the annuity payments which accrued to Johanne Smith during her lifetime but which were not paid to her.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the defendant from a judgment of sentence imposed in a manslaughter case. The single error urged is the sentence was excessive and we are asked to set it aside. The question presented turns upon whether appellant can be heard to contend now, as a matter of law. that she was improperly sentenced on three counts instead of one.
The defendant, Mrs. Cecil Carte, whose real name is Katherine Carte, was charged in an information under three separate and distinct counts of manslaughter in the fourth degree pursuant to G. S. 1935, 21-420 of our crimes act, which provides:
“Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.”
Three persons were killed instantly as a result of a collision between appellant’s car and the car occupied by the deceased. The counts were framed in identical language except as to the names of the persons killed. In other words, the theory of the prosecution plainly was that three separate and distinct offenses had been committed by the act, procurement or culpable negligence of appellant. On the charges thus contained in the information appellant went to trial. She filed no motion to quash any count on the theory of duplicity or for any other reason. She did not object to the introduction of evidence on any count.
A stipulation entered into by the parties and filed in this court discloses: The state introduced its evidence on all three counts and rested; thereafter appellant entered a plea of guilty on each of the three separate counts and was sentenced on each of the three counts, the judgment being that the three sentences were to run consecutively ; both before and after her plea of guilty on the three separate and distinct counts, her counsel contended:
Only one offense had been committed; the plea of guilty on the first count barred prosecution on the second and third counts, being second jeopardy for the same offense; the second and third pleas were wrongful because she had been wrongfully charged on those counts.
With that contention the trial court did not agree, but after the sentence had been executed the court took a different view of the matter. The later action of the trial court is reflected in a former opinion of this court which involved an appeal by the state from the subsequent judgment of the trial court. (State v. Carte, ante, p. 139, 138 P. 2d 429.)
The instant appeal, as previously stated, was taken by defendant from the judgment and sentence pronounced on her plea of guilty to the three- separate and distinct offenses charged. The record in the former appeal disclosed her contention that only one offense had been committed was made after her plea of guilty. In the instant appeal it is stipulated the contention was made both before and after her plea of guilty. There were two journal entries but neither of them discloses such contention was made at any time. The practice of parties stipulating concerning matters which do not appear in journal entries without disclosing a proper and unsuccessful attempt to have the desired facts embodied in the journals cannot be approved. It is unfair to a trial court and in other respects is not conducive to the orderly administration of justice. We have seldom encountered evidence of such a practice but if it is continued we shall be required to deal more drastically with the subject. We shall pass the matter without further comment in this case but we do so only by reason of the conclusion we are obliged to reach on the merits of the appeal irrespective of the discrepancy in the record. It is not our intention to intimate counsel for the parties in this case have untruthfully stipulated concerning the actual facts in the case. Our condemnation pertains to a practice which this court cannot countenance.
Assuming the contention of former jeopardy was also advanced, as stipulated, namely, after the state had rested its case but before appellant entered her plea of guilty on each count, that fact does not aid her position. On the contrary, it clearly discloses that although she had made the contention before entering her plea on each count, such contention, for all practical purposes, was effectually abandoned when she thereafter entered her plea of guilty to the three offenses as charged. (People v. Strickler, 167 Cal. 627, 140 Pac. 270; see, also, 22 C. J. S., Criminal Law, §277.)
The question presented is, assuming appellant is correct in her contention that the second and third counts constituted charges of the same offense contained in count one, did she waive the defense of former jeopardy? That a person may be tried and convicted more than once for the commission of the same identical offense unless he exercises his constitutional right and privilege to object to being twice put in jeopardy for the same offense is, of course, well established. (State v. White, 71 Kan. 356, 80 Pac. 589; State v. Ford, 117 Kan. 735, 232 Pac. 1023; State v. Maxwell, 151 Kan. 951, 962, 102 P. 2d 109, 128 A. L. R. 1315; State v. Carte, ante, p. 139, 144, 138 P. 2d 429.)
In the Maxwell case the defendant had been discharged in a former trial as to a certain count which alleged the unlawful uttering of a check. The same identical count again appeared in the amended information filed before the second trial. In the course of the second trial the state introduced its evidence on that count without defendant objecting thereto. It was there said:
“The immunity from second jeopardy granted by the constitution to one accused of crime is a personal privilege which may be waived and which appellant did waive in the instant case.” (p. 962.)
' So in this case appellant could be tried and convicted repeatedly on the identical offense charged in the first count, or on any other separate count, if she did not avail herself of her constitutional right and privilege to enter a timely and appropriate plea of former jeopardy. Appellant contends the second and third counts constituted the same offense as that charged in the first count. It follows, if appellant is correct in her contention that only one offense was committed, she clearly did not avail herself of her right to assert the plea of former jeopardy when the information was filed. She did not do so when the state undertook to establish her guilt on the second and third counts. After the state had rested its case appellant pleaded guilty to each of the offenses charged in the respective counts. She claims she also raised the claim of double jeopardy after her plea of guilty on each of the three counts. It is, however, admitted she filed no motion to withdraw her plea of guilty on counts two and three. Furthermore, both the.journal entry of judgment and a later nunc fro tunc journal entry disclose that after her plea of guilty to each of the three offenses charged and before sentence was finally pronounced thereon, appellant was expressly informed by the court that she had been charged with three counts of manslaughter in the fourth degree and that the court inquired whether she had any legal cause to show why judgment of sentence should not be pronounced against her and that she failed to assert any cause whatsoever. The stipulation is not to the contrary.
In accordance with her plea of guilty to each of the three offenses charged, appellant was sentenced. The sentences were made to run consecutively. In view of these circumstances we have no hesitancy in concluding appellant waived the defense of former jeopardy, assuming she actually had such a defense.
It is always well to bear in mind the clear distinction between the subjects of sentence and former jeopardy. Judgment of sentence can be pronounced only after a person has been put on trial and after he has been convicted of, or has pleaded guilty to, the offense or offenses charged. Section 10 of our bill of rights, insofar as pertinent here, provides:
“No person shall be twice put in jeopardy for the same offense.” (Emphasis supplied.)
It will be observed the protection afforded by this provision is not against the peril of second sentence or punishment but against being put on trial again for the same offense. (The People v. Allen, 368 Ill. 368, 383, 14 N. E. 2d 397.) Having waived the defense of former jeopardy, assuming she had such a defense, sentence was properly imposed on the plea of guilty to each offense charged and the sentence cannot be set aside now.
Appellant finally contends the court did not have jurisdiction to render the judgment of sentence it rendered. The contention is not good. The court had jurisdiction of the parties and the subject matter. Its jurisdiction did not depend upon whether it rendered a right or wrong judgment.
In view of what has been said it follows the judgment of sentence must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This action was brought to foreclose a real-estate mortgage to which there is no defense attempted, and there is no conflict in the evidence. For the purpose of having it adjudicated that upon the death of her husband the appellant, Susanna Fletcher, became vested with full legal title to the mortgaged premises by the terms of the will, she filed an answer and cross-petition wherein she alleged full title in herself to the mortgaged property, and attached thereto a copy of the will of her deceased husband, who at the time of his death was the owner thereof, and also a copy of the accompanying contract. The will and contract read as follow:
“I Michael Fletcher of Wetmore, being- of sound mind, recognizing the uncertainty of human life, do make publish and declare this my last will and testament, in manner following to wit: subject to the payment of my just debts, the expenses of my last illness and my funeral expenses. I give and devise all my property both real and personal to my beloved wife, Susanna, imposing upon her the obligation to use such property as may to her seem best for her comfort and advantage and after my decease to provide by will or. otherwise for the transmission of the rest residue and remainder of my estate at her decease in equal shares to my daughter by my former wife Ann Streeter and my son Daniel Fletcher, and their issue for ever.
“In testimony whereof I have hereunto set my hand in the presence of my attesting witnesses this 28th day of December, 1899. Michael Fletcher.
“Signed published and declared to be his last will and testament by the testator in our presence, who at his request in his presence and the presence of each other have hereunto signed our names as witnesses thereto. Michael Worthy.
M. De Forest.
“And I Susanna Fletcher wife of Michael Fletcher in accepting the bequest and devise in fee of the entire estate of my said husband do hereby agree to pass the title of all property both real and personal that may remain at my decease in accordance with the expressed wish of my husband.
“Witness my hand this 28th day of December, 1899.
Susanna Fletcher.
“Executed and declared to be her free act and deed in our presence who at her request have signed our names as witnesses hereto. Michael Fletcher.
M. De Forest.”
Susanna Fetcher and Ann Streeter were made parties defendant in the petition but Daniel Fletcher was not. Ann Streeter filed no answer to the petition or cross-petition, and Susanna Fletcher alleged that she derived title to the land by the will of her deceased husband.
The relief prayed for in Mrs. Fletcher’s cross-petition is that Ann Streeter be required to plead what interest, if any, she has in the mortgaged property, or in any property which the testator owned at the time of his demise.
Defendant Ann Streeter was in default and no counsel appeared for her, but the court announced that in construing the will it would protect her interest, but no error is claiméd in this; in fact, no assignment of error is formally made in appellant’s abstract or brief.
As construed by the court, the will gave to appellant a life estate in the property of the testator and to Ann Streeter an undivided one-half interest in the remainder. The appellant contends that this is erroneous, and.that by the will she was devised the title in fee to the entire estate. This seems to be in accordance with the reading of the will, “I give and devise all my property, both real and personal to my beloved wife,Susanna, imposing upon her the obligation . . . after my decease to provide by will or otherwise for the transmission,” etc.
If the testator understood that by the will he was devising a remainder, he could not reasonably impose upon his wife the obligation of transmitting such remander by will or otherwise.
On the day that the will was executed another instrument was executed, attested by two witnesses, one of whom was Michael Fletcher, apparently the testator. The will and contract are together set forth in the abstract as “Exhibit A,” and were probably executed at about the same time. The latter instrument purports to construe the will as “the bequest and devise in fee of the entire estate of my said husband” to Susanna Fletcher.
There is no suggestion that the testator was in ex-tremis or was not in condition to fully understand the purport of both instruments, and the presumption is that he was competent to execute the will. If he made his will intelligently he probably understood the accompanying document. The ambiguity in the will, if any there be, arises principally from the use of the words “to use,” “residue,” and “remainder” therein. No words expressly conferring power to sell or convey are used. On the other hand, if the words “I give and devise all my property” are to be given their usual significance there can be no residue or remainder.
The supreme test in the construction of a will, however, is to determine the actual intent of the testator. His purpose, if ascertainable, is conclusive. Reading the will and the contract together, as the testator presumably did, we are unable to say that the testator intended to devise any residue or remainder to his son or daughter, but rather that he devised his entire estate to appellant and relied upon her to transmit to his children equally, at her death or before that event, whatever might remain. (See Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; McNutt v. McComb, 61 Kan. 25, 58 Pac. 945; Holt v. Wilson, 82 Kan. 268, 108 Pac. 87.)
In the latter case it was said:
“Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by subsequent vague or doubtful expressions.” (Syl. ¶ 1.)
The daughter was made a party, but made no appearance or any claim of right in the trial court or here. Possibly with the advice of counsel she construed the will as did the appellant. Her age is not given, but the will shows she was the testator’s child by a former wife. There is no presumption that she was not competent to protect her own interests.
The usual rule is, where a defendant enters no appearance and makes no defense after being summoned, that the allegations of the petition are taken as true and judgment rendered accordingly. No evidence seems to have been produced.
The court seems to have considered the case as on demurrer to the cross-petition and rendered judgment against the cross-petitioner and in favor of the non-appearing defendant. We think the will conveyed the estate in fee to Mrs. Fletcher and that the cross-petition stated a cause of action in her favor.
The judgment is reversed and judgment is ordered in favor of the cross-petitioner on the pleadings.
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Per Curiam:
The claimed verbal warranty was not submitted to the jury as a basis for recovery. Consideration of this so-called warranty was permitted only as furnishing the occasion for the claimed rescission. If the contract were rescinded, as the defendant claimed, then the plaintiff could not recover. The question of rescission was properly submitted to the'jury as the sole defense to the action. This question was one of fact, and the verdict, which included a finding that the contract was rescinded, is abundantly sustained by the evidence.
There is nothing else in the case, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Benson, J.:
A question of practice only is presented. The plaintiff, Chambers, commenced an action by publication service against the defendant, Bane, a nonresident of Kansas, upon a judgment of a federal circuit court. H. F. Mott, an alleged debtor of the defendant, was personally summoned as garnishee. The garnishee answered denying that he was indebted to the defendant. The plaintiff thereupon served notice upon the garnishee that he elected to take issue upon the answer. Afterwards the defendant, Bane, upon special appearance moved to set aside the service by publication on the grounds that the court had no jurisdiction of the subject matter or person of the defendant and that there was no property of or debts owing to the defendant in Marion county. ■ The plaintiff objected to any hearing upon the motion because the issue between himself and the garnishee wherein the question of indebtedness should be tried was pending and undetermined, and for other reasons which need not be considered. The court overruled the objections and heard the motion, upon evidence relating to proceedings in foreclosure suits in Butler county, wherein Bane recovered judgments against Mott for about , $4600, and an order for the sale of the mortgaged property to satisfy the amount. Other evidence was allowed tending to show a sale of the mortgaged property and an assignment of the judgments by Bane to the purchaser.. The assignment was used, at it appears, in partial satisfaction of the purchaser’s bid made at the sheriff’s sale.
The proceedings in the suits in Butler county were not completed when this hearing took place, and confirmation of the sale and distribution of the funds were stayed until the proceedings in this action should be determined. Upon this and other evidence relating to the proceedings in the Butler county suits, the district court found that there was no debt due from the garnishee to the defendant, and thereupon set aside the service. Afterwards the court dismissed the action.
All the proceedings incident to the service by publication, as well as the proceedings against the garnishee, are conceded to be regular, but the defendant contends that the eourt was without jurisdiction because the garnishee was not indebted to the defendant, and therefore there was nothing to support the constructive service. On the other hand, the plaintiff insists that the question whether the garnishee was indebted to the defendant was at issue between the plaintiff and the garnishee as the, statute directs, and that this issue could not be forestalled upon a motion to set aside the service.
The statute authorizing proceedings against garnishees provides that where a garnishee denies the indebtedness alleged in the plaintiff’s affidavit, the plaintiff may take issue upon the answer, which issue shall stand for trial as a civil action. The trial of this issue is between the plaintiff and the garnishee, wherein the affidavit of the plaintiff upon which the garnishment is founded is deemed the petition and the garnishee’s affidavit of nonliability the answer thereto. (Civ. Code, §§ 228-248.) The rights given by the statute are substantial, and a plaintiff is entitled to the remedies which it prescribes. The question of indebtedness upon which his right to hold the garnishee liable depends should be determined in the trial provided by the statute, and not upon a motion between the parties to the principal action. It should be observed that section 238 of the statute referred to in express terms provides that a defendant in such an action may intervene and defend in the proceedings against the garnishee upon any ground available to the garnishee. If there was any sufficient reason why the defendant should seek to prove that the garnishee was not in fact indebted to him, this section afforded the opportunity where the issue could be tried in the regular way.
Section 239 of the code provides that there shall be no trial of the issue with the garnishee until the plaintiff shall have judgment in the main action. It appears that the defendant failed to answer, and judgment should have been rendered, as requested, upon default. If upon the trial of the issue with the garnishee his liability should not be established, the main action will fail.
There is considerable discussion in the briefs concerning the fact of the alleged indebtedness of the garnishee. This question can not be considered. It must-be tried as the statute provides.
The order setting aside the service and the judgment dismissing the action are reversed, and the cause is remanded for further proceedings.
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. The opinion of the court was delivered by
JOHNSTON, C. J.:
In this action begun by the appellant, John G. Chilson, to set aside the will of his wife, Cynthia A. Chilson, the question involved is, Can a consent given by him in pursuance of the statute that his wife may will from him more than one-half of her property be revoked? The case was submitted on an agreed statement of facts which shows that the appellant was sixty-three years of age and Cynthia A. Chilson sixty-four years of age at the time of their marriage on March 1, 1903. Mrs. Chilson was the owner of some property -which came to her from a former marriage. No children were born to them of their marriage, but from a former marriage each had living adult children. On March 30, 1911, and when at the age of seventy-two years, Cynthia-A. Chilson executed her last will and testament, leaving all her property to her own children and grandchildren. This was done with the written consent of her husband, which he executed in the presence of two witnesses on March 30, 1911. In a letter written on May 1, 1911, and delivered the following day, to his wife, Chilson undertook to revoke the consent previously given. It appears that appellant had no property of substantial value at the time of his marriage with Cynthia A. Chilson, that he received a pension of $12 a month from the government, which was later increased to $15 a month, that he cared for the property of Cynthia A. Chilson so much as his impaired health would permit, and that his pension together with his other earnings were contributed towards the support of himself and wife. No change in the property rights of either party was made after the will and consent were executed, nor was any change made in the will of Mrs. Chilson before her death, which occurred on October 6, 1912. At that time she was possessed of property of the approximate value of $2953. On the trial the court, on the pleadings and agreed facts, decided in favor of the appellees, holding that the consent given by appellant was still binding upon him. He appeals, and contends that his consent to the will was effectually revoked by his letter of May 1, 1911, and that he is therefore entitled to one-half of the property of Cynthia A. Chilson.
The right to take property either by devise or descent is derived solely from the state and is wholly within the control of the legislature. The husband can only receive a share of a deceased wife’s estate or the wife of a deceased husband’s estate either by will or inheritance where the statute of the state authorizes it, and then only in the measure and according to the rules which the statute prescribes. (Hannon v. Taylor, 57 Kan. 1, 45 Pac. 51; The State, ex rel., v. Cline, ante, p. 416, and cases cited.)
The statute provides that the wife may take one-half of her deceased husband’s estate and the husband may take the same share of his deceased wife’s estate, and it is further enacted that:
“No man while married shall bequeath away from .his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” (Gen. Stat. 1909, § 9811.)
This section not only authorizes the giving of consent but specifically provides the form and manner in which it shall be given. There is no requirement that it shall be attached to or be regarded as a part of the will and it is not necessary that it shall designate, the will to which it applies. (Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541.) It is enough that a writing freely, fairly and legally made shall express the consent of' the husband or wife that the other may bequeath or devise more than one-half of his or her property away from the one consenting. The one to whom it is given is then at liberty to give the share so legally surrendered to whomsoever he may will. It is not necessary that: the one consenting shall be given property by the will, of the other nor that there shall be any consideration, for the consent. (Hanson v. Hanson, 81 Kan. 305, 308, 105 Pac. 444.) When such written consent is made in accordance with, the statute and delivered to the other-spouse it is a binding disposition of a property right: unless some statutory authority can be found for revoking or setting it aside. Although definite provisions have been made for executing this consent, none can be found providing for revoking it. Careful provisions have been made for revoking wills, and it is a fair inference that if it had been the legislative intent that a formal written consent could be revoked provisions would have been made for that purpose as to the time and manner in which it could be done. If the statutory written consent can be set -aside at the option of the maker, as contended by appellant, then it would seem that a mere oral revocation would be effective, and it would be well nigh impossible to meet a fraudulent claim of a surviving spouse that a withdrawal of consent had been orally .made. The question of the right of the consenting party to revoke his consent in a case like this has not been directly considered, but it was held in Keeler v. Lauer, supra, where the husband after the death of his wife undertook to nullify a consent previously given, that it was not then within his power to revoke it. In deciding the case it was said:
“With this consent Mrs. Heilbrun had a complete right to dispose of all her property by will.” (73 Kan. 396.)
In the absence of statutory authority to do so there is no more warrant for revoking such a consent before than after the death of a spouse. It has also been determined that a consent can not be repudiated or set aside because of a subsequent discovery that the estate is larger than the consenting party had supposed, she having been fully informed as to her rights and having given her unconstrained consent. (Pirtle v. Pirtle, 84 Kan. 782, 115 Pac. 543.) Of course, a written consent, like other instruments, will not be' valid if it is obtained by deception, undue influence or fraud of any kind. (Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608.) It is argued that as a will may be revoked at the option of the maker a consent to the making of that will should be equally open to revocation, at least until the will became operative. The consent, as we have seen, is no part of the will, and, being a creature of the statute, can not be annulled or recalled unless provision to do so is made by statute. As it is an independent provision of statute the common-law rules as to marital agreements and relations or as to the mutual wills of husband and wife are not applicable, neither can any aid to the interpretation of our statute be derived from the decisions of the courts of other states upon statutes not like ours. The legislatures of Massachusetts and Colorado enacted laws of similar purport, but no interpretation of the provision in question by the courts of either , state has been brought to our attention. The consent provided for is akin to the provision that a widow may elect to take under the law instead of under the will of her husband. (Gen. Stat. 1909, § 9818.) In Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444, it was held that where the wife had- consented that her husband might dispose of all his property as if unmarried it was not necessary for her, if called upon after his death, to make an election under the provision giving her that right. The election, like the consent, is provided for by statute and no authority is given by statute to recall or revoke such election. It is held that an election freely and intelligently made is a finality which effectually concludes • and estops the widow from setting aside her decision or reclaiming the relinquished right. (Buchanan v. Gibbs, 26 Kan. 277; Reville v. Dubach, 60 Kan. 572, 57 Pac. 522; Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534.).
It appears that the consent of appellant was formally, freely and intelligently given after he had read the written relinquishment as well as the proposed wiM and had thus learned the disposition which his wife intended .to. make of her property in pursuance, of .his consent. The consent was made, in strict compliance with the law, and there is no claim-that there was over- persuasion, misrepresentation or fraud practiced in procuring it. No legal ground for setting aside the consent has been suggested. The judgment of the district court will, therefore, be affirmed.
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Per Curiam:
There was abundant evidence to warrant the conclusion that no oral contract on the part of Samuel D. Shields to convey the land in controversy to his niece and her husband, in consideration of personal and other services to be performed, ever existed. The case differs from the Anderson case (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743), and those which have followed it, in that satisfactory proof of a contract was not produced. The trial court so found and the finding is conclusive against the prayer for specific performance.
The pleadings .and the proof were that the claimants were tenants of the land, bound to the payment of rent, but that they were at liberty to install such improvements as they desired. The improvements which they did make were not such as to compel a court of equity to cause the land to go with them, and the equitable rights of the plaintiffs in that regard were satisfied by the judgment in their favor for the value of the improvements.
There was substantial evidence that the plaintiffs kept an account of and charged Shields for his board. If this were not true, equity would scarcely deprive a landowner of his land, worth many thousands of dollars, because he boarded a few years with his tenants. Any claim for board and any claim for other valuable services performed should have been presented to the probate court for allowance in the usual way.
It is not necessary that the court should enter upon an extended discussion of the evidence. It is satisfied that substantial justice has been done, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Benson, J.:
The sole question upon this appeal is whether an inheritance tax law of this state is valid.
The statute was enacted in the year 1909, being chapter 248 of the Laws of 1909 (Gen. Stat. 1909, §§9265-9291). Although repealed at the legislative session of 1913 (Laws 1913, ch. 330), it nevertheless governs the controversy.
The constitutionality of the law is challenged on two grounds: First, that it violates section 2 of the bill of rights, declaring that free governments are instituted for the equal protection and benefit of the people; and second, that it does not have uniform operation throughout the state, as required by section 17 of article 2 of the constitution. Incidentally section 1 of article 11, requiring a uniform rate of taxation, will also be considered.
The statute in terms provides that all property not covered by certain specified exemptions, which passes by will, intestate succession or gift, or by grant or deed in contemplation of death to take effect in possession after death, shall be subject to a tax. The rates of taxation are graduated according to a classification of persons who receive the property, and progressive in rates according to the amount received. In these respects our statute follows the general scheme of the statutes in other states upon this subject, and follows closely the Massachusetts law. The following table, prepared by the state tax commission for the informa tion of local .officers, shows the practical operation- of the statute:
N0TBS.
1. As to Class A, the law does not become operative until the legacy or succession exceeds $5000, when the legatee, devisee or beneficiary is the husband, wife, father, mother, child or adopted child of the deceased.
2. As to Class B, the law does not become operativé untii the legacy or succession exceeds $1000.
3. As to all persons not included in the exceptions stated in Note 1 and Note 2 above, the law becomes operative as to all legacies and successions, no matter how small.
Inheritance tax laws have long been- in force in England and in the countries of continental Europe, and for a considerable time in many states of this Union. In a note in 41 Am. St. Rep. 580, it is said:
“Taxes upon legacies and inheritances have been approved generally by writers upon political economy, and systems of taxation, and no tax can be less burdensome, and interfere less with the productive and industrial agencies of society.”
The learned annotator cites many adjudicated cases supporting these propositions. It is not necessary to quote from the multitude of opinions for they speak with substantial uniformity in sustaining such taxation, which began in this country in Pennsylvania in-the year 1826, and has been gradually adopted in other states until, at the National Conference on Taxation in the year 1911, it was shown that this means of revenue’, had been provided by statute in thirty-eight states., (State and Local Taxation, Fifth National Conference,. 1911, p. 307.) ’• ,
While our statute, like many others, refers to tthe> succession or transfer as property -subject to the tax;there is practical uniformity in the decisions in states • having statutes containing similar phraseology that this is not a property tax, but a tax upon the right of succession; upon the right to receive, and not upon the property, nor upon the right of disposal. (Scholey v. Rew, 90 U. S. 331; Knowlton v. Moore, 178 U. S. 41; State v. Vinsonhaler, 74 Neb. 675, 105 N. W. 472; Blakemore & Bancroft, Inheritance Taxes, p. 7.) Many decisions declaring this principle are cited in a' note in 33 L. R. A., n. s., 606, 610. Even in jurisdic-' tions where it is held that the right to take property by will or inheritance is a natural right which legisla-. tures can not take away, it is held that such taxes may be lawfully imposed under the power to make reasonable regulations for the devolution of property upon the death of the owner. (Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A., n. s., 121; Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, 26 L. R. A. 259.)
It was said in Nager v. Grima et al., 49 U. S. 490:
“Now the law in question is nothing more than an exercise of the power which every state and sov-' ereignty possesses, of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament,.- or by inheritance; and of prescribing who shall and , who shall not be capable of taking it.” (p. 493.)
The principle that the state may absolutely control the descent of property is adopted in Kansas (Hannon . v. Taylor, 57 Kan. 1, 45 Pac. 51), and is supported by the great weight of authority (Note, 9 L. R. A., n. s., 121).
' An inheritance tax is in the nature of an excise upon the'transfer, rather than a property tax, and the constitutional rule requiring uniformity in the rate of assessment of property prevailing in this and other, states does not apply. (Burroughs on Taxation, Federal, State and Municipal, § 54; Sedgwick on the Construction of Stat. and Const. Law, pp. 504-507.) It is analogous to a license or occupation tax. In City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, it was held that a graduated occupation tax was not violative of the constitutional rule of uniformity, and this view prevails - generally. It was said in Pacific Express Company v. Seibert, 142 U. S. 339, that:
“This court has repeatedly laid down the doctrine that diversity of taxation, both with respect to the amount imposed and the various species of property selected, either for bearing its burdens or for being-exempt from them, is not inconsistent with a perfect uniformity and equality of taxation in the proper sense of those terms.” (p. 351.)
The foregoing language was quoted and applied to an inheritance tax law of Illinois in Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, where that law was upheld against an attack based upon a supposed conflict with the provisions of the federal constitution securing to citizens the equal protection of the law. It was also held that the classification and progressive features of the Illinois statute did not transgress any requirement of uniformity in taxation.
Passing to the specific objection that the statute is in violation of that provision of the bill of rights declaring that all free governments are founded for the equal protection and benefit of the people, the appellant relies upon State of Ohio, ex rel., v. Ferris, 53 Ohio St. 314, 41 N. E. 579, 30 L. R. A. 218, wherein an Ohio statute providing for inheritance taxes was held to be in contravention of a similar provision in the constitution of that state. In the statute there under consideration estates not exceeding $20,000 in value were exempted from its operation. The court, in harmony with others already referred to, held that the tax was not upon property but upon the right to receive property. It was also said that the power of taxation being unlimited by the constitution included authority to tax rights, privileges and franchises, which were not covered^ by the clause requiring uniformity in taxation. It was held, however, that the exemption clause was in violation of the declaration of the bill of rights that government is instituted for the equal protection and benefit of the people. It was said that the privilege of receiving the first $20,000 of an estate, not exceeding that sum, is protected from taxation while the right to receive the first $20,000 of an estate exceeding that sum was taxed $200,-and that this was not equal protection. It was held in Black v. State, 113 Wis. 205, 89 N. W. 522, 90 Am. St. Rep. 853, that the exemption of estates under $10,-. 000 in value, provided for in a Wisconsin statute, conflicted with the constitutional guaranty of equal protection of the law. It was not decided whether the statute also violated the rule of uniformity, although that matter was commented on, and the court said that it was difficult to distinguish without undue refinement between a tax upon a succession and a property tax. In the same opinion, however, it was stated that if the Wisconsin law, like the New York law, had simply levied a tax of five per centum on collateral inheritances or transfers exceeding $500 in amount, there would be no difficulty in sustaining it. Turning to the New York inheritance tax law of 1885, referred to in that opinion, as it is cited and construed in thq decisions in New York, it is found that it authorized taxes upon devísesete collateral relations only when the estate devised to them exceeded $500 in value. (Matter of Cager, 111 N. Y. 343, 18 N. E. 866.)
• The New York statute (Laws of New York, 1885, ch. 483) contained a proviso that an estate passing by will or inheritance “valued at a less sum than five hundred dollars, shall not be subject to such duty or tax.” This $500 limitation was held to apply to the property passing to a legatee and not to the whole estate. (Matter of Howe, 112 N. Y. 100, 19 N. E. 513.) These decisions were reviewed and confirmed in Matter of Hoffman, 143 N. Y. 327, 38 N. E. 311, where a revision of the act of 1885 was under consideration. The similarity of the New York proviso, as construed by courts of that state, and that of our own statute providing that it shall not be operative unless the legacy or succession exceeds the sum specified in each class, will be readily noticed. Yet the New York law was held to be valid, and as observed by Judge Winslow in the Black case, a like provision would have been held valid in Wisconsin.
In Massachusetts a statute providing for a similar exemption to that in Wisconsin referred to in the Black case was held valid in Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, 26 L. R. A. 259. A later revision of the Massachusetts statute contains provisions for exemptions substantially like our own, only the amount is larger where the succession is to the husband, wife, or lineal heirs. (Mass. Supp. Rev. Laws, 1902-1908, p. 241; Acts, Mass. 1909, pp. 647, 791; Ross on Inheritance Taxation, p. 517.)
Other courts have held, in harmony with those of New York, that no constitutional guaranty is violated by provisos exempting from taxation successions or legacies below a certain amount in value. It is held in Vermont that a succession tax is not a tax upon property transmitted but upon its transmission, and is not obnoxious to the rule of uniformity and equality although estates of less than a specified value are ex empted from its operation. (In re Hickok’s Estate, 78 Vt. 259, 62 Atl. 724, 6 A. & E. Ann. Cas. 578.) In Montana the same result was declared concerning a proviso exempting estates below a certain amount in value. It was held that the proviso did not deny to any one the equal protection of the law, nor violate the rule of uniformity. (Gelsthorpe v. Furnell, 20 Mont. 299, 51 Pac. 267, 39 L. R. A. 170.) In a vigorous opinion giving the history of inheritance taxes and reviewing the various objections to their validity, the supreme court of Tennessee sustained the validity of a statute exempting estates under $250 in value from its operations. (State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L. R. A. 178.)
In Iowa estates above $1000 in value passing'by will or inheritance to collateral heirs or strangers aré subjected to a tax, and it is held that when an estate exceeds that sum there is no exemption. (Herriott v. Bacon, 110 Iowa, 342, 81 N. W. 701; Gilbertson v. McAuley, 117 Iowa, 522, 91 N. W. 788.) The validity of the Iowa statute was upheld in Ferry v. Campbell, 110 Iowa, 290, 81 N. W. 604, 50 L. R. A. 92, but it does not appear that the exemption feature was discussed.
In the great case of Knowlton v. Moore, 178 U. S. 41, the court, in an opinion by Mr. Justice White, sustained the validity of an act of congress providing for a succession tax upon legacies or distributive shares in personal property in excess of $10,000 passing by death. The court held that the amount specified referred to each share received and not to the whole estate and upheld the act- against all arguments assailing its validity based upon objections to classification and progression in rate, and against other objections similar to those urged here. The decision in State of Ohio, ex rel., v. Ferris, 53 Ohio St. 314, 41 N. E. 579, was referred to in that opinion as maintaining a contrary doctrine, but was not approved. Concluding the opinion covering over fifty pages, the court said:
“The review which we have made exhibits the fact that taxes imposed with reference to the ability of the person upon whom the burden is placed to bear the same have been levied from the foundation of the government. So, also, some authoritative thinkers, and a number of economic writers, contend that a progressive tax is more'just and equal than a proportional one. In the absence of constitutional limitation, the question whether it is or is not is legislative and not judicial. The grave consequences which it is asserted must arise in the future if the right to levy a progressive tax be' recognized involves in its ultimate aspect the mere assertion that free and representative government is a failure, and that the grossest abuses of power are foreshadowed unless the courts usurp a purely legislative function.” (p. 109.)
In the earlier case in the same court, reviewing a judgment of the supreme court of Illinois upholding an inheritance tax law of that state, the following principles were declared:
“1. An inheritance tax is not one on property, but one on the succession. 2. The right to take property by devise or descent is the creature of the law, and not a natural right — a privilege, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the states may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions; and are not precluded from this power by the provisions of the respective state constitutions requiring uniformity and equality of taxation.” (Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 288.)
Referring again more directly to exemptions, it appears from a note to the report of Booth’s Exr. v. Commonwealth, ex rel. Jefferson County Atty., 130 Ky. 88, 113 S. W. 61, in 33 L. R. A., n. s., 595 — a case quite pertinent upon this inquiry — that exemptions although differing in details, some being taken from the whole estate, others from the specific share transferred, and still others only where the property does not exceed a certain sum in value, are generally held not to invalidate the law in which they are contained.
In Ross on Inheritance Taxation, § 133, it is affirmed that laws exempting transmissions of property where the value does not exceed a specified amount are not subject to constitutional objections.
It is concluded that the inheritance tax law does not violate that clause in the bill of rights declaring that free governments are instituted for equal protection and benefit, and is not in conflict with the constitutional provisions respecting uniformity in the operation of general laws and uniformity and equality in the rates of assessment and taxation.. No other constitutional objections to the statute are presented in the argument, or discussed. The statute is therefore held valid.
The scope of section 2 of the bill of rights was stated in Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 3 Pac. 284, and section 1 was considered in the recent case of Schaake v. Dolley, 85 Kan. 598, 600-603, 118 Pac. 80. These decisions so far as pertinent to this case are in harmony with the conclusions reached.
The district court, holding the statute unconstitutional, sustained demurrers to the petition. This judgment is reversed, and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Johnston, C. J.:
Hannah C. Higman, the wife of appellant, fell into a ravine to which a long-traveled highway led. The culvert over the ravine had washed ■out and the township authorities moved the highway to one side about forty feet and made a new crossing over the ravine, leaving the old highway open for travel without any guard or barricade. On a dark night Mrs. Higman, who was unfamiliar with the conditions existing there, followed the old highway and fell into the ravine, suffering severe injuries. This action was brought by her husband to recover damages for the loss of her services and companionship, and also for the expenses incurred in nursing and caring for her while suffering from the injuries resulting from the fall. An action had previously been brought by her to recover the damages which she sustained, and .the facts concerning the injury are fully stated in the review of that proceeding. (Higman v. Quindaro Township, 89 Kan. 476, 132 Pac. 215.)
In his petition the appellant alleged substantially the facts stated in his wife’s petition, but he failed to state that the township had notice of the defect in the highway. Under the statute (Gen. Stat. 1909, § 658) imposing a liability upon a township for damages sustained by reason of a defective bridge, culvert or highway, notice to the township trustee of the defect for at least five days prior to the time the damage was sustained is essential to a recovery, and it has been held that nothing less than actual personal notice to the officer is sufficient (Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449).
It appears that after appellant had offered his testimony he asked the court for leave to amend his plead ing so that it would conform to the proof which he had produced, but this motion was denied. Appellee filed a demurrer to appellant’s evidence on the ground that it was insufficient to warrant a recovery against appellee, and this the court sustained. On this appeal the appellant contends that error was committed in denying the application to amend and in sustaining the demurrer to the evidence, but it appears that the appellant did not bring the evidence which he produced in court, nor did he even procure a transcript of the evidence and make the same a part of the record so as to be available on appeal as the code requires. (Civ. Code, § 574.) Without information as to what the prodf was, this court can not determine whether or not the proposed amendment would have conformed to the proof; neither can it determine that there was error in sustaining a demurrer to evidence which has not been preserved for our consideration. It is said that the grounds for the rulings were stated by the court at the time they were announced, and hence the evidence is not necessary to the determination of that point. In deciding the case the court remarked that notice was essential to recovery, and that an amendment alleging notice would be futile, as the statute of limitations had run on the statutory action which appellant proposed to plead. It is clear that notice had not been alleged in the original petition, and therefore a cause of action under the statute had not been pleaded. Appellant was insisting that there was a statutory liability against the township, and while he had set out what is in form a common-law liability it will hardly be contended that a recovery could be had against a township by reason of a defective highway except under the statute. Until the notice had been pleaded a statutory cause of action had not been alleged against the township, and it appears that the action was then barred. Amendments to a petition which amplify a cause of action imperfectly pleaded or substitutes a correct for an erroneous statement of facts relied on for recovery ordinarily relate back to the commencement of the proceeding, but where the amendment sets forth a new cause of action the statute of limitations continues to run until the amendment is filed. (Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254; Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657; Cunningham v. Patterson, 89 Kan. 684, 132 Pac. 198.) However, we have nothing here to show that the proof produced tended to establish a cause,of action even under the statute.
The filing of amendatory pleadings rests largely in the discretion of the trial court, and upon the record as it is presented here it can not be said that the court abused its discretion.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
On this appeal the question involved is whether or not there was error in an order granting a new trial. It appears that Charles F. Turner was the owner of ten shares of the capital stock of The Elbing State Bank of Elbing, Kansas, and that he entered into an agreement with C. A. Stuckey whereby Stuckey was to purchase the shares. The purchase price and the certificates of stock were placed in the custody of the Merchants State Bank of Wichita, under an agreement that the money was to become Turner’s when the shares had been legally transferred on the books of the bank. The bank refused to transfer the' shares of stock on its books. .Turner then began an action to enforce the transfer, and also asked for $500 damages resulting from the refusal to make the transfer, and he joined Stuckey, the purchaser, as a plaintiff. The bank answered, and in a cross-petition alleged that Turner had been the cashier of the bank for a considerable time, and while acting in that capacity had so conducted the business as to become liable to the bank in various sums of money amounting to $2152.97, and that the bank was entitled to a lien upon his shares of stock for that amount. Stuckey did not insist on the transfer of the stock, nor ask for any relief except the return to him of the money which, with the stock, had been placed in escrow in the Wichita bank. When the trial occurred neither Turner nor his attorneys were present, and in their absence a judgment was rendered against him for the sum of $1782. In due time Turner filed a motion for a new trial, alleging ten grounds, one of which was accident and surprise which ordinary prudence could not have guarded against and by reason of which he was not afforded an opportunity to present his evidence or be heard on the merits of the case; another that the decision was procured through a misunderstanding of attorneys as to the time the case would be ready for trial, and another because the case was not properly tried by the court, and that it was a case for a jury, and that a jury was not waived by Turner. At a hearing on the motion testimony was produced, and based thereon the court granted a new trial upon the ground that, through unavoidable casualty and misfortune, Turner had been prevented from prosecuting and defending in the action. As a condition to the granting of a new trial, the court adjudged that Turner should pay all the costs which had accrued up to that time, taxed at $75.59, and also pay to the attorneys of the bank an attorneys’ fee of $25. Testimony was offered to the effect that when certain motions which had been pending were disposed of in the district court in December, 1911, counsel for appellant advised counsel for appellee that they would desire to take depositions in the case, but that none had been taken. When the case was called on March 5, 1912, the court, upon consultation with counsel for appellant, decided that the case was triable by the court without a jury, and in a letter written by counsel for appellant to counsel for appellee, the latter, who lived in a neighboring county, were informed that the action was regarded as a court case, and that all court cases had been set down for March 25, and then added, “but after we know the case is for trial, like yourselves will have to have several days to get ready.” It appears that the senior partner of the firm employed by appellee was called to Indiana on March 18, on account of the sickness of his wife. The hurried departure of counsel.and the consequent loading of all the business of the firm, including jury trials in both the state and federal courts in Wichita, upon the junior partner, led him, he testified, to overlook the fact that the case had been set for hearing on March 25. This, he said, was due in part to the fact that counsel for appellant had indicated a desire to take depositions, and that as no notices to. take depositions had been served upon him he assumed that the case would not be tried until they were in fact taken. The case was called on March 25, and after, hearing some testimony in support of the answer and cross-petition of the appellant a judgment for a large sum was awarded against appellee. The motion for a new trial was presented at the same term and within three days from the rendition of the judgment.. The court granted the motion,, and it has been held that a much stronger case,-for reversal must.be.made where it is granted .than where it is refused. (City of Sedan v. Church, 29 Kan. 190.)
The court , is vested' with considerable discretion in the granting of new trials; and doubtless..in .this case it determined from the showing made that the claims and contentions of appellee.in the case were meritorious. It can .not be said that the appellee’s attorney was wholly free from negligence, and ordinarily it is not a good ground for a new- trial that an attorney did not know that- a case was set down for trial on a particular day or that he overlooked the fact that it had been assigned for trial at a particular time.' However, the sickness of counsel’s wife, his sudden- departure to a distant-place, the increased burden placed upon the other partner, the communications of the intention of counsel to take depositions and that additional time to prepare for trial would be required' by them, all together furnished some excuse for the delay and some ground for the ruling made. The reasons might not have been deemed so strong or to be sufficient if. the trial court had denied the motion for a new trial. Having been granted upon a motion - promptly made and upon terms favorable to appellant, and as each party will now be afforded an opportunity to have a trial upon the merits, we think there is little ground to- complain of the ruling. The trial court being vested with large, discretion in the matter of new trials, and being in closer touch with the case and better able to measure the testimony .and the good faith of the application for a new trial than a reviewing court can be, we can not say that there was no basis for granting the motion nor that the discretion of the court was abused. The motion was allowed on the ground of unavoidable casualty and misfortune, and it is said that no such ground was alleged in the motion. One of the grounds alleged was accident and surprise, and there is little difference between unavoidable accident and unavoidable casualty or misfortune.
In view of all the circumstances wé can not say that the order granting the new trial should be reversed. What was said in Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064, where it was -claimed -that a motion for a new trial was allowed upon insufficient grounds, has some application here:
“We do not think the application for a new trial was very formal. It was made, however, immediately after the judgment was rendered, and while the plaintiff below was still in court and present, and while the whole proceeding was still fresh in the mind of the trial court; and, although it may properly be said that the showing was not sufficient to fully comply with any of the provisions of the statute, and not such as would justify this court in reversing the ruling of the court below in that respect if it had overruled said motion, yet we think the court had power to set aside the judgment it had just rendered and grant a new trial; and, having exercised that power, this court will not reverse its action unless satisfied that the- court below had abused its discretion in so doing. Trial courts are permitted a good deal of latitude in the exercise of judicial discretion. Not being satisfied that the court below abused its discretion in this case, it is recommended that the judgment of the district court be affirmed.” (p. 448.)
(See, also, Ragan v. James, 7 Kan. 354; Railway Co. v. Fields, 73 Kan. 375, 85 Pac. 412; Rowell v. Gas Co., 81 Kan. 392, 105 Pac. 691; Humble v. Insurance Co., 85 Kan. 140, 116 Pac. 472; Cronk v. Frazier, 86 Kan. 879, 122 Pac. 893; Murray v. Railway Co., 87 Kan. 750, 125 Pac. 45.)
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Porter, J.:
Plaintiff sued the initial carrier to recover the value of a carload of flour destroyed while in the possession of a connecting carrier. The court sustained a demurrer to the evidence, and plaintiff appeals.
On March 18, 1910, the Hogan Milling Company, intending to ship a carload of flour to S. W. Mapes & Company, at Middletown, N. Y., made out a bill of lading and by a mistake of its shipping clerk billed the car to Middletown, Pa. It retained a copy of the bill of lading in its office and mailed the original, together with the invoice, to S. W. Mapes & Company at Middle-town, N. Y. They were received by the consignee March 22,1910. .The car was transported by the Union Pacific and its connecting carriers from Junction City to Middletown, Pa., where it arrived at nine o’clock on the morning of April 4, over the Philadelphia & Reading Railroad. The agent of that company on the same day placed it on a sidetrack and mailed a postcard notice to S: W. Mapes & Company, Middletown, Pa. He also made inquiries to discover for whom the car was intended, and on April 6, being unable to find the consignee, sent what is called an “Unclaim” report to the Philadelphia & Reading Railroad Company, stating that the car was unclaimed, and asking what disposition should be made of it.
On April 5, the Hogan Milling Company discovered the error in the billing and telegraphed a request to the agent of the Erie, an intermediate carrier, to divert the car to its proper destination. It appears that the agent of the Erie at Chicago neglected to transmit the diversion order for several days. In the meantime the car was standing on a sidetrack at Middletown, Pa., where it remained until April 9, when at four o’clock in the afternoon it was destroyed by fire. The fire originated about two o’clock in the afternoon in the business section of Middletown, spread.to where the car stood, and burned over a considerable area of the city, destroying more than thirty buildings.
The bill of lading, a copy of which is attached to plaintiff’s petition, provides that no carrier or party in possession of the property described therein “shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, or the act or default of the shipper or owner”; further, that “for loss, damage or delay caused by fire occurring after 48 hours (exclusive of legal holidays) after notice of the arrival of the property at destination . . . has been' duly sent or given, the carrier’s liability shall be that of warehouseman only.”
The plaintiff claimed in its petition that billing the car to Middletown, Pa., instead of Middletown, N. Y., was a mutual mistake, but the evidence shows the mistake to be that of the plaintiff alone. The petition also alleged that on April 5 the Union Pacific, by its local agent at Junction City, orally agreed to correct the error and to divert the car from Middletown, Pa., to Middletown, N. Y. The answer denied this, and also denied under oath that the local agent had authority to make such a contract. Mr. Hogan, president of the plaintiff company, frankly stated the facts as follows:
“In talking the matter over with him (Mr. Mills) we came to the conclusion that the best way and the quickest way was to wire Mr. Cook, the agent of the Erie at Kansas City, to divert the car. I assumed that Mr. Mills would also take it up with his company. I asked him how the matter could be handled in order to get it to the Erie in the quickest possible time. He said that by giving the Erie an order they might .possibly catch the car before it got off their line. I went over to our office and I immediately wired Mr. Cook.”
It is the main contention of plaintiff that the Erie Railroad Company was négligent in failing to handle the diversion order promptly, and that under the Car-mack amendment the initial carrier is liable for this negligence. The answer which the Union Pacific makes to this contention is that the failure of the Erie to divert the car promptly was not the proximate cause of the loss of the flour, and that the undertaking of the defendant, so far as the transportation of the flour was concerned, was at an end, due notice having been given to the consignee of the arrival of the car in accordance with the terms of the bill of lading, and that the flour was held by the Philadelphia and Reading railroad as a warehouseman only.
By the act of congress of June 29, 1906 (§7), commonly known as the “Carmack amendment” to the “Hepburn act,” a carrier receiving property for transportation from a point in one state to a point in another state must issue a receipt or bill of lading therefor, and is liable to the lawful holder thereof for any loss, damage, or injury to such property, caused by it or by any connecting carrier, with a right of action over against a connecting carrier for a loss occurring on the latter’s, line, and may not contract against such liability. The effect of the Carmack amendment is to hold the initial carrier engaged in interstate commerce, in receiving property for transportation from a point in one state to a point in another state, as having contracted for through carriage to the point of destination, using lines of connecting carriers as its agent. (Louisville & Nashville R. R. Co. v. Scott, 219 U. S. 209, 31 Sup. Ct. Rep. 171.) Before that amendment, the initial carrier might by contract limit his liability to loss occurring on his own line. This entailed hardship upon the shipper, who was frequently unable to obtain evidence showing how or where the loss occurred. To relieve the shipper of some of this hardship presumptions and rules of evidence were applied by the courts in fastening responsibility when it was found impossible to show on which of several connecting lines the loss occurred; and prima facie, that carrier was held liable in whose possession the goods were found in a damaged condition, although the shipper could maintain an action against any previous carrier whose negligence may have caused the loss. (Note to Manufacturing Company v. Railway Company, 121 N. C. 514, 28 S. E. 474, in 61 Am. St. Rep. 682.)
The purpose of the amendment was to prohibit the initial carrier from stipulating in its contracts that it is only bound to carry the property over its own line and then deliver it to the connecting carrier. It compels the initial carrier to contract to carry over the whole route, and his common-law liability continues until transportation has ended, regardless of any stipulation or provision iñ the contract to the contrary. Referring to the hardships imposed upon the shipper previous to the adoption of the amendment, the supreme court of the United States, in the opinion in Atlantic Coast Line v. Riverside Mills, 219 U. S. 186, 31 L. R. A., n. s., 7, used this language:
“This burdensome situation of the shipping public in reference to interstate shipments over routes including separate lines of carriers was the matter which Congress undertook to regulate.” (p. 200.)
It Was not the purpose of the amendment to extend the carrier’s common-law liability, except to provide that, until the transportation ended, the liability of an initial carrier should continue exactly the same as if it owned one line of railway from the point of shipment to the point of destination. Such is the construction which has been placed upon it by the supreme court of the United States, and by other courts. See Adams Express Co. v. Croninger, 226 U. S. 491, where it was said in the opinion:
“The statutory liability, aside from responsibility for the default of a connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers has been interpreted by this court as well as many courts of the States. Greenwald v. Barrett, 199 N. Y. 170, 175; Bernard v. Adams Express Co., 205 Mass. 254, 259.” (p. 511.)
To the same effect see Parker-Bell Lumber Co. v. Great N. R. Co., 69 Wash. 123, 124 Pac. 389, 41 L. R. A., n. s., 1064; Atlantic Coast Line v. Riverside Mills, supra, and cases cited in Note, 31 L. R. A., n. s., 7-13. See, also, Kansas City S. R. Co., v. Carl, 227 U. S. 639, and Missouri, K. & T. R. Co. v. Harriman Bros., 227 U. S. 657.
In order, therefore, to determine whether the initial carrier is liable in the present case, we have only to determine whether it would have been liable for the loss if it had owned and operated the connecting lines as one railroad. And, since under the Hepburn act the initial carrier may make any defense which was available to any connecting carrier on whose line the loss occurred (Riverside Mills v. Atlantic Coast Line R. Co., 168 Fed. 987), the present case may be said to turn also upon the question whether plaintiff could recover upon the facts against the connecting carrier unless, ■of course, the plaintiff is correct in the further contention that the failure of the Erie promptly to divert the shipment was the proximate cause of the loss.
At the common law carriers were insurers of freight except for loss occurring from the act of God or a public enemy; and two other exceptions have gradually come to be recognized, viz., where the goods are taken by authority of law, or where the loss is occasioned by the act of the shipper. The loss in this instance occurred by fire. Until the transportation ended by delivery, or what would amount to the same thing as delivery, the carrier was responsible for such a loss, unless, of course, the fire was occasioned by an act of God or a public enemy; and this without reference to any negligence on the part of the carrier. If, however, the transportation had ended and the carrier held the goods merely as a warehouseman, he was not liable for a loss caused by fire, unless it resulted from some negligence on his part or that of his servants.
The evidence is undisputed as to what took place at Middletown, Pa., where the fire occurred. The car arrived at nine o’clock on the morning of April 4. It was immediately placed on a sidetrack. On that day the agent of the company mailed a postcard notice to the consignee named in the bill of lading, S. W. Mapes and Company, Middletown, Pa. The agent testified that he endeavored to find the owner, and on April 4 mailed a postcard to S. W. Mapes and Company, Middle-town, Pa.; that he inquired of two flour and feed dealers, the only ones in the town, stating to them that he had a car of flour for S. W. Mapes and Company, but that he was unable to find any one who knew the consignee; that he then made an “Unclaim” report to his superior officer. S. W. Mapes testified that on March 22, 1910, he received the bill of lading sent him by the plaintiff, and that he made no inquiry either by letter or telegram for the purpose of locating the car. As observed, the bill of lading contains a provision that property not removed by the party entitled to receive it within 48 hours after notice of its arrival had been duly sent or given may be kept in car, depot or place of delivery of the carrier subject to the carrier’s responsibility as warehouseman only. Upon the undisputed facts the connecting carrier did all that was required of it by giving the notice and making diligent inquiries for the purpose of locating the consignee. Because there was no firm of that name engaged in the flour business at Middletown, Pa., the agent would not necessarily assume there was a mistake in the bill of lading; it might have been the intention to ship the flour to a consignee at a town where he was not permanently engaged in business. We think it necessarily follows from the evidence that at the time the loss occurred the goods were held by the connecting carrier as a warehouseman only.
Under the Carmack amendment the initial carrier is only made liable for loss, injury or damage resulting from some default in its common-law duty as a common carrier, or some default of the same kind in a succeeding carrier. It does not make the initial carrier liable as a carrier for a loss or injury to goods occurring while held by the succeeding carrier as warehouseman. Norfolk & W. R. Co. v. Stuart Draft Co., 109 Va. 184, 63 S. E. 415, is a case quite similar except that the consignee, after receipt of notice of the arrival of a car of flour, neglected to remove it for an unreasonable length of time. It was held that the liability of the connecting carrier was that of a warehouseman only and the initial carrier was not liable for the loss.
In Louisville & N. R. Co. v. Brewer, (Ala. 1913) 62 South. 698, a case directly in point, it was held that an initial carrier is not liable as a carrier under the Car-mack amendment for a loss occurring while the goods were held at their destination by the last carrier as a warehouseman after a reasonable length of time had elapsed subsequent to the mailing of notice of their arrival.
At the common law the extraordinary liability of the carriér ended when the transportation was'completed. (L. L. & G. Rld. Co. v. Maris, 16 Kan. 333; U. P. Rly. Co. v. Moyer, 40 Kan. 184, 19 Pac. 639, 10 Am. St. Rep. 183; McMillan et al. v. M. S. & N. I. R. R. Co., 16 Mich. 79, 93 Am. Dec. 208.) That delivery which will discharge a common carrier may be constructive is well settled. (Tarbell v. Royal Exchange Shipping Co., 110 N. Y. 170, 17 N. E. 721, 6 Am. St. Rep. 350.) For cases to the same effect involving the Carmack amendment, see Norfolk & W. R. Co. v. Stuart Draft Co., 109 Va. 184, 68 S. E. 415, where it was held that where the destination carrier’s liability as a common carrier has terminated, and it holds the -goods as a warehouseman, the initial carrier is not liable under the Carmack amendment. To the same effect is Atchison, T. & S. F. Ry. Co. v. Homewood, (Okla. 1913) 134 Pac. 856.
The contention that the failure of the Erie promptly to divert the shipment after notice by the plaintiff was the proximate cause of the loss can not be upheld. In the case of Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885, a car of corn was delivered by the railway company at Frankfort, Kan., for transportation to Kansas City, Mo. There was delay for an unreasonable length of time. When it finally reached Kansas City it was destroyed by the unprecedented flood off-1903. It was contended that if the company had moved the com promptly it would have been delivered before the flood occurred. It was held, however, that the delay was not the proximate cause of the damage. The opinion contains an elaborate discussion of the doctrine of proximate cause and cites numerous cases in support of the decision. In order that a delay in transportation can render the carrier responsible for a loss it must be so unreasonable as to amount to a conversion. (Rodgers v. Railway Co., supra; Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005.)
In the last-cited case the owner, in response to a notice, promptly called at the freight depot, tendered the charges due on the goods and demanded the delivery, but the railway company wrongfully refused the demand. One day thereafter an unprecedented flood occurred which damaged the goods. It was held that the refusal of the demand and the wrongful detention amounted to a conversion of the goods, and the railway company was therefore held responsible for the loss occasioned by the flood. The principle that “no wrong doer can be allowed to apportion or qualify his own wrong” was applied to the facts.
In Kemendo v. Fruit Dispatch Co., (Tex. Civ. App.. 1910) 131 S. W. 73, the diversion of an interstate shipment by an initial carrier to another carrier than the one stipulated in the bill of lading was held to be an act of negligence which makes the initial carrier liable as though for a conversion of the goods when not delivered or when delivered in a damaged condition. But in the present case there was no conduct or act of the connecting carrier that could be said to constitute a conversion; the connecting carrier acted with diligence and endeavored to locate the consignee and to effect a delivery. The goods were at the wrong place through the act of the plaintiff alone. We think it is very clear that the fire and not the delay in carrying into effect, the diversion order was the proximate cause of the loss of the flour.
In Riverside Mills v. Atlantic Coast Line R. Co., 168 Fed. 987, it was held that under the Hepburn act the initial carrier may make any defense which could be made by any connecting carrier on whose line the loss occurred. In Treleven v. Northern Pacific R. Co., 89 Wis. 598, 62 N. W. 536, the defendant was the initial carrier. The case was decided before the Carmack amendment, but it was held that the liability of the defendant as a common carrier, in any possible view of the law, had terminated. • The facts were similar to those in the present case. The goods had arrived at the place where the shipper, by mistake, had billed them and there remained uncalled for, and were destroyed by fire in the warehouse of the connecting carrier. It was held that a subsequent undertaking by its. agent to have them forwarded to their proper destination was at most a gratuitous agency on his part and would not render the defendant liable for loss, as its liability as a carrier had ende'd and the destination carrier held them as a warehouseman.
Since the loss was not occasioned by the delay in carrying out the diversion order, it becomes wholly immaterial to inquire whether, as the plaintiff contends, the Erie was the agent of the defendant in endeavoring to divert the shipment or was acting merely for the accommodation of the plaintiff.
It follows therefore that the judgment is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
Kansas City and its Board of Public Utilities appeal from a judgment for damages for personal injuries suffered when plaintiff fell into a hole in a parkway. Appellants contend that they had no notice of the defect, that the plaintiff was guilty of contributory negligence, and that the verdict was excessive in amount.
On the evening of October 14, 1939, plaintiff Julia Gilmore, a resident of Kansas City, went down town in a car driven by her brother, other passengers being her mother and her son. At about 10:30 p. m. they parked their car on the west side of Tenth street some distance north of the intersection of Tenth and Ray streets. When plaintiff stepped from the curb onto the parkway she fell into a hole, sustaining the injuries complained of. We are not advised when the action was filed, but the case did not go to trial until February 23, 1943. Plaintiff asked damages in the sum of $5,000 against both the city and the Board of Public Utilities which operates the city’s water and light department. The defendants’ answers were a general denial and an averment of contributory negligence by plaintiff. The jury brought in a verdict against both defendants for $2,750 and answered special questions as follows:
“1. If you find there was a defect in said parkway at the point where the alleged accident occurred, did the city have actual notice thereof and to whom was such notice given? A. Yes. After the accident to Water and Light Department.
“2. If you answer question No. 1 in the negative, state whether or not the defendant city and defendant Board of Public Utilities, by the exercise of ordinary care could or should have known of such alleged defect in time to have remedied or repaired the same before the accident which plaintiff claims caused her injury. A. Yes.
“3. At the time and place in question was the parkway in a reasonably safe condition for use, considering the extent of pedestrian travel thereon? A. No.
“4. Do you find from the evidence that the plaintiff’s injury was caused by her own negligence? A. No.
“5. Do you find from the evidence that plaintiff’s negligence contributed to her injury? A. No.
“6. Who do you find, from the evidence, was responsible for leaving the excavation or hole in which plaintiff alleged she was injured?
“The City: Yes.
“The Board of Public Utilities: Yes.
“The streetcar or Public Service Company: No.”
The appeal is from the judgment, from an order overruling demurrers to plaintiff’s evidence, and from orders overruling motions to set aside the answer to question No. 2, for judgment for defendants, and for a new trial.
The Board of Public Utilities, hereinafter called the board, is a quasi-municipal corporation which operates the city’s water and light plants. Under the allegations of the petition both the city itself and the board were properly joined as defendants.
A city which owns and operates an electric light system is bound to the same degree of care in maintaining it as a privately owned public utility. (Webb v. City of Oswego, 149 Kan. 156, 86 P. 2d 553.) The operation of the plant for the city by a separate agency does not relieve the city from liability. (Seely v. Board of Public Utilities, 143 Kan. 965, 57 P. 2d 471.)
We first consider the demurrer to plaintiff’s evidence which raises the question of whether there was evidence of notice of the defect and whether on her own statement plaintiff was guilty of contributory negligence as a matter of law. In passing upon the demurrer appellee is entitled, under the oft-stated rule, to have only that evidence considered which is favorable to her and to all inferences which may reasonably be drawn from the evidence in her favor. (Robinson v. Short, 148 Kan. 134, 79 P. 2d 903.)
Plaintiff testified that she and those with her were on their way to a beer tavern located across the street from the point where they parked their car; that she was the last one to get out of the car; that she had been riding in the front seat and got out on the right-hand side of the car, which was headed south; that she stepped on the curb and then took the next step with her right foot, when she fell into a hole; that her right leg went into the hole and her left leg crumpled up under her; that her brother and son helped her out and that she could hardly walk; that they went across the street to the beer parlor and sat down at a table; that she was feeling bad, her back giving her trouble and her legs hurting; that they did not stay at the beer parlor more than ten minutes and then went home. Her own testimony and that of others as to the nature and extent of her injuries will be referred to later.
The hole was 12 or 14 inches in diameter and from two to two and a half feet deep. Around the top it had a rim of rough cement, and the hole was more or less obscured by grass and weeds. The parkway, between the curb and the sidewalk, w'as narrow, one witness testifying that it was three or four feet wide. Plaintiff’s mother, who preceded her out of the car, stepped onto the curb and then across to the sidewalk — apparently in one step, though this is not entirely clear from the testimony. The car was parked between two poles located in the parkway about six feet apart — one a wooden pole and the other an iron pole.
The serious character of the defect in the parkway cannot be questioned. A hole a foot or more wide and two feet or more deep cannot be regarded as a slight defect. The case, therefore, is to be distinguished at the outset from cases involving small obstructions or depressions or other slight defects in streets, sidewalks or parkways. This subject is fully discussed and authorities cited in Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919, and the cases need not now be reviewed. The very recent case of Blankenship v. Kansas City, 156 Kan. 607, 135 P. 2d 538, involved a hole in a sidewalk, the witnesses differing as to how large and deep it was. We again noted the rule as to slight defects but stated that if the hole was a foot and a half wide, two to three feet long, and six to eight inches deep, as it was described by the plaintiff, the defect would be one which the city would not be justified in leaving in the walk if it knew such a defect existed. In that case', however, recovery was denied because of lack of notice, either actual or constructive.
Appellants stress the fact that the defect was not in a street or sidewalk but was in a parkway, which is not intended for public travel but which is reserved by the city for poles, hydrants, and other such equipment used by privately owned public utilities. They urge that this court has gone far in holding cities free from liability for defects in parkways and virtually contend that no defect in a parkway is actionable, as against the city. They rely largely on our recent cases of Dargatz v. Dodge City, 151 Kan. 747, 100 P. 2d 680, and Mead v. City of Coffeyville, 152 Kan. 799, 107 P. 2d 711. We think appellants push the doctrine much too far. Certainly cities should not he held to the same degree of care in maintaining parkways as in the case of sidewalks and streets. Parkings or parkways are not to be classed primarily as public thoroughfares. It is admittedly difficult, and perhaps impossible, to lay down a definite rule covering the degree of care required in maintaining them. But certainly we can not adopt a broad rule absolving a city from all liability. All the particular facts and circumstances must be considered. In the Dargatz case the parking between curb and sidewalk had been graveled or sanded and part of the gravel and sand had washed out, the depression into which the plaintiff stepped being described as fifteen inches one way, two feet the other way, and five to seven inches deep. There was no evidence that the city caused the depression. On the facts shown we held that there was no actionable negligence. The Mead case involved an iron stake one-fourth inch in diameter and five inches high, upon which plaintiff tripped and fell. There was no evidence or contention that the city was responsible for the stake being there, or that it had actual notice of its presence. While parkways are not intended for the use of pedestrians, generally, when sidewalks are provided, it is common knowledge that cars are parked at curbs and frequently the parkway must be used in getting to the sidewalk, unless passengers alight into the line of vehicular traffic and use the street. All attendant facts must be considered. (See Register v. City of Pittsburg, 139 Kan. 753, 33 P. 2d 173.) In the instant case the parkway was narrow, requiring only a step or two to cross, and the location was apparently in a business section. We cannot agree that the city had no responsibility to a pedestrian crossing it for the condition of the parkway.
Who and what caused the hole in the parkway? We think there was sufficient evidence upon which the jury could find that the hole was caused by the removal of a light pole by the board and failure either to fill it or to take adequate means for preventing its becoming a serious hazard to safety. There was testimony that the board had changed many poles along that part of the parkway; that generally new poles had been set about two feet from the old poles which were removed; that there was an electric light pole twenty-nine inches from the hole; that the hole was 12 to 14 inches wide, being about the size required for the electric light poles; a police officer testified — -apparently without objection — that he learned from others after the accident that the hole had been made by the removal of an electric light pole; that the rough cement around the rim of the.hole looked old; an employee of the board, employed in the “trouble department” testified:
“Q. Well, Joe, if that hole v/as twelve to fifteen inches in diameter, it might have been your pole? A. It might have been; yes, sir.
“Q. And if the new pole was set approximately from three to six feet from this hole, it was probably your pole, wasn’t it? A. It could have been; yes, sir.”
Did the city have notice of the defect? No proof was made of actual notice. It is true that the jury later answered question No. 1 in the affirmative. But it robbed the answer of any effect by locating the actual notice subsequent to the accident. However, the general rule is that actual notice is not required where the defect was caused by the city itself or by persons for .whose acts it is responsible. Perhaps it would be more accurate to say that in such cases notice is implied. (25 Am. Jur. 729; 50 A. L. R. 1193; 43 C. J. 1042; Tepfer v. City of Wichita, 90 Kan. 718, 721 et seq., 136 Pac. 317.) Furthermore, assuming that the hole was caused by the removal of an electric light pole and inadequate provision to take care of it, it would be hard to say that the jury could not reasonably conclude from the evidence that the hole had been there a sufficient time to give constructive notice.
Was appellee guilty, on her own testimony, of contributory negligence as a matter of law? We think not. Appellants stress her statements that she didn’t attempt to observe the parking space as she got out of the car; that she didn’t look down to see if there was a hole. We need not narrate her whole testimony. She also testified that she did look down as she stepped out of the car; that she didn’t expect there would be a hole in the parkway and didn’t see any hole. There was testimony that the hole was more or less obscured by grass and weeds. It is by no means clear that she could have seen the hole no matter how closely she had looked. The presence of a hole of that size and depth was not within the reasonable probabilities. She was not obliged, as a matter of law, to examine the parkway with meticulous care before stepping upon it. The question was for the jury.
Was the amount of the judgment excessive? Apparently no contention was made on this point in the court below, either in the motion for a new trial or otherwise. However, we have reviewed the evidence and while there was conflict in the medical testimony we find ample evidence to support the judgment for $2,750.
The motions for judgment for defendants and for a new trial raise no questions not already considered.
We find no error and the judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action on a policy of life insurance and from an adverse judgment the defendant appeals,.
The gist of the petition was that on August 22, 1933, the defendant company issued to Lloyd T. Arnall its policy of insurance on his life; that on May 29, 1934, Arnall left his home with the intention of going to his farm and he failed to return; that search was made to learn what had befallen him, but no one known to plaintiff had been able to obtain any information as to where he might be found; that plaintiff was the designated beneficiary under the policy of insurance and shortly after the disappearance of Arnall she notified the local agent of the defendant company, and she was later advised the defendant would not pay the policy unless it was convinced the assured was dead. About September 10, 1935, plaintiff offered to pay the premium which became due and payable October 23, 1934, but defendant advised her that it would not permit payment unless evidence was furnished of the insurability of the assured satisfactory to the defendant and defendant thereby waived further, tender of premiums. Plaintiff further alleged that by reason of the foregoing facts and circumstances, assured died while the policy of insurance was in full force and she was entitled to recover its full face value, for which she prayed.
Defendant’s answer, for our purposes, may be said to have consisted of certain admissions as to the issuance of the policy and the attempt in September, 1935, to pay the; premium due October 23, 1934, and.denials of the other matters pleaded, including a specific denial that Arnall was dead, and alleging that if Arnall was dead his death occurred after the policy of insurance lapsed for' nonpayment of premium. Defendant further alleged the action was barred by the statute of limitations.
A jury was waived and trial was had by the court. Defendant’s demurrer to plaintiff’s evidence was overruled and defendant introduced its evidence. The parties having requested the trial court to make findings of fact and conclusions of law, the trial court later advised counsel for both parties of its proposed findings and conclusions, and the defendant filed its motion to strike certain findings and to include other findings and conclusions. Later, and on March 26, 1943, the trial court caused its proposed findings and conclusions to be filed and denied the defendant’s motion. Thereafter and on April 8, 1943, the trial court found that judgment should be entered pursuant to its findings and conclusions and rendered judgment accordingly. No motion for a new trial was filed, but on April 16; 1943, defendant perfected its appeal to the supreme court from the rulings of March 26, 1943, and from the judgment of April 8, 1943. We note here that the findings of fact are based on all of the evidence and the conclusions of law are based on those findings. In view of questions hereafter considered it is not necessary that we set out the findings of fact nor the conclusions of law.
In its brief the appellant contends there was no evidence that Arnall died prior to October 23, 1934, which was the date of expiration of the policy of insurance on his life, or if there was such proof that the action was barred by the statute of limitations and the laches of plaintiff, and further no presumption of death arises from seven years’ absence unless it be shown that diligent inquiry through all sources and to all persons and places, where the person disap pearing is likely to be found, has been made, and nothing learned therefrom and that there was no proof that such inquiry had been made.
Appellee challenges the right of the appellant to be heard on the questions as presented by it, and after directing our attention to the fact that appellant had filed no motion for a new trial, argues that the only question now reviewable is whether the judgment, as a matter of law, is justified under the findings of fact and conclusions of law made by the trial court. We do not think it necessary to review the many decisions to which our attention has been directed and having to do with the necessity of a motion for a new trial as a condition precedent to a full review on appeal. It has been repeatedly held that in the absence of a motion for a new trial there can be no reexamination of issues of fact. On a number of occasions it has been held that where the trial court had 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 unless there had been a motion for a new trial, lacking which the only question left was the sufficiency of the findings and conclusions to support the judgment. See, inter alia, Brubaker v. Brubaker, 74 Kan. 220, 80 Pac. 455; Union Nat’l Bank v. Fruits, 124 Kan. 440, 260 Pac. 638; Kalivoda v. Kalivoda, 148 Kan. 238, 80 P. 2d 1050, and the cases cited therein. We need not review certain cases called to our attention involving whether or not a motion not specifically denominated as a motion for a new trial, was so framed that it might be construed as such. Although it is not clearly spelled out in all the cases mentioned above, the theory is that although questions of fact may not be reexamined or reviewed, the question whether the findings of fact and conclusions of law support the judgment presents a question of law and is open to review.
Prior to 1937 appeals from judgments and other appealable decisions and orders generally had to be taken within six months. By Laws 1937, ch. 268, § 2, appearing as G. S. 1941 Supp. 60-3309, that time was shortened to two months. By section 5 of the same act, appearing as G. S. 1941 Supp. 60-3314a, it was provided that when a party appeals, after final judgment, the fact that some ruling of which he complains was made more than two months before, should not prevent a review of the ruling. Not long after the statute became effective this court had occasion to apply it in Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720, it being said there:
“In respect to the court’s ruling on the demurrer to the evidence, appellee argues appellant is not entitled tp be heard because the appeal was taken more than two months after the demurrer to the evidence was sustained. (Laws 1937, ch. 268, § 2; G. S. 1937 Supp. 60-3309.) The point is not well taken. The appeal, here is from the final judgment against plaintiff. When an appeal is taken in time from the final judgment of the district court the fact that some ruling of which appellant complains was made more than two months prior to the time he perfected his appeal does not prevent a review of the ruling. (Laws 1937, ch. 268, § 5; G. S. 1937 Supp. 60-3314a.)” (1. c. 370.)
Of course, if an appeal is not taken in time from, the final judgment the statute mentioned is ineffective to permit review of prior rulings. That was the situation in In re Estate of Badger, 156 Kan. 734, 137 P. 2d 198, where an attempt was made to procure a ruling on a demurrer to the evidence where there had been no timely appeal from the judgment. But there it was said:
“G. Si 1941 Supp. 60-3314a provides that when a party appeals from a final judgment against him the fact that some ruling of which he complains was made more than two months after he perfected the appeal shall not' prevent a review of the ruling. If there was an appeal in time from the judgment then the above statute would permit us to examine the ruling of the court on the demurrer to the evidence. See First Federal Savings & Loan Ass’n v. Thurston, 148 Kan. 88, 80 P. 2d 7, and Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 220. This sends us to a further examination of the record.” (1. c. 738.)
Without expressing any opinion as to other changes that may have been effected by the enactment of the statute last mentioned, we think that where the ruling sought to be reviewed is one of law, it is open to review whenever a timely appeal is taken from a final judgment. And so we proceed to examine the printed record to determine whether the trial court erred in ruling on defendant’s demurrer to plaintiff’s evidence.
Preliminary to a recital of any of plaintiff’s evidence, it may be noted that this appeal involves questions arising from unexplained absence for a period of seven years and the presumptions that may be involved, depending on the facts. In the case before us there is no contention concerning the absence of the assured, but it is contended the evidence fails to disclose that any diligent search was made to discover His whereabouts, and that there is no evidence the insured died before his policy of insurance lapsed.
Except to state matters necessary to a complete understanding, our review of the evidence is limited to that bearing on the questions above indicated, hut in making that review we bear in mind the'rule that plaintiff is entitled to the benefit of the evidence, and inferences reasonably to be deduced therefrom, most favorable to her, and without regard to any contradictions there may have been between witnesses or between direct and cross-examination of any witness.
It may be stated that it is admitted by the pleadings that on August 22,1933, Lloyd T. Arnall procured from the defendant company a policy of insurance on his own life in which the beneficiary named was his wife, Rosa B. Arnall, who is the plaintiff. Under the policy the payment of the second premium was due October 23, 1934. The policy provided that failure to pay any of the first three years’ premiums should avoid and nullify the contract, but it also provided a grace period of thirty-one days for payment of premiums and for reinstatement within three years after default upon evidence of insurability satisfactory to the company. As is shown in more detail later, Arnall disappeared on or about May 29, 1934. Prior to the due date of the second premium, notice was sent to Arnall by the insurance company, but the premium was not paid. In September, 1935, the plaintiff offered to pay the second premium which became due in October, 1934, but the insurance company would not accept it without evidence of insurability, and that was never furnished nor the second premium paid. There was no- further evidence to show the insurance company waived payment of either the second or any succeeding payment of the premiums. This latter matter is mentioned in view of plaintiff’s allegations that the insurance company had waived the payment of premiums. The evidence was not sufficient to warrant any such conclusion, and plaintiff must fail unless the evidence offered in her behalf proved that her husband died on or before October 23, 1934, or in view of the grace period, on or before November 24, 1934.
With respect to the evidence as to Arnall’s disappearance and that he died while the policy of insurance was in force, we do not think it necessary to separately detail the evidence of the various witnesses. The substance of the testimony of all the witnesses discloses the following:
Lloyd T. Arnall and his family consisting of his wife and four children, lived in El Dorado. Iiis mother and two brothers also lived there. Although living in town, Arnall was engaged in farming a rented place east of El Dorado. Early on the morning of May 29, 1934, he had his breakfast at home. His wife packed a lunch for him and asked him to stop at a grocery store and buy some fruit for his lunch. He had stated he wanted to start early, that his car had no lights and he didn’t want to drive home in the dark. He did stop and buy the fruit. That evening he did not return as expected and later the police were notified. A search that night failed to disclose his whereabouts or his car. The next day his car was found on a street off the usual route he would have taken. It is not clear from the evidence as abstracted that the particular street was searched the night before and that the car was not then at the place where it was later found. His lunch was in the car when found. A search was made at the farm and the condition of the work animals indicated they had not been used. Search was also made about the farm and there was nothing to indicate he had been there. Rumors that he had been seen at various places were investigated and found to be groundless. A relative of a married daughter wrote that he had been seen near Joplin, Mo., and a short time later wrote that it was a mistake. This particular matter was not investigated further. Without further recital, it may be said that within a few months after May, 1934, the search was reasonably diligent, but that there was little or no evidence of search thereafter except that one son testified he finished high school’in 1935 and then worked for a tank company and was in Kansas City and in the states of Wyoming, Texas and Oklahoma, and that he made a point of looking at everybody, thinking that if his father was still alive he might run into him, but that he never did.
The evidence showed that Arnall was born in 1888, and therefore he was about forty-six years of age when he disappeared; that he had not been sick and that he was in good health on the day he disappeared. The copy of the application for insurance attached to the policy shows that on August 19, 1933, Arnall had in the ten years preceding consulted a doctor but once and that was in 1925 for a fractured bone in his left forearm, and that he had never suffered from any of the many diseases there listed. It was also shown that Arnall was on good terms with his immediate family and there had been no marital discord; that he expected to take his children swimming the evening of the day he disappeared; that he was also on good terms with his mother and a brother who lived in El Dorado. There was evidence he was congenial and not the type to commit suicide. A few days before he disappeared he had been to see his mother to make arrangements for her to go to a cemetery at Chelsea where members of her family were buried.
With reference to his financial situation, his wife first testified she knew of no indebtedness he had when he left home, but later she testified he was indebted to an El Dorado bank on a note of $375 secured by a chattel mortgage, but he had never told her the bank was pressing him for payment, and he was also indebted on another note of $1,430 which was endorsed by his mother, and that he had another note but for how much she did not remember; that her husband was not wealthy but worked hard and tried to keep his bills paid, and if the obligations worried him she didn’t know about it. After the disappearance a brother talked to the banker and was told that bank didn’t want Arnall. The evidence as to the extent of Arnall’s property is scant. Apparently he did not have much. His brother referred to him as “one of us poor farmer boys.”
The following also should be noted. A brother of Arnall stated he knew of no trouble Lloyd Arnall had with anyone prior to his disappearance; that there were rumors of threats made against him; that he had a son-in-law who caused him considerable worry. Mrs. Arnall was recalled and testified that her daughter’s husband named Warren was the person referred to; that he was in the penitentiary and her husband had said he was going to see that Warren didn’t get out; that before Arnall disappeared some person who had been in the penitentiary came to the home to see the daughter, to tell her that her husband wanted him to see how she was and for her to remember why he didn’t get his. parole. Warren was paroled in 1937 or 1938. He was in the penitentiary when Arnall disappeared.
Although under our own decisions and under the authorities generally, there may be grave doubt that the evidence discloses sufficient diligence to discover the whereabouts of Arnall after his disappearance, we have concluded not to place our decision on that ground and therefore do not further discuss it.
That leaves as the decisive question whether the evidence and the inferences that may be drawn therefrom, warrant a conclusion the insured died on or before November 24, 1934, the expiration of the period of grace for the payment of the second premium under the policy of insurance.
In considering that question it will be assumed without exposition that unexplained absence of a person for a period of seven years creates a presumption of his death, and that it is a question of fact whether his death occurred on or before a particular date, and that the burden of proof is on him who asserts that death has so occurred, and may be sustained by direct or circumstantial evidence. (Modern Woodmen v. Gerdom, 77 Kan. 401, 94 Pac. 788; United States v. Hayman, 62 F. 2d 118; 29 Am. Jur. 1088; 6 Cooley’s Briefs on Insurance [2d ed.] p. 5170.) At the outset we may eliminate all of those cases dealing with the disappearance of persons known to have been exposed to specific or extraordinary perils, or those in a desperate state of health, or fugitives, as the present case is not of any of those types.
In support of the trial court’s ruling appellee directs our attention to the A. L. R. annotations later mentioned, and specifically to cases later mentioned. In 34 A. L. R. 1389, 1390, it is stated that an inference of death prior to the expiration of the seven-year period is permissible even in the absence of evidence showing exposure to specific peril, where, taking into consideration the circumstances relating to the character, habits, conditions, affections, attachment, prosperity and objects in life of the absentee, which usually control the conduct of men, no reasonable explanation could be given for his absence, and a number of decisions in support are noted. This annotation states that the leading case on the subject is Tisdale v. Connecticut Mutual Life Ins. Co., 26 Ia. 170, 96 Am. Dec. 136, and decided in 1868. See the supplementary annotation in 61 A. L. R. 1327, 1329, for further cases. In 75 A. L. R. 630 may be found an annotation on the presumption of death in relation to the time of death as affecting failure to pay premiums of insurance during the seven-year period. For present purposes it may be said this annotation states that if the evidence is disputed, or if not disputed, relevant inferences may reasonably be drawn, the question of the fact of death, as well as the time of death is for the jury (1. c. 635), but whether the evidence is sufficient to raise the presumption or warrant a finding of death during the period is for the court to determine (1. c. 637)'. In support of both propositions many cases are cited including Mackie v. United Workman, 100 Kan. 345, 164 Pac. 263.
In the leading case of Tisdale v. Connecticut Mutual Life Ins. Co., supra, it appeared that the insured had gone to Chicago on business and disappeared in September, 1866. The evidence showed that the insured was a young man of exemplary habits, excellent character', fair business prospects, respectably connected and of happy domestic relations. He owed no debts of any considerable sum and had made payment of some small ones about the day of his disappear anee. His valise was found at his hotel and his bill there was not paid. The trial court had instructed the jury that death in less than seven years could not be presumed except on evidence of facts showing exposure to danger which probably resulted in his death, and that evidence of long absence without communicating with his friends, making abandonment of home and family improbable, and of want of all motive or cause for such abandonment which can be supposed to influence men to such acts, was not sufficient to raise a presumption of death. Judgment being against the beneficiary under an insurance policy, she appealed, the question decided being the correctness of the instruction. In holding the instruction erroneous, the court commented on the evidence, and held:
“The death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which probably resulted in his death.
“Evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable, and shearing a want of all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard from, may be inferred, without regard to the duration of such absence.” (Syl. ¶¶ 1, 2.) (Emphasis supplied.)
Appellee directs our attention to Gaylor v. Atlas Life Ins. Co., 185 Okla. 163, 90 P. 2d 661, decided in 1939. An examination of that opinion shows that the insured disappeared May 7, 1929. He had three policies of insurance, expiring respectively in July, August and September, 1929. The trial court had sustained a demurrer and on appeal the supreme court reversed. The opinion states it is unnecessary to review the evidence, but that it is abundant to bring the case within the rule of the leading case of Tisdale v. Connecticut Mut. Life Ins. Co., supra. The substance of that rule is stated in the second paragraph of the syllabus of the Gaylor case, and reads:
“Whether the death of an insured absentee occurred before the expiration of the seven-year period, giving rise to the presumption of death, and within the life of the policy upon his life, is a question for the jury, to be determined from all the facts and circumstances, if there be evidence of facts and circumstances relating to the character, habits, conditions of life, affections and attachments, etc., which usually control the conduct of men and there is an absence of evidence of any of those motives which ordinarily impel the voluntary abandonment of home, family, business, associates, etc.” (Syl. If 2.) (Emphasis supplied.)
Appellee also directs our attention to Gero v. John Hancock L. Ins. Co., 111 Vt. 462, 18 A. 2d 154, decided in 1941. The opinion contains a long statement of the facts from which it appears that the insured was a purser on a steamer making a trip across Lake Champlain. On July 15, 1938, he had been paid and had cashed his check and given the proceeds to his wife with whom he was on good terms. He was in good- spirits. On the afternoon of that day he started on a trip and was then in good spirits. During the evening he returned to the mate a pay check he had been carrying for him, and he was about the steamer until late. At- eight o’clock the next morning he could not be found. His door was locked, his keys were on his desk and his bed had not been slept in. There was some evidence he might have locked himself out of his room and attempted to pass along a narrow projection so that he could enter through a window which faced outward toward the water. His body was not found. The rule of the Tisdale case was applied, and it was held that the fact of his death and the time of it were questions for the jury.
Appellee further directs our attention to Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36, 134 S. W. 2d 960, decided in 1939. The opinion discloses a long statement of facts. Briefly, it appears the evidence showed that the insured did, and did not, have a happy home situation and that his financial situation was good, and that it was poor. He was a grocery salesman, used a car and had collected a large amount of money' which ordinarily he would have turned in on the next day. When he disappeared, he did not take his car. In applying the rule the court placed some emphasis on the latter, saying:
“If he had been running away, he would have been apt to take his automobile and at least some of his clothing other than what he was wearing. This is significant.” (1. c. 43.)
Appellee places weight on that, for Arnall did not take his car. The court continued thus:
“He evidently had a large sum of money on his person. His practice in this respect made him peculiarly subject to attack. Exposure to specific peril is often of much probative value.” (1. e. 43.)
In Insurance Co. v. Marshall, 84 Colo. 71, 268 Pac. 529, 61 A. L. R. 1321, decided in 1928, it appeared that the insured, who had a policy of insurance effective to June 18, 1925, disappeared on September 8, 1920, when on a trip to Denver for the avowed pur pose of attending a funeral. He did not attend the funeral, but a day or so later his truck was found and in it were articles he had purchased. His family situation was good, he was sober and industrious and of good habits. He had some mortgage indebtedness but was a hopeful and contented man. Again the Tisdale case is mentioned and relied on. It was held that presumption of death from unexplained absence arises at the expiration of the seven-year period, but not as to the time of death, which is to be proved by the facts and circumstances of each particular case. The sufficiency of the proof was upheld. It will be noted in that case there was a considerable period of time between the date of disappearance and the expiration of the policy of insurance.
In Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 192 A. 184, 115 A. L. R. 392, decided in 1937 and frequently cited, a rule quite like that in the Tisdale case was followed. We shall not detail the facts, but we do note the holding of the court that the presumption of death of the insured arising from seven years’ unexplained absence is enough to shift the burden of evidence from one suing on the policy and to require the defendant to go forward with evidence tending to show that the insured is not dead. We may observe that if the latter part of the above rule obtained in this state it would not relieve the plaintiff from making a showing by direct or cricumstantial evidence that the death occurred before the expiration of the policy of insurance under which recovery was sought. See Mackie v. United Workmen, 100 Kan. 345, 164 Pac. 263, and cases cited in 75 A. L. R. 630, 633.
In many cases it has been held that the evidence was insufficient to warrant its submission to. the jury. In the annotation in 75 A. L. R. 630, 637, published in 1931, will be found a list of cases so holding, none of which we shall review here.
In Browne v. New York Life Ins. Co., 57 F. 2d 62, decided 1932, the action was on an insurance policy expiring March 11, 1922. The insured who lived at Palco, Kan., disappeared on or about May 14, 1921. He had a wife and seven children. There is no specific showing as to his financial condition, but inferentially it appears his family life was happy. On May 15, 1921, the wife received a letter from her .husband mailed at Salina in which he stated that he was going to Kansas City and he guessed it meant an operation on his head. Prior to his departure he had complained of his eyes. On May 16 the wife went to Kansas City and inquired at various hos pitáis and invoked the aid of the police, but she found no trace of her husband and she then went to Salina where similar inquiries were made without result. She also notified various of his relatives, all without result as to disclosing her husband’s whereabouts or what might have happened to him. Upon the trial the district court directed a verdict in favor of the defendant, and the wife, who was the plaintiff, appealed. Without detailing all of the reasoning of the court in affirming the trial court, we note the following statement:
“Death might be proven by circumstantial evidence, as any other fact, but the party alleging death before the expiration of seven years must prove such facts and circumstances connected with the absence of the person as, when submitted to the test of reason and experience, would warrant a reasonable conclusion of death within a shorter period.” (1. c. 64.)
And stated further that the facts and circumstances of the case fell far short of that proof which would lead unprejudiced minds to conclude that the insured died on May 15, 1921, or at any other particular time during the life of the policy, and that a jury could not, except by guess and surmise, have determined that the insured’s death occurred during the life of the policy.
In Claywell v. Inter-Southern Life Ins. Co., 70 F. 2d 569, decided in 1934, it appeared the insured disappeared in August, 1926 and the action was on policies expiring in June, 1927. The insured had some financial and personal involvements, but there was evidence he had been happy and contented- in his -work. In that case, the court, after directing attention to the rule quoted in the Browne case, supra, stated that undisputed evidence, which taken as a whole leaves one uncertain as to whether the insured disappeared voluntarily or not, lacks the degree of probability required. It was further said:
“The classical case upon which appellants rely (Tisdale v. Conn. Mutual Life Ins. Co., 26 Iowa 170, 96 Am. Dec. 136) in the summation oí the evidence there submitted to the jury states not only the prosperous and happy state of the one disappearing, but also ‘with no cause of discontent with his condition, which would have influenced him to break the domestic and social ties with which he was so pleasantly bound to life.’ Later that opinion states: ‘The reasons that the evidence above mentioned raises a presumption of death are obvious; absence from any other cause; being without ihotive and inconsistent with the very nature of the person, is improbable.’” (1.c. 571.)
It was further said:
“There is no way in which a determination as to time of death can be more than a guess on the part of the jury or anyone else. It is somewhat analogous to the situation which sometimes arises in criminal cases when all of the evidence is as favorable to innocence as to guilt.” (1. c. 572.)
In Aetna Life Ins. Co. v. Strobel, 202 Ark. 504, 150 S. W. 2d 965, decided in 1941, the action was upon an insurance policy and it was incumbent upon the plaintiff beneficiary to show death of the insured on or before midnight of January 29,1938. The evidence disclosed that the insured left his home in Huntington, W. Va., early in the afternoon of January 28, 1938, in an automobile which about an hour later was placed in a garage in that town. On June 18, 1938, the insured’s body was found in the St. Lawrence river. It was shown by the evidence that the insured could have gone from his home to a point near where his body was later found so that he would have reached there about 9:45 p. m. of January 29; that there were no marks of violence on the body; that the deceased had drowned, and that his body had been in the water for several months. The beneficiary who prevailed in the trial court contended that because no motive for disappearance was shown and that it was possible for him to have reached the point where his body was found, coupled with the medical testimony, was such that the jury could reasonably find he died before the policy lapsed. In reversing the trial court, the supreme court stated:
“The plaintiff offered no affirmative proof that Strobel’s death occurred within the limited period; nor are the circumstances such as to give substance to an inference acceptable to reasonable minds.
“It is not sufficient to say the insured might have met death before midnight of the 29th. There must be some condition from which, in normal sequence', it may be presumed that death occurred on or before the stated time.” (150 S. W. 2d, 966.)
In Schneiderman v. Mutual Life Ins. Co., 290 N. Y. S. 388, 160 Misc. 680, will be found the opinion rendered on trial of the action in the city court of New York, to recover on a policy of insurance which did not finally lapse until March 2, 1926. The insured, a young man twenty-seven years of age and a printer by trade, left his residence on the morning of July 16, 1925, and never returned, nor did he thereafter communicate with his friends or relatives. It appeared that his relations with his family were good and that although he was temporarily out of employment he was not without funds. Extensive search was made for him and in January, 1933,' an action was brought upon the policy, which was tried to the court without a jury. We need not repeat any part of the opinion of the trial justice which holds that as respects presumption of death aris ing from seven-years absence, each case must depend upon its own facts but that in his opinion the evidence raised the presumption that the insured died shortly after his disappearance. From that judgment an appeal was taken and in the case of the same title, reported in 3 N. Y. S. 2d 35, 166 Misc. 735, the appellate court in a per curiam opinion stated that as no sufficient evidence was offered by the plaintiff to establish the fact that the insured died prior to March 1, 1926, the date the policy, lapsed, the defendant’s motion made in the trial court to dismiss the complaint should have been granted.
Fink v. Prudential Insurance Co., 162 Ore. 37, 90 P. 2d 762, decided in 1939, and to which our attention is directed, contains a detailed statement of the evidence and an extended discussion of the law applicable. As the judgment of the trial court was reversed in the supreme court principally because of the failure of the plaintiff to show sufficient diligence in making inquiry to discover the whereabouts of the insured or what had happened to him, we shall not review the case further.
Many other cases have been cited in the briefs of appellant, but as has been noted in the cases cited, each case stands on its own facts and we discern no good purpose in reviewing other cases where it was held the evidence was not sufficient.
The review of the law applicable and of the plaintiff’s evidence leads to the following observations and conclusions: Arnall’s unexplained absence for a period of seven years warrants the inference that at the end of the period he was dead. To justify any presumption or inference that he died at an earlier date, here November 24, 1934, the last day of grace for payment of the second premium on the insurance policy, there must not only be evidence of his unexplained absence and of his character, habits, domestic relations and the like making abandonment of his home and family improbable, but there must be a showing of a want of those motives which may be supposed to have induced him to leave. Those facts, when shown, must be such that, when submitted to the test of reason and experience, they warrant a reasonable conclusion of death within the shorter period.
In the instant case, the evidence showed that Arnall had disappeared, and that search had been made to discover his whereabouts or what might have befallen him. We have previously stated we do not place our decision on any lack of diligence in that search. The evidence also showed facts concerning Amall’s character, habits, domestic relations and the like, tending to show' abandonment of his home and family improbable, but there is no showing of a want of motives which might have influenced him to voluntarily leave. On the contrary, it was shown that he was heavily indebted and it might reasonably be concluded he left on that account. We are not impressed with the appellee’s suggestion that Arnall’s disappearance may have been caused by his convict son-in-law. The most that was shown was that the son-in-law was in the penitentiary, that Arnall had said he was going to see he didn’t get out, and he was not out when Arnall disappeared. In those cases where the rule of the Tisdale case has been applied, and the evidence held sufficient to warrant the presumption of death before the expiration of the period of seven years’ unexplained absence, there has been either a showing of want of motive which ordinarily impelled voluntary abandonment of home and family, or there has been showing of facts, disclosing exposure to some peril.
Under the evidence in the case before us, the trier of the fact could not, except by surmise and conjecture, determine that Arnall’s death occurred on the day he disappeared, on May 29, 1934, or on or before November -24, 1934, when his insurance finally expired, or on any other date short of the seven years’ period of his unexplained absence. A person in good health, as he was, is presumed to live, not to die. Except for his disappearance there is no evidence he died on or about May 29, 1934, nor is there any evidence that he died on any date between then and November 24, 1934. To say that Arnall died on or before the latter date is to reach a conclusion not supported by the testimony, but resting only on guesswork. The presumption of death arising after seven years’ unexplained absence has no retrospective application. As we view the evidence, it was sufficient only to warrant the presumption of death from seven years’ unexplained absence, and not to warrant presumption of death at any earlier time, and the defendant’s demurrer to it should have been sustained.
In view of the conclusion which we have reached, it is not necessary to mention other matters urged in the briefs. The judgment of the trial court is reversed and set aside, and the cause remanded with instructions to sustain defendant’s demurrer to plaintiff’s evidence.
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The opinion of the court was delivered by
Dawson, C. J.:
This appeal presents for review a ruling of the trial court in the preliminary stage of a prosecution for grand larceny for the alleged theft of a pick-up motor truck. When the jury was empaneled and the prosecuting attorney had made his opening statement, counsel for defendant moved for judgment on the ground that the opening statement showed that defendant was not guilty of grand larceny, but if guilty of anything it was embezzlement. The trial court took the motion under advisement until the testimony of the complaining witness was received.
The jury were temporarily excused, and James Francisco, the prosecuting witness and owner of the pick-up truck, was called as a witness. His testimony was briefly to this effect:
Francisco was a Labette county farmer. His family were temporarily sojourning in Joplin, Mo. While returning from a visit to his family Francisco gave defendant a ride, and then learned that defendant was looking for work. Francisco told him he could give him work and took him to his farm home, and set him to work at whatever there was to do, including the mowing of weeds. A few days later, on July 18, 1942, defendant was mowing weeds about the farm, and Francisco was plowing in a field remote from the house. At noon Francisco came in from the field and he and defendant ate lunch together. After lunch Francisco and defendant got into Francisco’s pick-up truck and rode in it to the back field where Francisco was to resume plowing. Defendant then drove the truck back to the house. Francisco’s testimony, in part, reads:
“Q. Now, he accompanied you from the house over to the field, is that right? ... A. Yes. I drove the car, and he came along to bring the car back to the house.
“Q. Did he bring the car back to the house? A. Yes.
“Q. Now, then, what, if anything, did you say to him when you alighted from the car before he left for the house? A. I don’t recall saying anything at that time, only he did know he was to go back to mowing weeds, because he had been mowing weeds that morning, and that was about 1:15 in the afternoon.
“Q. Had you told him to do that? A. I had told him to mow the weeds, yes.
“Q. That was your instructions to him? A. Yes, sir.”
Instead of renewing his task of mowing weeds after driving the truck back to the house, defendant entered the house, changed his clothes, stole some clothing belonging to Francisco’s son, stole a .22 rifle, stole ten dollars in pennies and took the truck and disappeared. When Francisco came to the house that evening and found defendant and the truck missing he reported the fact to the county authorities. Sometime the same afternoon defendant had a collision accident with the truck over in the neighboring county of Wilson. The sheriff of Wilson county found the truck which was damaged to the extent it could not be operated. Defendant told the sheriff he was a son of Francisco, and the officer let him go. Sometime later defendant was located in Texas and brought back to Labette county to stand trial.
When the trial court had heard Francisco’s testimony in detail, it inquired if the state was satisfied with its accuracy and truth, and the prosecutor responded in the affirmative. Then the trial court inquired of counsel for defendant if he was renewing his motion for judgment on the prosecutor’s opening statement, and the latter also answered affirmatively. The trial court then called the jury and discharged it, on the express ground that the facts adduced in the prosecutor’s opening statement and the testimony of the prosecuting witness showed that there was no basis for a prosecution of defendant for grand larceny, but for embezzlement. The trial court also ordered defendant discharged from custody on the crime charged in the information, but directed the sheriff to hold him until the county attorney should determine what further or other prosecution should be instituted against defendant.
The state appeals, contending that neither in fact nor in law did the testimony of Francisco, the prosecuting witness, fail in any particular to show the essential elements which constitute the crime of grand larceny, and that in neither respect did that testimony (or the prosecuting attorney’s opening statement) show facts constituting the crime of embezzlement. The pertinent provisions of the crimes act read:
“Grand, Larceny. Every person who shall be convicted of feloniously stealing, taking or carrying away . . . any automobile, or motor vehicle, . . . belonging to another, shall be deemed guilty of grand larceny.” (G. S. 1935, 21-533.)
“Embezzlement of .. . property. Any . . . employee, ... or servant of any private person, . . . who shall embezzle or convert to his own use, or shall take . . . with intent to convert to his own use, without the assent of his employer, any . . . goods ... or effects whatsoever, belonging to any such person, . . . which shall have come into his possession or under his care by virtue of such employment, . . . shall upon conviction thereof be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, . . .” G. S. 1935, 21-545.)
Larceny was a crime at common law (32 Am. Jur. 882) and it would be superfluous to undertake a dissertation on its meaning. Embezzlement at common law was not a crime but merely a tort against the injured party. (18 Am. Jur. 571; 87 A. S. R. 19 et seq.) Its status as a crime is modern and purely statutory. While larceny and embezzlement are distinct offenses and' so denounced in our crimes act, they are measurably akin to each other, but there are distinguishing characteristics in each. Thus in larceny the element of trespass is inherent in its commission while in embezzlement possession of the res is obtained for a lawful purpose but which the wrongdoer later perverts to an unlawful use or purpose of his own. In 32 Am. Jur. 891, 892, it is said:
“Larceny and embezzlement are generally recognized as distinct and separate crimes, although the two offenses have much in common, and the distinction between them has been broken down in many jurisdictions by statutes which classify acts constituting embezzlement as well as those constituting larceny under the one head of larceny. Apart from such statutes, however, and at common law, the elements of trespass, or fraud equivalent thereto, and of felonious intent on the part of the taker at the time he obtains possession of the goods distinguish larceny, in which possession of another’s personal property is unlawfully taken and retained, from embezzlement, which consists in the fraudulent and felonious appropriation of another’s goods by one to whom possession of them has been entrusted, or who' has acquired such possession in some other lawful manner, and includes no elements of trespass or of criminal intent existing at the time possession is acquired. . . . The historical basis for the distinction lies in the fact that embezzlement is a purely statutory offense created in order that those guilty of fraudulently misappropriating the goods of others might not escape punishment because their acts did not amount to larceny under the technical rules of the common law.”
The courts have generally drawn an important distinction based upon the wrongdoer’s original relation to the res. Thus where the accused has the mere custody of the property and the legal possession is still in the owner, if the wrongdoer makes away with the property with intent to deprive the owner of it permanently his offense is larceny; whereas if lawful possession is conferred on the wrongdoer as where property is entrusted to a bailee or trustee, a later conversion to his own use by the wrongdoer is embezzlement— unless at the time possession is conferred on him he already has formed the wicked intent to convert it to his own use, in which case the offense is classified as larceny. On this point, in 32 Am. Jur. 893, it is said:
“The character and nature of the crime depend on the intention of the parties. The intention of the owner not to part with his property when re linquishing possession is, in this class of cases, the gist and essence of the offense of larceny and the vital point on which the crime hinges and is to be determined.”
And at pages 958-961 in the same work it is said:
“The rule was laid down that where one having only the bare charge or custody of property for the owner converts it animo furandi, he commits a trespass and is guilty of larceny, the possession, in judgment of law, remaining in the owner until the conversion. This is the rule at common law and under statutes declaratory of the common law. Conversely, except in cases where possession has been obtained by fraud or trick, or with the felonious intent then existing to convert the property to his own use, one having not merely the custody of personal property belonging to another, but the legal possession thereof, cannot generally be held guilty of larceny at common law or under a statute declaratory thereof, although he may be guilty of some statutory offense such as embezzlement.
“What amounts to possession and what to mere custody within the meaning of these rules probably cannot be determined according to any settled formula, but the question in any particular case must depend largely upon the capacity in which the accused was given access to or dominion over the property taken, and upon the powers or duties which the owner gave or imposed upon him with respect thereto. For example, one to whom property is delivered by the owner for some limited, special or temporary purpose may be regarded as having its custody only, and as capable of committing larceny thereof. Hence, if the owner gives his property to another to take to the owner’s house, and such other person wrongfully sells it, he is guilty of larceny, . . .”
In 2 Wharton’s Criminal Law, 12th ed., sec. 1197, it is said:
“If a servant or other agent who has merely the care and oversight of the goods of his master — as the butler of plate, a messenger or runner of money or goods, a hostler of horses, the shepherd of sheep, and the like — convert such goods to his own use, without his master’s consent, this is a larceny at common law; because the goods at the time they are taken, are deemed in law to be in the possession of the master — the possession of the servant in such a case being the possession of the master. The same rule is applicable to all cases in which a person to whom goods are given for a particular purpose (as the agent of another) has bare possession. . . . Where the defendant, who was carter to the prosecutor, went away with and disposed of his master’s cart, the larceny was held complete; and so where the defendant, a porter to the prosecutor, was sent by his master to deliver goods to a customer, and, instead of doing so, sold them. Where a person employed to drive cattle sells them, it is larceny, and so where a lighterman embezzles com he was sent to land from a vessel.”
See, also, annotation in 146 A. L. R. 529 et seg., to a recent Missouri case (State v. La France, 165 S. W. 2d 624), where the distinc tion is drawn between a wrongdoer’s mere custody of a chattel and the legal possession of it, in respect to the nature of the wrongdoer’s offense when he deprives the owner of it permanently for some use or purpose of his own.
This distinction between mere physical custody and legal possession of property has been recognized in our own reports where the question of larceny or embezzlement was involved. In State v. Walker, 65 Kan. 92, 68 Pac. 1095, where defendant was convicted of grand larceny for the theft of money which defendant received from its owner for the purpose of being sent away by United States mail but which defendant kept with intent to convert it to his own use, this court held:
“One person may have the legal possession of goods of which another, acting for him, may have the mere physical custody, and, in such case, the latter may be guilty of larceny from the former if he keep the goods against the possessor’s will with intent to convert them to his own use.” (Syl. IT 3.)
In the opinion it was said:
“It is true that larceny cannot be committed except by a wrongful assumption of the possession of another’s goods. However, the possession of which a thief deprives an owner does not mean, necessarily, the manual control or dominion of the property stolen. There is a difference between possession and custody. One may have what the law esteems the possession of property, while another has its custody.” (p. 95)
In 125 A. L. R. 371, it is said:
“Where personal property belonging to the master or employer is feloniously converted by a servant or employee having at the time a mere custody of the property, as distinguished from the legal possession thereof, the offense is generally held to be larceny.”
See, also, Tripp v. United States Fire Ins. Co., 141 Kan. 897, 44 P. 2d 236; and our early case of State v. Woodruff, 47 Kan. 151, 27 Pac. 842, 27 A. S. R. 285.
With the foregoing rules of law in mind, it should be clear that the prosecuting attorney’s opening statement and the pertinent facts detailed in the sworn testimony of the prosecuting witness indicated the commission of the offense of grand larceny as charged in the information, not that of embezzlement. Defendant had been given the bare custody of the truck to drive it back to the house. His custody of the truck, never amounting to legal possession, terminated when he took it to the house as his employer directed him to do. What he did afterwards, about changing his clothes, stealing some other clothing, some money and a riñe, and driving off with the truck constituted an entirely new and independent adventure, in no way related to the purpose for which his employer gave him the bare custody of the truck. It was clearly by unlawful trespass that he appropriated the truck to his own use with the intent to deprive the owner of it. His offense had none of the elements — none of the distinctive earmarks — of embezzlement. Of course he is not being prosecuted for the theft of clothing, or money, or the rifle. Here those matters are merely evidentiary incidents to prove, if proof were needed, that defendant was off on the criminal adventure of stealing the farmer’s truck, not on any business or employment of his master, when he drove the truck out of the farm yard and disappeared with it.
It follows that the judgment of the district court was erroneous, and the cause must be remanded with instructions to set aside its judgment, and to proceed with the cause as in an ordinary criminal case where a mistrial has occurred through no fault of the state. It is so ordered.
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The opinion of the court was delivered by
Benson, J.:
The question upon this appeal is whether a person in possession of real estate under a contract to purchase it can maintain an action to quiet his title without paying th.e consideration where an action for the unpaid balance would be barred by the statute of limitations. This question must be answered in the negative upon the authority of the uniform decisions of this court. (Bowman, et al., v. Cockrill, 6 Kan. 311, 338; Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844; Burditt v. Burditt, 62 Kan. 576, 64 Pac. 77; Johnson v. Wynne, 64 Kan. 138, 141, 67 Pac. 549; Gibson v. Johnson, 73 Kan. 261, 84 Pac. 982.)
The plaintiff alleged the contract and payment in full of the consideration. The defendant admitted the contract, admitted that several payments had been made upon it, and alleged that a balance of the consideration was still unpaid, but did not ask for affirma tive relief. From the dates of the payments. so admitted it appeared that the last one was made more than five years before the suit was begun. The court sustained a motion of the plaintiff for judgment in her favor quieting title upon the ground that an action for any part of the purchase money remaining unpaid was barred by the statute of limitations.
A vendee of lands who has not paid the consideration can not maintain an action for specific performance, or to quiet his title against the vendor, without paying the amount due. He who seeks equity must do equity. A recent statute (Laws 1911, ch. 232) allowing a mortgagor to maintain an action to quiet title where the mortgage debt is barred by limitations was construed in Shepard v. Gibson, 88 Kan. 305, 128 Pac. 371. It was suggested in the opinion that it was not in the legislative mind to extinguish a cause of action but merely to adjudicate a status, and that under that statute the mortgagor, without waiting for an action by the mortgagee, might take the affirmative to have the vitality of the mortgage determined. It was stated, however, that the judgment in such a case would go no further than would have been awarded in an action brought by the mortgagee. A statute designed to clear titles of old mortgages upon which the right to recover the debt had been barred, some of which have been paid and some abandoned, .can not be stretched sufficiently to authorize a judgment quieting the title of a vendee under a contract to purchase, merely because the vendor has failed to enforce payment within the statutory period.
The limited application of the case of Hogaboom v. Flower, 67 Kan. 41, 72 Pac. 547, is pointed out in Gibson v. Johnson, 73 Kan. 261, 264, 84 Pac. 982, and in Kirk v. Andrew, 78 Kan. 612, 614, 97 Pac. 797. The decision in the Hogaboom case must be carefully con sidered in the light of the facts there presented, and will not be extended to the situation appearing here.
The judgment is reversed and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Burch, J.:
Roberts purchased of Eppler a six-disc and eight-disc engine gang plow, and gave his note in payment of the price. Before giving his note he tested the plow by plowing a twenty-acre tract for Eppler, for doing which Eppler paid him. When sued on the note Roberts claimed that the test was a preliminary one only, that false representations concerning the plow were made by way of a warranty, which was not fulfilled on further test, and consequently that no liability existed. As a matter of fact, after the defendant tested and paid for the plow he took it home, plowed one hundred ten acres more, and then sold his farm and moved away, so that he had no further use for the plow. On a trial the jury found specially that the defendant personally examined, tried and tested the plow before he signed the note, and that the plow was not purchased under a warranty, and returned a general verdict for the plaintiff. Judgment was entered accordingly and the defendant appeals.
In pleading his defense the defendant made compound allegations that the plaintiff “represented and warranted” the plow to have certain attributes, that “said representations and warranties” were false, were known to be false by the plaintiff, were made to deceive, and were relied on by the defendant to his injury. It is now insisted that two entirely separate and distinct defenses were presented, one of false representations and the other of warranty, and that the court, following the language of the answer, did not take pains to carefully distinguish between them in stating the law to the jury. The defendant was not prejudiced by the course pursued. He testified that whether or not he should keep the plow depended on the result of a test, and now relies, not on false representations but on a breach of warranty. The latter defense was submitted to the jury who found that no warranty was given.
It is argued that the instructions to the jury with reference to the subject of warranty were erroneous. In one instruction the court said that in order to find the plaintiff liable on a warranty the jury should find that he made statements amounting to a warranty, and then should find certain other things. In another instruction the jury were correctly advised as to the kind of statements which would and would not amount to a warranty. The jury found there was no warranty, and consequently the additional matters mentioned in the first instruction are not material.
It is said that certain statements which the plaintiff admitted he made in connection with the sale of the plow amounted in law to a warranty, and that he should be liable upon them. These statements were not, however, of the kind relied on as a defense to the action, and the jury had the right to interpret them as expressions of opinion. For example, the petition alleged that the plaintiff said the plow would • work perfectly in land covered by Russian thistles. The plaintiff testified as follows:
“I told him it would cover Russian thistles, but not out of reason; but he would n’t acept that, nor did n’t. I told him it would plow in Russian thistles, I thought, and it has, and for him and me, too.”
Again, the petition alleged that the plaintiff said the plow was superior to all other plows of any other pattern or make for use in land like that in Trego county. What the plaintiff said was that he thought the Daniel-son disc plow was as good a disc plow as any made.
The court instructed the jury as follows:
“5. If you find and believe from the evidence in the case that the defendant inspected, tested and tried out the plows by actual use, and accepted them, before he signed the note, sued on, then your verdict should be for the plaintiff for the unpaid balance of the note, with interest to date.”
The defendant says he could test and accept the plows and still take a warranty. Since, however, there was no warranty the instruction exactly fitted the facts.
In certain other instructions which are criticized the court merely followed the defendant’s own requests for instructions, and if error were committed it was invited.
The plaintiff assigned the note as collateral security. The note contained provisions having the effect of a chattel mortgage. The assignee foreclosed the fiistrument and the plaintiff purchased the plow at the sale. The court properly charged the jury that the burden did not rest on the plaintiff to show that the sale was lawful and fair.
It is not necessary to discuss the various assignments of error further. The defendant ought to pay, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This is an action to recover damages for the death of the plaintiff’s minor son killed by the defendant’s brakeman.
The material facts are that the plaintiff’s son, Doan Kemp, and two other young men, trespassing on one of the defendant’s trains, rode from Lebanon to Bellaire without paying fare. When the train stopped at Bellaire, about 10 o’clock P. M., they alighted and stood together on the platform, intending to board it again and ride farther west, still beating their way. Their purpose in stepping off was that they might get together upon the train when it moved on. As they were standing about six feet from the car next to the tender, waiting for the train to start, a brakeman, taking a revolver from the baggage car, started toward them, and when he was about eight feet away said, with an oath: “Get out of here.” Whereupon they ran south and up- the bank of the cut in which the train was standing. The bank was from ten to twenty feet from the car, and was eight to ten feet high. On reaching the top of the bank one of them shouted, “Go to hell.” The brakeman exclaimed, “What’s that?” and started after them, climbed up the bank, ran a little way after them, and fired a shot, mortally wounding Doan in the back as he, with his companions, was running southwest. Doan was forty-two feet from the train when he was shot. The railroad extends east and west through the cut at Bellaire, and this train was west-bound. The conductor, called by the plaintiff, testified to the duties of a brakeman:
“Q. State to the jury whose duty it is to keep trespassers and bums away from the train and who ride thereon without pay. A. Why any member of the crew.
“Q. That was the duty of the brakeman was it? A. Yes sir. . . .
“Q. You had authority to use force if it was necessary? A. Yes sir.”
There was some evidence of an encounter between the brakeman and the trespassers, but the jury found to the contrary, and their findings, supported by competent testimony, establish the facts as stated. The defendant offered no evidence.
On a demurrer to the evidence the question was presented whether upon these facts the company was liable for the wrongful act of the brakeman in firing the fatal shot. This question again arises upon the finding of the jury and must be decided upon this appeal. Preliminary to that decision, however, is the all-important inquiry whether there was a question of fact for the jury to decide, or whether a question of law only was presented. The rule of law upon this inquiry was thus stated in an early case:
“Where the facts are disputed, negligence is a question of fact for the jury; where the facts are undisputed, and but one deduction is to be drawn from them, it presents a question of law for the courts; but where the facts are undisputed, but are of such a nature that different minds will draw different conclusions from them as to the reasonableness and care of a party’s conduct, it is a proper question for the determination of a jury.” (K. P. Rly. Co. v. Pointer, 14 Kan. 37, syl. ¶ 8.)
Other statements of the principle have been made but the rule has not been departed from. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101; Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136; Chanute v. Higgins, 65 Kan. 680, 70 Pac. 638; Railway Co. v. Hanson, 67 Kan. 256, 72 Pac. 773; Cummings v. Railroad Co., 68 Kan. 218, 74 Pac. 1104; Railroad Co. v. Brown, 73 Kan. 233, 84 Pac. 1026; Johnson v. Railroad Co., 80 Kan. 456, 103 Pac. 90; Smith v. Street Railway Co., ante, p. 31, 136 Pac. 930.)
The evidence shows that one of the duties required of the brakeman by his employer was to eject trespassers and to keep them from riding on trains, and it seems that brakemen are presumed to have this authority. (K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 14 Pac. 172; U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; O’Banion v. Railway Co., 65 Kan. 352, 69 Pac. 353.)
In the Kelly case it was held that:
“It is within the scope of the general authority of a brakeman on a freight train to prevent trespassers from getting on the train, and to remove such persons who wrongfully get thereon.” (Syl. ¶ 2.)
A brakeman having authority to prevent trespassers from entering the train while performing that duty is engaged in the business of the company, or according to the usual phrase, acting in the scope of his employment. 'While so acting the company may be held liable for his wrongful acts. In order to create this liability it has been said:
“The act must be the result of doing the business of the master or parent, and not of an independent act done during a cessation, even momentary, of the doing of such business.” (Mirick v. Suchy, 74 Kan. 715, 718, 87 Pac. 1141.)
It is not sufficient to fix this liability that the employment afforded the opportunity to do the wrong, or that it was done during the employment, but it must be done in the course or within the scope of the employment. (Hudson v. M. K. & T. Rly. Co., 16 Kan. 470.) This is true although the act was intended to promote the master’s interest. (Crelly v. Telephone Co., 84 Kan. 19, 23, 113 Pac. 386.) In the following quotation from 26 Cyc. 1526, appearing in the case last cited, an endeavor is made to state the test of liability in such cases:
“The test is not the character of the act,.nor whether it was done during the existence of the servant’s employment; but whether the injury complained of was committed by the authority of the master expressly conferred or fairly implied in the nature of the employment and the duties incident to it.”
The test is also considered in 1 Thompson’s Commentaries on the Law of Negligence, § 526, in which the distinction is stated between acts done by the servant in pursuing his own ends, although done in the time covered by his employment, and those done in pursuance of his duty in the course of his employment. The author gives a quotation from the opinion in Morier v. St. Paul, Minneapolis & Manitoba Ry. Co., 31 Minn. 351, 17 N. W. 952, a part of which is :
“ ‘If the servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities, (p. 353.)’ ” (1 Thompson’s Commentaries on the Law of Negligence, § 526.)
Another author says:
“The simple test is, whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business; but, whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him.” (Master & Servant, Wood, 2d ed., § 307.)
It is difficult to state with precision the exact meaning of the phrase “scope of the employment” but from the foregoing expressions in decisions and textbooks it may be said generally that to fix liability upon the master or employer the act must not only be done in the time, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee’s own purpose or device, although in an interval of his regular service, the employer is not liable.
The application of the principles just stated remains. If upon the facts found and undisputed different minds might reasonably draw the conclusion that in pursuing the fleeing men, and shooting one of them in the circumstances stated, the brakeman was really attempting to do the service for which he was employed, the question was one of fact properly submitted to a jury. On the other hand, if the only reasonable deduction from the facts is that the brakeman in firing the shot was serving his own purposes only, without any intention of doing the duties incident to his employment, but moved by anger or other motive of his own, then only a question of law was presented. In support of the theory first mentioned it is argued that the exclamation “Go to hell,” uttered when the men reached the top of the bank, indicated an intention on their part to defy his authority and jump on the train when it should start; that this inference might be reasonably drawn from their conduct, and if the jury so inferred, then the weapon was used in- the course of his employment to prevent them from boarding the train. On the other hand, the defendant insists that no such inference is possible; that fleeing as the men were away from the train on the bank, eight or ten feet above, and forty-two feet from it, it is impossible that the brakeman should believe that they were still intending and would attempt to jump upon it. It, contends that the only reasonable deduction is that, angered by their defiant taunt, he rushed up the bank and fired the shot, not to keep them from the train, but to punish them for the insult, thus acting purely from motives of personal revenge or resentment. Here, as in so many other cases, the line of cleavage between, the duties of the judge and the jury must be determined. If the brakeman fired the shot while actually engaged in an attempt to discharge the duties devolving upon him, the company may be held liable for the wrongful act, however wanton or malicious, for it owes the duty to trespassers to refrain from wantonly or maliciously injuring them. (O’Banion v. Railway Co., 65 Kan. 352, 69 Pac. 353.)
After careful consideration we are constrained to hold that a candid mind acting normally could not reasonably infer from the facts presented in this record that the brakeman supposed or believed that these men fleeing as they were away from the train just about to start on its way, intended to suddenly turn back and board it. The fact that they were upon an embankment of considerable height and the train in the cut below between forty and fifty feet distant, and that their assailant not only climbed the bank but still pursued and fired while they were in flight, not toward, but away from the train, precludes a person whose mind is acting fairly and impartially from believing that the brakeman was acting within the scope of his employment when he fired the shot.
Courts should be careful not to encroach upon the province of jurors when the facts,- although undisputed are such that the minds of candid persons may draw differing inferences and arrive at opposing conclusions. This wholesome rule, however, should not be stretched so far as to relieve the court from the solemn duty of deciding the issue in cases like this where such divergence can not be found consistently with reason and justice. In such a situation the question is one of law only.
The judgment is reversed with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
Johnston, C. J.:
Mary E. McDanel brought this action to recover damages from John Whalen and his agent, Mathias A. Lohr, alleged to have resulted from misrepresentation and fraud of the latter in the exchange of properties. She owned city property in Salina, and Whalen owned land in Lane county, Kansas. An agreement of exchange was made and deeds of conveyance were executed and delivered, the deed from Whalen to McDanel conveying the northwest quarter of a certain section. She claims, however, that a different tract of much greater- value was pointed out to her as the land to be conveyed; that her husband, who was acting for her in the matter, was unacquainted with lands in that section of the state, or with the location and boundaries of the same, and that she was unaware that the land shown was not the land conveyed until some time after the transfer was made. It was further claimed that the land pointed out, which was a part of the northeast quarter of the section, was worth about $2500 more than the northwest quarter that was actually conveyed to her. A general verdict, as well as some special findings, were returned in favor of McDanel, the jury awarding her damages in the sum of $1000.
On this appeal it is contended that the court should have directed a verdict in favor of appellant, on the ground that appellee had received the northwest quarter, as she alleged, when she believed she was receiving the northeast quarter, whereas the testimony showed that she knew all the time that she was not to receive the northeast quarter. There is some confusion in the averments of the petition, but when all in the pleading are considered together it is apparent that no mistake could have been made as to the purpose of the pleader or the basis upon which a recovery was sought. In short, it was that appellant had defrauded appellee by conveying to her another and less valuable tract of land than that which was pointed out and represented to her to be the land owned by Whalen which was being conveyed to her. Appellee knew, of course, that Whalen owned the northwest quarter and the numbers of the land that was being conveyed, but the fraud was in representing to her that other and better land shown to her was the northwest quarter and the tract which was being conveyed to her.
It is contended that the evidence does not support the verdict and, further, that appellee’s evidence is inconsistent with the averments of hér petition as well as with the findings of the jury. The appellant Lohr took C. S. McDanel, who represented appellee in the transaction, out to see the Lane county land, and instead of going directly to the northwest quarter he drove north on the east side of the northeast quarter, which was owned by one Hallam, passing about a half mile east of the northwest quarter and about a half mile north of that quarter. There he turned about and started in a southwesterly direction with a view of going upon and inspecting the northwest quarter. In doing so they passed through a rough section of land over hills and gullies until they came to a fence which Lohr said was the north line of the northwest quarter. He stated that he took this indirect course in order that Hallam would not learn that a trade of land adjoining his own was in contemplation. According to- the testimony of appellee, Lohr told McDanel that a certain fence, which he pointed out and which was on the west side of the Hallam land, was the west line of the northwest quarter and that a certain ridge pointed out at a distance east of them was the east line of the northwest quarter. As a matter • of fact, the land pointed out -was the western part of the Hallam land and was a much better quality of land than that in the northwest quarter. It was admitted by Lohr after- wards that he took McDanel through the Hallam land, and the jury found that he made misrepresentations to McDanel as to the location of the northwest quarter, and, further, that it was with the intent to defraud appellee. The land pointed out to McDanel as the northwest quarter was, of course, much less than a half mile from the east line of the Hallam land and along which McDanel had traveled, and the Hallam house, which was near the southeast corner of that quarter, could be seen at several points on the route taken by Lohr and McDanel. It is insisted, therefore, that McDanel must have seen and understood the location and known that he was on the Hallam land and not on the northwest quarter. McDanel, however, accounts for his failure to observe the location and discover the deception by the fact that he was unfamiliar with that section of the country, and also that the wind was blowing at the time, carrying considerable snow and dust in the air, and, further, that he relied on the statements made by Lohr. In one part of his testimony McDanel spoke as if he had known that he was passing over the Hallam land, but there is some ground for the claim that he was speaking of what' he has since learned as to the boundaries of the quarter. There appears to be sufficient evidence to support the view that he was told and believed that the land pointed out to him constituted the northwest quarter of the section which was proposed to be conveyed to his wife.
It is next urged that error was committed in an instruction given to the jury in regard to the measure of damages. It was:
“Should your verdict be for the plaintiff, you are instructed that the measure of her damages would be the difference between the value of the said northwest quarter of said section 27, and the value of 160 acres of land of the character pointed out to McDanel by Lohr.”
According to the testimony, the land pointed out was represented to be a quarter section of land and to constitute the northwest quarter which was subsequently conveyed to appellee. There was misrepresentation as to quantity as well as to location. Appellee was entitled to recover the difference between the value of the quarter that she received and a tract of that quantity if it had been such land as was pointed out to her and which she was fraudulently led to believe was a quarter section. (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562.)
No material error is found in the rulings, and the judgment of the district court will, therefore, be affirmed.
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The opinion of the court was delivered by
Porter, J.:
In this action the servant recovered judgment for injuries caused by the failure of the master to comply with the provisions of the factory act requiring the guarding of dangerous machinery.
The main question raised by the defendant’s appeal is whether the action is barred by the one year’s statute of limitations, which provides that “an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation,” shall be barred within one year. (Civ. Code, § 17, subdiv. 4.) The answer depends upon whether the cause of action provided for by the factory act is- one for the recovery of a penalty-or forfeiture; in other words, whether the act itself is penal. .
The defendant calls attention to the case of Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, where it was held that neither contributory negligence nor assumed risk are defenses available to the master in an action to recover under the statute. Our attention is challenged particularly to certain expressions in the opinion in that case where it was said that the. act is a “police regulation adopted to reform the inhumanity of factory methods”; that the legislature, instead .of attempting to enforce the act by means of a criminal prosecution, saw fit to provide “a civil remedy-in damages,” and that the statute was adopted “as a means of enforcing a positive duty enjoined by law in the interest of public welfare.” Because of these statements in the opinion, and particularly because we there construed the act so as to permit an employee to recover for injuries sustained by a violation of its provisions, even though he himself was negligent, it is contended that the court has committed itself to the proposition that the act is penal in its nature. Counsel strenuously insist that the statements referred to were, made in the opinion in Caspar v. Lewin as grounds for upholding the constitutionality of the act; and it is intimated that, having so ruled in order to save the act from the charge of uncon'stitutionálity, we can not now, “without bending the law to suit the exigencies of each particular case,” do otherwise than declare the act to be penal.
In the briefs it is said:
“Counsel for appellee are asking this court to put itself in the abominable position of saying that this statute is a penalty to save it from unconstitutionality as it did say in Caspar v. Lewin, while at the same time saying in the case at bar that it is not a penalty in order to save this case from the bar of the Statute of Limitations.”
It may be remarked, in passing, that some of the arguments advanced in this case, like the arguments leveled against the power of the state to enact the factory law at all, would have carried far more persuasive force thirty or forty years ago than in this year of Grace; not because there has been any change in the principles of law which control in the construction of statutes, nor because the police power of the state has been enlarged. The state has always possessed the power to enact such a law. (Balch v. Glenn, 85 Kan. 735, 119 Pac. 67.)
The police power inherent in all government was just as broad forty years ago as it is to-day, but laws of this character were absent from the statute books because at that time public sentiment had not crystallized into a demand for their enactment. For instance, it is altogether probable that if congress had attempted forty years ago to enact the stringent provisions of the safety-appliance law’requiring interstate railways to equip their trains with safety devices for the protection of the lives and limbs of their employees, the law would have been declared unconstitutional. Yet only the other day the law was again upheld and at the same time construed as intended by congress to permit an employee who was injured by a failure to comply with its provisions the right to recover damages regardless of the ancient doctrine of “assumed risk,” and notwithstanding his injuries were occasioned by his “contributory negligence.” (St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061; and, see, Brinkmeier v. Railway Co., 81 Kan. 101. 105 Pac. 221.)
Society has made rapid progress in recent years in the development of humanitarian ideas and in a broader realization of the power of the state and the obligations resting upon it to enact laws to prevent the frightful toll of death and disability in hazardous occupations and in the use of dangerous machinery. Legislation has followed with somewhat halting steps, and the courts have quite generally responded to the awakened public conscience, albeit their progress has naturally been slower than that of legislatures.
We find no difficulty in determining that the statute is so far remedial in its character, notwithstanding some of its provisions, that the cause of action is not for the recovery of a penalty or forfeiture. And this we shall undertake to demonstrate, confident that it can be accomplished without embarrassment to the court, and, we trust, without bending the law to suit any supposed exigencies of this or any particular case.
It may be conceded that there is a conflict of authority in the various states as to whether such statutes should be regarded as penal, but it is not believed there is any conflict in the decisions of this court. "Actions to recover on statutes which allow double or treble damages, as for cutting or carrying away timber (Gen. Stat. 1909, § 9692), are held to be controlled by the one-year statute. In Sullivan v. Davis, 29 Kan. 28, it was said:
“Where more than actual compensation is asked, it is by virtue of some express statute, and the excess is by such statute given in the way of penalty.” (p. 34.)
Actions brought under the statutes for failure to comply with a proper demand for the release of mortgages are barred by the one-year limitation, because the plaintiff in such a case is permitted to recover the sum of $100 and attorneys’ fees without regard to whether he has been damaged at all. The right to recovery under - such statutes has been held penal and not in any sense compensatory. (Hall v. Hurd, 40 Kan. 374, 19 Pac. 802; Joyce v. Means, 41 Kan. 234, 20 Pac. 853; Wey v. Schofield, 53 Kan. 248, 36 Pac. 333); and so the statute providing for amercing a sheriff for failure to execute process (Civ. Code, § 743) has been held penal and not compensatory, for the reason that the delinquent official may be amerced in a sum not exceeding $1000, in addition to being liable for any injuries sustained by the aggrieved person. See, also, Beadle v. K. C. Ft. S. & M. Rld. Co., 48 Kan. 379, 29 Pac. 696, where judgment against the plaintiff on a demurrer to his petition was affirmed on the ground that his action was barred by the one-year statute, the action being to recover a forfeiture of three times the actual damages sustained. It was a penalty allowed against a railroad for charging one person more than it charged others for the same service. In Milling Co. v. Railway Co., 82 Kan. 256, 108 Pac. 137, the one-year statute was applied to an action under the demurrage statute, which provides that a person injured by the failure of a railway company to furnish cars may recover as exemplary damages the sum of $5 per day for each car. The statute was held not merely compensatory but penal.
This court has uniformly refused to enforce wrongful death statutes of other states providing for a fixed recovery or nothing, regardless of actual damages. (Hamilton v. H. & St. J. Rld. Co., [1888], 39 Kan. 56, 18 Pac. 57; Dale v. Railroad Co., [1897], 57 Kan. 601, 47 Pac. 521; Matheson v. Railroad Co., [1900], 61 Kan. 667, 60 Pac. 747; Rochester v. Express Co., [1912], 87 Kan. 164, 123 Pac. 729.)
In Frame v. Ashley, 59 Kan. 477, 52 Pac. 474, the three-years statute of limitation was held to apply to an action against a bank- officer for receiving deposits in an insolvent bank where the purpose of the action was for recovery of the deposit. The sole question there was whether the action was upon a “liability created by statute,” or “upon a statute for penalty or forfeiture.” In the opinion it was said :
“The general rule is that' a statutory obligation to pay damages which the common law does not give is ‘a liability created by statute/ where the damages awarded are limited to compensation — limited to an amount which merely .makes the injured person, whole. The general rule also, is that a statutory obligation to pay an amount beyond compensation, to submit to more than the simple redress of the wrong done, to pay riot merely in respect of the deserts- of the inj ured person but as punishment for the wrong done, is- a penalty. Tested by these.simple rules the case is easy of solution.” (p. 478.)
Referring to the statute giving, a ■ mortgagor the right to recover one hundred dollars for failure to release a satisfied mortgage, the opinion said: ’ ■
“There is no analogy between these statutes and the one under • consideration. The latter gives ■ .compensation — nothing more, and permits nothing less. - The former gives a fixed sum irrespective of the damages actually sustained. Damages from failure to enter satisfaction of á mortgage may be very great. It may be that none whatever occur. Whether great or small, or none at all, the amount recoverable is fixed arbitrarily at one- hundred dollars.” (p. 480.)
The conclusion' reached was' that the statute imposed a liability for compensation-only, that it-was remedial, and therefore not barred by' the one-year statute.
The court quite recently had before it the question whether a Colorado statute was penal - in the international sense, so that it could not be enforced here.(Machinery Co. v. Smith, 87 Kan. 331, 124 Pac. 414.) The statute imposed a liability upon stockholders of a Colorado corporation, and it was sought to-maintain an action in the courts of Kansas, to recover thereon. Notwithstanding the fact-that the Colorado courts had already declared the statute to be- penal in the sense that it was barred by a statute of limitations similar to the one involved in this case, we held that the action might be maintained for the reason that the statute authorized an individual who had' sustained a loss by its violation to recover compensation. The opinion was placed squarely upon the well-recognized distinction between a statute entirely penal and one which is in part remedial. In the opinion it was said:
“The statute is beyond doubt penal in a certain sense. And it has often been broadly stated' that a penal statute has no extra-territorial force, and will not be executed by the courts of another state or country. A distinction has been made, however, between statutes which are entirely penal, their sole purpose being to punish a violation of the law for the public benefit, and those which are in part compensatory, the violator being required to make good to an individual a possible loss having some connection with his default. It is universally held that statutes of the former character can be executed only by the sovereignty enacting them. But by the weight of later authority, and as we think by the better 'reason, actions may be maintained anywhere to enforce the liability to an individual, created by statutes of the latter kind. Cases on both sides of the question are collected in 1 Cook on Corporations, 6th ed., § 223, pp. 586-588; and in 3 Clark & Marshall on Private Corporations, § 833.” (p. 332.)
The opinion cites, as the leading case on the subject, Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, and quotes from the opinion in that case,, where it was said, referring to statutes which are in part compensatory:
“ ‘As the statute imposes a burdensome liability on the officers for their wrongful act, it may well be considered penal, in the sense that it should be strictly construed. But as it gives a civil remedy, at the private suit of the creditor only, and measured by the amount of his debt, it is as to him clea-rly remedial. To maintain such a suit is not to administer a punishment imposed upon an offender against the state, but simply to enforce a private right secured under its laws to an individual. We can see no just ground, on principle, for holding such a statute to be a penal law, in the sense that it can not be enforced in a foreign state or country.’ (p. 676.)” (p. 334.)
In The State v. Pfefferle, 33 Kan. 718, 7 Pac. 597, suit was brought under section 4373 of the General Statutes of 1909 to recover a fine and costs taxed as a lien upon real estate where the owner, had unlawfully permitted the sale of intoxicating liquors. The trial court held the action barred by the one-year statute. The judgment was reversed, and it was held that the action was upon “a liability created by statute” and not an action for a penalty or forfeiture. Other Kansas cases to the same general effect are: Durein v. Pontious, 34 Kan. 353, 8 Pac. 428; The State v. Snyder, 34 Kan. 425, 8 Pac. 860; Snyder v. The State, 40 Kan. 543, 20 Pac. 122; The State v. Alexander, 84 Kan. 393, 114 Pac. 241.
The Durein case was a suit under section 4370 of the General Statutes of 1909 by minor children to recover damages on account of liquor sold to their father. The judgment was reversed upon another point; but in the opinion the court ruled that the action was not one for a forfeiture or penalty, and was therefore not controlled by the one-year statute. Cases from other courts directly in point are: Coy v. Jones, 30 Neb. 798, 47 N. W. 208, 10 L. R. A. 658; State v. A. C. L. R. Co., 56 Fla. 617, 47 South. 980; Woolverton et al. v. Taylor et al., 132 Ill. 197, 23 N. E. 1007, 22 Am. St. 521; Bell v. Farwell, 176 Ill. 489, 52 N. E. 346, 68 Am. St. 194; Gardner v. N. Y. & N. E. R. R. Co., 17 R. I. 790, 24 Atl. 831; Hornor v. Henning et al., 93 U. S. 228, 23 L. Ed., 879; see, also, Sutherland on Stat. Const., § 208, and cases cited.)
In Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, the court was not considering the question of limitations, and there was no intention in any of the language there used to declare that a cause of action under the factory act is for the recovery of a penalty or forfeiture. While the public derives a benefit from the enforcement of the law, the immediate purpose of the statute, so far as it allows the injured party to recover, is to afford compensation. Under the authority of A. T. & S. F. Rld. Co. v. King, 31 Kan. 708, 3 Pac. 565, the action is controlled by the third subdivision of section 17 of the code, and must be brought within two years, being an action “for injury to the rights of another not arising on contract,” and not enumerated in the subsequent clauses of the section.
The verdict of the jury was in favor of the defendant railway company, and against the defendant A. C. Battelle, and he is the only appellant. As against him, the action was brought within less than two years from the time it accrued, excluding the periods during which he was absent from the state.
There remain for consideration some complaints of error in the admission of evidence and in the instructions; and the further contention that on the undisputed evidence a verdict should have been directed for the defendant. We deem it unnecessary to enter into a minute description of the machine at which the plaintiff was injured. It was a new machine of the latest and most modern type of construction, and had only been installed about two weeks. It was known as a “20-12 Boss planer,” the figures indicating that it was designed to plane a timber with the maximum thickness of 20 in. by 12 in. The knives were on “cylinder heads” located inside the external frame work on the bed of the machine, and moved at the rate of 3000 revolutions a minute. The timber was fed into the machine from one end automatically so that a person was in no danger of coming in contact with the knives while feeding the 'machine. Under the cylinder heads there was a spiral trough into which the shavings were thrown by the current of air created by the revolving knives, and the shavings would be discharged at one side of the machine.
The plaintiff was thirty-seven years of age; had worked in different shops, and had been working at this plant about seven months. He was in sole charge of the machine and of the men who were assisting him. On the day of the accident a pile of shavings on the floor was permitted to grow to such dimensions that the shavings did not escape from the trough and the machine became clogged. The plaintiff took an air hose to which an iron nozzle was attached and which, was connected with a compressed air system; and for the purpose of blowing the shavings away from the upper knife head, and without stopping the machine, stood near the machine, and with the nozzle in his left hand directed the air blast against the revolving knives. While doing this the nozzle in some way became entangled in the knives and his left hand was'drawn in and cut off at the wrist.. , .
As before stated, the machine had been installed but a short time, and one of the parts known as the “shavings exhaust” had not been placed upon it at the time the plaintiff was injured, It was placed thereon soon after the accident occurred. The testimony shows that this shavings exhaust consisted of a metal pipe or iron boxing running- up from above the knife heads to a fan and that the exhaust of air carried the shavings away from the top of the upper knife head. Directly over the knife heads there was an iron flange upon which the hood or boxing of the exhaust was intended to rest. The fan and some portions of the material for the construction of the shavings exhaust were in the shop; other parts were missing, and because another planer had broken down the new machine was started in operation without waiting until the material for the exhaust arrived, and had been operated for two weeks without a shavings exhaust. It was shown by plaintiff’s evidence that the hood of the exhaust, if it had been in place, would have set down over the knife heads like a box. “When it -is down it completely covers the knives of the upper head.” The contention is. made that the undisputed evidence shows that it was not practicable to guard the knives against such an operation as the plaintiff was attempting to perform. We think the undisputed evidence is clearly the other way. Mr. Battelle was a witness and was very fair and frank in his testimony. While he testified that the only reason considered in going to the expense of installing the shavings exhaust system was an economic one for saving the cost of labor in carrying the shavings away, he was asked whether it serves as a guard or acts as a guard over the upper knives. His answer was: “It is a guard, of course, so long as it is down over the head and in its place on the bed; as long as it is not removed it covers the knives so they can not be reached.”
He also testified that the usual method of removing shavings that have accumulated on the knives is to use the air blast. Witnesses for the plaintiff testified that the effect of having the shavings exhaust in its place was that it served as a guard, or in other words, while it was in place it would be impossible for an accident such as that by which the plaintiff was injured to occur. In addition, there was testimony of the plaintiff tending to show that it was practicable to guard the machinery by other devices; and all of this was a question for the jury, if there had been no testimony at all upon that subject. (Bubb, Adm’x, v. Railway Co., 89 Kan. 303, 131 Pac. 575.) It is wholly unimportant that the main purpose of the shavings exhaust was to carry away shavings from the knife heads. 'The evidence conclusively shows that if it had been in place it would have covered the knives so that this accident could not have occurred.
In Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, it was expressly ruled that the burden is upon the defendant under the factory act to prove that it was not practicable to guard the machinery. We are not inclined to reconsider that ruling or to restate the principles upon which the decision rests.
But the ingenuity of counsel is not satisfied with the general contention that it was impracticable to guard these knives nor with the claim that the shavings exhaust was not intended as a guard. It appears from the evidence that the hood of the exhaust is designed to be raised and lowered as occasion may require, by means of a rope and pulley; and evidence was offered tending to show that, even with the exhaust system in operation, the knives sometimes became clogged with shavings, especially when wet or very heavy lumber is being planed, and that when this occurs it is customary to raise the hood, stop the machine and use the air blast to blow the shavings away. It is urged that by neglecting to keep the pile of shavings away from the trough the plaintiff had created a situation in which it would have been necessary for him to raise the-hood in order to dislodge the shavings; and that if in such a situation he had attempted this without first stopping the machine the injury would have occurred in the same way. In support of this contention, the recent case of Weeks v. Packing Co., 90 Kan. 365, 133 Pac. 713, is cited. There the action was under the factory act for failure to guard an elevator. It was necessary for the’ plaintiff to gain access to a fuse box in the elevator shaft. The shaft was protected by a movable horizontal bar. He testified that the bar was down at the time of the accident; that he put it down himself; that it was about three feet from the’floor, and that while he was leaning over the bar and examining the fuse box, the elevator was lowered from the floor above and injured him. It was held that under the facts of that case there was no evidence that the failure to enclose the-elevator contributed to his injury. It was suggested in the opinion that had the elevator been enclosed with a door he would have been compelled to open it in order to reach the fuse box and to’ have stood partially at least over thé shaft.
A rehearing has been granted in that case and therefore the defendant can not rely upon it as authoritative. However, the principles upon which it was decided can have no application to the facts in this case. The defendant’s contention rests merely upon a theory as to what might possibly have occurred if the knives had in fact been guarded by the presence of the hood,.-and plaintiff had removed the protection. The application of the factory act must be determined upon the undisputed facts as they exist, instead of upon pure speculation of what might have happened upon a wholly different state of facts.
It does not appear that the plaintiff was allowed to state his conclusions respecting either the practicability of guarding the machine or that the hood was installed or intended as a guard. He, as well as the defendant and other witnesses, testified that it served the purposes of a guard when in place. It was not contended at the trial that the sole purpose of its installation was to provide a guard; nor indeed was it necessary to show that such was its purpose. As we have seen, the intention with which it was installed was not controlling, since it conclusively appears that the machine was designed to have such a device and that when installed it served the purpose of a guard. Moreover there was evidence from which the jury could have found that it was practicable to guard the knives by other methods and appliances.
The court properly instructed that the plaintiff could not recover if the jury found from the evidence that it was impracticable to guard the knives so as to prevent the occurrence of the accident. Contributory negligence is not a defense under the factory act (Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657); and it was not error to refuse to submit to the jury the question of whether the plaintiff was. negligent. If the direct cause of the injury was the failure to provide a guard, his negligencé could not have been more than a contributing cause. .What has been said respecting the various contentions of the defendant makes it unnecessary to consider in detail the objections .urged against other instructions. . It is sufficient to say that the instructions fairly, defined.the issues-
We discover no. error in the .record and the judgment will be affirmed. . ....
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment for electric power furnished by the plaintiff, who alleged a right to recover both on contract and on quantum meruit. The defendant denied that the contract was authorized, but the court expressly found that it was. While testimony was offered as to the value of the power furnished, no finding as to this was made. The plaintiff contends that the finding of authority was unsupported by and contrary to the evidence. The other side maintains that it was well sustained, and that in addition the testimony showed the plaintiff entitled to recover on the quantum meruit theory and that the general conclusion of law in favor of the plaintiff must be presumed to have embraced this feature of the case.
If the finding in regard to the contract is in fact justified by the evidence, no further inquiry need be made. It was signed “The Eureka Mining Company, Consumer. By A. 0. Ihlseng,” and was executed January 18, 1910. The question turns upon the authority of Mr. Ihlseng. It appears that in January, 1910, an agreement was made between the Campbell Investment Company and Mr. Ihlseng, who had acquired leases to certain mining property in Cherokee county, that the Campbell Investment Company should furnish money to construct a mill upon the leased property, which property was to be turned over to a mining company to be organized, Ihlseng to have one-third of the $150,000 capital stock. The company was organized under the laws of Maine in February, 1909. October 9, 1909, Ihlseng and wife and the Campbell Investment Company, by joint instrument, conveyed to the Eureka Mining Company their interests in the mining property, the acknowledgment not being completed until January 19,1910. Early in 1909 Ihlseng took charge of the construction of the mill on the mining property, pursuant to instructions from the Campbells, who fur nished the funds as they were needed and kept up a correspondence-with him during-the progress- of- the work. .-At a meeting-of--the mining company at Portland, Maine, February 8,-19-10-, .Mr. Ihlseng-was recorded as voting five thousand shares by proxy, and-at the.same meeting he.was elected one of the five directors- -It. was also voted to- ratify and .endorse the transactions -of the board for. the-past year. The minutes recited the contract for the. purchase,, development and improvement of the Kansas mining property,, the sinking of a, shaft thereon, and .the- construction, and equipment of. a double-mill thereon , of the capacity of BOO -tons per -shift; also, the transfer of the leases, the improvement and development thereof, and the issuing of 14,990 shares of-stock in payment therefor;1 “And whereas1, the said property.has been, developed and improved, and the said leases transferred to-the company; And whereas, it is .the opinion ,of the stockholders of this.company- that- the said deal was',to. the best interest of,this company; No^y therefore, be it resolved,, that, the-said contract, of purchase and for-the development and improvement of said property, be, and the- same is hereby ratified, and the. acts of the-board of directors- in entering.-into the same and in carrying the.said contract (into) effect, and the-issuance of the capital stock of. this company to the extent aforesaid, and all the acts of .the-board• of directors.of this company and of its officers, in.and about the same, be, and the same are, hereby approved,.ratified.and confirmed,” At a meeting of the directors, held at Chicago, March 19, 1910, salaries of -the-officers-of the company for the ensuing year were discussed but not fixed, except that of Mr. Ihlseng as general manager or superintendent, which was. fixed at $200 a month, payable monthly, until the same might be changed“The salary of. Mr., Ihlseng of Two Hundred ($200) Dollars per month-heretofore paid was .approved and- the officers’ acts in making such payments were duly ratified.” The office- of general manager was created and the duties of the same fixed as' the superintendence of the company’s mining property near Galena, Kan., and Mr. Ihlseng-was elected to fill such place at the pleasure of the board, and accepted. January 15, 1910, The Campbell Investment Company, by D. C. Campbell, president, enclosed -to Mr. Ihlseng 5000 shares of stock in the Eureka Mining Company, “according to the agreement made with you over a year ago, in reference to a Company to be formed by myself.” Mr, Ihlseng remained in charge of the mining property until in July, 1910. He testified that at the date of the execution of the contract he was in charge of the Eureka Mining Company in Galena and had been for about a year prior ■ thereto; that he was in charge of the building of the mill on the property,- pursuant to instructions by Mr. Campbell, one of the officers of the company; that he had charge of employing labor and purchasing supplies, Mr. Campbell having something to say about the property, he, Ihlseng, being'on the ground in charge of the work. When funds were received from Mr. Campbell, Ihlseng deposited them and paid bills therefrom, and notified'Mr. Campbell when he needed more. D.- C. Campbell was president, and C. P. Campbell treasurer. That he executed the contract on behalf of the company and was authorized to do any and all things in the operation of the company; that he was to turn over to the company the mining leases and to have one-third of the stock,, and the Campbell Investment Company was to furnish $30,000, the property to be turned over to the Eureka Mining Company as a developed property; that in January, 1910, he discussed with the Campbells, in Chicago, the proposed contract with the electric company, and,one of the directors, Mr. Payne, objected that the company ought not to pay for electricity not consumed; that the matter was finally decided in a general conversation with Mr. Campbell; that the kind of motive power that should be used was the subject of discussion every time he met Mr. Campbell; that he consulted with Mr. Campbell about purchasing thé electric machinery, and generally kept him advised as to the operations of the Eureka mines. “Sometimes I advised him before the doing and sometimes after, because, as Mr. Campbell said, I was on the ground and was the best judge of conditions.” In a letter from C. P. Campbell, January 7, 1910, in which a desire to see production begin at the earliest possible moment was expressed, reference was made to Ihlseng’s supposed decision to buy a Miller gas engine: “I would not delay this matter any length of time. We, at this end, can not decide the question, for we do not know all the conditions and circumstances that enter into it and hence, we will have to depend upon you to decide it, and I would do it at once.” In a letter written in December, previous, preference for a motor instead of a gas engine had been expressed by Mr. Campbell, and the letter closed with the statement that the writer would keep the power contract, which seemed to be a fair one, “even adding the $150 per month maintenance charges, and shall await hearing from you further in reference to the whole subject before writing you definitely.” January 20, 1910, two days after the contract was signed, C. P. Campbell wrote:
“In reference to the motor which you say will be ready the first of February: Was this the 100 H. P. motor you spoke of in your letter of November 6th which the General Electric promised to deliver to you F. O. B. Kansas City, $1080.00? I know we have been rather up in the air on this motor question and I trust that we will' have this motor delivered promptly so as to have no hitch there.”
The plaintiff’s general manager testified that when the bill sued on was discussed with Mr. Campbell after the action was begun no objections were made on the ground of any lack of authority on the part of Ihlseng to sign the contract. The witness knew that Mr. Ihlseng employed and discharged men and purchased material and “was the sole representative of the Eureka Mining Company in that district.” It was shown that employer’s liability and fire insurance was taken out by Ihlseng in behalf of the company. Hardware was purchased by him, and lumber, and were paid for by the Chicago office or by Mr. Campbell. Mr. C. P. Campbell testified, among other things: “All the time this mill was being built and operated, while Mr. Ihlsengwas there, he purchased all the supplies that were used. He was the man on the ground there and made all the contracts that were made.” On redirect examination he said that he meant by this that Ihlseng was acting under the old Campbell Investment Company and not on behalf of the Eureka Mining Company, but that “While he was connected with the Eureka Mining Company and before he became an officer of the company, Mr. Ihlseng’s duties were as a sort of superintendent on the ground and hired and discharged the men.”
Much more could be quoted in'support of the finding made by the trial court, and while there was considerable evidence to the contrary a fair deduction from it all is that Ihlseng was to put in the leases and the Campbells to put the property in shape to be productive, when it was all to be turned over to the Eureka Mining Company, Ihlseng to have one-third of the stock. While the work was going on the corporation had been organized and was holding meetings, and among other things done by Ihlseng to get the property in shape to be productive was the signing of the contract sued on, which had been subjected to considerable discussion with other members of the mining company, and the results of which were received and accepted for a long time after actual possession was taken by it. The bill for the service involved in this action, so far as the maintenance charge of $150 a month is concerned, covers the time from July, 1910, to April 15, 1911, inclusive. This fixed maintenance charge is the matter over which all the contention- arises. The pres enf .officers of.the,company must have known that the plant was being operated by electric -power furnished by the..plaintiff, and they certainly- knew that the former superintendent - in charge , had dealt with the electric company in respect -thereto. But aside from the knowledge of the situation, actual .and presumptive, .possessed by the defendant’s, other officers, Ihlseng was not the-mere agent of-the Campbell Investment Company as now- claimed.- He was also a third contributor to and owner of the property and stock of the mining company-as well as its superintendent, and in fact its general manager.- For while the office of .general manager was - not -expressly created and -a monthly salary of $200 fixed' until. March--19,. still-' on- that date the' previous payment-of the same salary was-approved, and his future duties- were prescribed -as the superintence of-the -property-^precisely what they had been before; so that he is shown to have been acting in the' capacity of general manager--whatever-word he used to define his position: He- had' been, placed in charge to hasten;-the day when the.property could-become productive.- ! Locally he was the-company’s solé • exponent, and representative. - - The will of the other owners had united with his in placing' him in' this situation for their common advantage. • He was one-third of the body corporate, and the other -two-thirds could not say “We have no need of. thee.” While the-formality of actually transferring the title to the developed- property -over to the company was 'not- observed until February 8, 'still on January- 18, previous, when the contract was executed-, the Eureka Mining Company was substantially and essentially its-owner, possessor'and operator."
A careful consideration-- of the entire record leaves us -so -convinced that the trial" court’s finding was correct that it' is not' deemed necessary to discuss any of the numerous authorities cited in the briefs. Were it a question of ratification only, such discussion might be necessary, but the case is one of original authority followed by abundant knowledge, recognition and acceptance. • • '
The judgment, is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This action was brought by a passenger upon the defendant’s railway to recover damages for personal injuries suffered through the alleged wanton conduct of its conductor and motorman in ejecting him from a car.
The plaintiff, a paper hanger, fifty-three years of age, entered the car about ten o’clock in the evening, at a street intersection in Kansas City, to go to his home at Northwest crossing. At Welborn, while being ejected from the car, he was injured upon his head, back and shoulders by colliding with the street pavement. Evidence on his part tended to prove facts as follows: The conductor took from his book of commutation tickets a ticket good for a continuous ride to Northwest crossing. After changing cars at Chelsea Park, the conductor of the car to which the change was made called for his fare and was informed that his ticket had been taken up on the first car. The conductor insisted that another ticket should be given up or fare paid, but the plaintiff declined to do so. After some parleying the conductor passed on, making collection from other passengers, and then returned to the plaintiff and again demanded a ticket or fare. The plaintiff still refused. The car was stopped at Welborn, and the conductor then called to his assistance the motorman, who seized the plaintiff by the collar to ej ect him. He resisted removal by holding to the back of the seat in front of him as best he could while holding some parcels under each arm, and protesting that he should not be put off, because he had paid his fare. The motorman, however, forcibly took him to the platform at the rear of the car, kicked and pushed or threw him violently to the ground. His head and shoulders struck the pavement, causing severe injuries. He was left unconscious, lying in the roadway, while the car moved on a short distance. Upon an exclamation of a passenger that the man had been killed, the conductor stopped the car, and with the motorman went back and pulled the plaintiff, then lying near the track, to the roadside and left him there, apparently still unconscious. They then returned to the car, which moved on. Sometime afterwards the plaintiff’s son came with a wagon and took him home.
On the other hand, evidence was given tending to. show that the plaintiff was intoxicated; that the first conductor did not take up his ticket, and when the payment of fare or a ticket was demanded he became abusive, and when the motorman was called used vile and profane language, created a disturbance, and fought the motorman; that the employees used no unnecessary force, and ejected him only after he had repeatedly refused to give up a ticket or pay fare or leave the car, and that when forced out to the platform he suddenly broke loose from the hold of the motorman, who was about to lead him down the steps, and this caused him to fall to the ground.
The material facts found by the jury in answering special questions are:
“About how frequently had he been in the habit, of riding on said cars between said points during the time stated above? Ans. About 3 to 5 days per week.
“Did the plaintiff have a commutation ticket book containing tickets entitling him to ride from Kansas City, Kansas, to N. W. Crossing? Ans. Yes.
“Did the plaintiff still have this commutation book with tickets in it, when he boarded the second car? Ans. Yes.
“When the conductor on the second car reached the plaintiff did he ask him to let him see his commutation book? Ans. He asked for ticket.
“Did the plaintiff refuse to let him see it? Ans. Yes, he said he had paid his fare.
“Was the plaintiff under the influence of intoxicating liquor at that time ? Ans.. Slightly intoxicated.
“Did he use profane language to the conductor? Ans. He used the word ‘Damn.’
“Did the conductor tell the plaintiff that he would either have to pay his fare or get off said car? Ansi Yes.
' “Did the motorman assist the conductor in putting the plaintiff off said car? Ans. Yes.
“Did the conductor call for the assistance of the motorman? Ans. Yes.
“Did the plaintiff resist both the conductor and motorman? Ans. He held onto seat.”
The jury were instructed that:
“The plaintiff had no right to insist on riding on the car of the defendant company . . . without giving him the proper ticket or producing evidence that he had paid his fare, or without paying his fare, in violation of the regulations of the company; he had no right to resort to force to compel the performance of the contract, and when he failed and refused at the request of the conductor to either give his ticket or pay his fare to the conductor or produce some evidence in accordance with the regulations of the company that he had paid his fare, he should have gotten off the car when ordered by the conductor to do so; and he had nó right to invite force in his rejection or removal, by refusing to leave the car when so ordered by the conductor, merely to make a case against the company, or to increase his damages.”
The court also instructed the jury that if the plaintiff so refused to pay fare, or produce evidence of previous payment, and refused to leave the car, stopped for that purpose, when he was told to get off, that he then became a trespasser and the conductor or motorman had the right to eject him, “but in so doing they should not use unnecessary force or excessive violence; if, however, you. believe the plaintiff forcibly resisted being put off the car, he can not recover for the force used in overcoming his resistance, where such force is without intention on the part of the conductor or motorman, or both, to commit unnecessary injury. In such case the defendant is only liable for such unnecessary force or excessive violence as is willful, wanton or malicious.”
It is not disputed that the plaintiff was in the wrong in refusing to pay fare and in resisting removal from, the car. The rule, as stated in the instructions, that a passenger should in such a situation pay the .fare demanded or leave the train when ordered to do so, when stopped at • a suitable place for that purpose, is not questioned by the plaintiff. (A. T. & S. F. Rld. Co. v. Gants, 38 Kan. 608, 17 Pac. 54; A. T. & S. F. Rld. Co. v. Hogue, 50. Kan. 40, 31 Pac. 698; Chase v. Railway Co., 70 Kan. 546, 79 Pac. 153; Mosher v. St. Louis &c. Railroad Co., 127 U. S. 390; Hale on Bailments & Carriers, § 109; Hutchinson on Carriers, § 580.)
The plaintiff rests the recovery upon the principle that although he was in the wrong or even a trespasser after refusing to pay fare, still the company had no right to inflict wanton injuries in ejecting him. In Railroad Co. v. Day, 68 Kan. 726, 75 Pac. 1021, the rule, supported by citations of other decisions of this court, is stated as follows:
“The rule of liability in such cases is, that a railroad company is liable in ejecting trespassers from its trains when in doing so it is guilty of wilful or malicious acts amounting to wanton negligence.” (p. 730.)
The charge of wanton-and willful injury was made in the petition, that issue was plainly submitted in the instructions, and was determined by the jury, by the general verdict, in favor of the plaintiff upon competent evidence,
Several errors are alleged. An objection was made to an affidavit read in evidence which had been taken and filed pursuant to section 350 of the civil code, but nothing substantial appears in the objection.
Error is alleged in the order overruling a demurrer to the plaintiff’s evidence and in denying a request for an instruction to find for the defendant, based upon the contention that there was no evidence of wantonness on the part of the company’s employees. Little comment is necessary. Granting that the plaintiff was as intoxicated and behaved as badly as claimed, still it may not have been necessary to throw him from the car upon the pavement and leave him injured and unconscious by the roadside. Yet the evidence tended to prove that this was done. True there was evidence tending to prove that he was not thrown off, but fell in consequence of his own wrongful struggle and resistance, and that no unnecessary force was used, or wanton violence done in ejecting him. Upon this conflict in evidence it was for the jury to determine what the facts were and whether wanton or malicious injuries were inflicted.
The instructions are criticised on the ground that taken as a whole they required of the defendant a degree of care impracticable in the circumstances, and did not properly state the effect of the unlawful conduct of the plaintiff. One of the instructions informed the jury that when the plaintiff entered the car he became a passenger and the company owed him the highest degree of care in protecting him from violence or injury, but in immediate connection they were also told that upon his failure to pay fare or surrender another ticket when demanded the employees of the company had a right to eject him. The statement of his rights as a passenger were qualified by a declaration of the right of the company to eject him upon his failure to observe a passenger’s duty. The suggestion that the jury might have understood that the highest degree of care implied a duty to call the sheriff to remove the passenger is not persuasive, for the jury were repeatedly told that the conductor and motorman had the right to put the plaintiff off on his refusal to pay fare.
Another instruction defined at length the duty of railroad companies to protect passengers from violence and insult, and to employ competent and sober men. This was objected to as being outside the issues. As there was no evidence of incompetency or misconduct of employees except in ejecting the plaintiff, this instruction might well have been omitted. In view of the careful manner, however, in which the real issue was presented, no prejudice could have resulted from it. As already shown, the jury were told that if unnecessary force was used in pulling the plaintiff off the car, still the company was not liable if it was done without intent to commit unnecessary injury.
Other objections to the instructions have been carefully considered, but they appear to be unfounded. While they are lengthy, the real issue, whether the injuries were inflicted wantonly or maliciously, was clearly presented, and we believe was fully understood and decided by the jury.
It is insisted that passion and prejudice of the jury is shown in the allowance of $500 exemplary damages. As the right to exemplary damages was based upon the wanton conduct of the employees, already discussed, and the amount does not necessarily indicate any improper motive, this objection can not be sustained.
The following cases, among others, decide principles supporting the recovery in this action: K. P. Rly. Co. v. Kessler, 18 Kan. 523; K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 14 Pac. 172; U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Railroad Co. v. Little, 66 Kan. 378, 71 Pac. 820; Railway Co. v. Wade, 73 Kan. 359, 85 Pac. 415; Harbert v. Street Railway Co., post; Podespik v. Worcester Consol. St. Ry. Co., [Mass.] 103 N. E. 638.
The judgment will be affirmed.
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The opinion of the court was delivered by
BENSON, J.:
This is an action for specific performance of a contract for the sale of land. The defense is based upon the alleged fraud of the defendants’ agent in negotiating the sale. A demurrer to the defendants’ evidence was sustained and they appeal.
The defendants’• evidence tended to prove the following facts: They authorized J. E. Bocock, a real-estate agent, to find a purchaser for their farm at the price of $7500. The agent afterward came to the farm, accompanied by .the plaintiff. After looking over the place he came into the house, leaving the plaintiff out-' side, and told the defendants that he had brought a man to buy the farm; that he had talked a good deal with him and could not get their price but had succeeded' in obtaining an offer of $5000. This offer was at once declined, and the agent then went out to the roadside one or. more times during the negotiations and talked with the plaintiff, and finally returned to the house and said that he, the agent, would give $6500 for the place net, clear of all expenses, and would himself sell it to the customer for $7000. This disposition, if carried out, it will be seen, would have given the agent $500 compensation for his services. The fact was, however, that, the plaintiff had offered the agent $7000 for the farm, but this offer was not made known to his principals. . On the contrary, when Mr. Weesner said that he would go out and talk with the customer the agent persuaded him not to do so, saying that it would spoil the trade, thus keeping the defendants in ignorance of the offer. After the defendants had consented to take $6500 net for their farm, the agent went out again ’ and said to the customer: “There is just $200 between us” which the plaintiff then agreed to pay to the agent in addition to the $7000. The plaintiff was then brought into the house by the agent and introduced to the defendants, and at the' agent’s suggestion the parties arranged to meet in town to have a contract written. This was done on the same day, and the contract was signed by the parties for the sale of the farm for $7000, $100 being paid down. The $100 was borrowed by the plaintiff from the agent, to whom the plaintiff gave his note for $300 to secure the repayment of the $100 borrowed and the $200 he had agreed to pay the defendants’’ .agent.
A few days after the contract was signed the defendants learned for the first time that the plaintiff had offered $7000 for the place before their agent had made the proposition to pay them $.6500 for it, and that after making that offer the plaintiff had agreed to pay the agent $200 in order to get the place. The abstract recites that after being told that the defendants had paid their agent $500 commission, the plaintiff said to one of defendants’ witnesses:
“I am paying him $200.00 ... I had offered him $7000.00 for the place and those other items mentioned in'the contract, and Mr. Bocock had come back to me, returned after the conversation, with the folks, meaning Mr. and Mrs. Weesner, and said there was just $200.00 between us, and I said, well, if that is the case I will pay it.”
Again, it is recited that the plaintiff said to Mr. Weesner, when he complained that they (the defendants) had been wronged, that he was paying the agent $200 for commission for buying the place for him, and that the agent held his note for it and for the $100 borrowed. This conversation was about fifteen days after the trade and was the first information the defendants received that the plaintiff was paying their agent a commission.
While there are some other details the foregoing are the material facts as shown by the evidence. The transaction amounts to this. The defendants’ agent had obtained an offer of $7000 for the place, which he concealed from the defendants, informing them only of an offer of $5000, or of $6500 if the proposition to pay that sum himself should be construed as indicating an offer by the plaintiff. Being informed by the defendants’ agent that there was still $200 between the parties, the plaintiff paid that sum as compensation to the defendants’ agent to obtain the benefit of the purchase.
The agent undertook the legally impossible feat of serving two masters whose interests were antagonistic, without the knowledge of one that he was employed by the other. The plaintiff knew that- the agent was acting for the defendants, but the defendants did not know that he was acting for and receiving compensation from the plaintiff.
“The vital principle of the law of agency is said to be good faith, and this prohibits one from acting as the agent of opposing parties.” (Madden v. Provident Institution, 77 Kan. 415, 418, 94 Pac. 793.)
The interests of the vendor and vendee conflicted, and therefore the principle stated in Wilson v. Insurance Co., 90 Kan. 355, 358, 359, 133 Pac. 715, and Bank v. Insurance Co., ante, p. 18, 137 Pac. 78, does not govern.
It is argued that because the defendants received just what they finally agreed to take for the land they have'no cause’ of complaint. Their agreement, however, was made in reliance upon the untrue statement •that the.purchaser’s offer was only $5000, or at most $6500, whereas it was $7000. Good faith required a frank disclosure of the offer. (Kershaw v. Schafer, 88 Kan. 691, 129 Pac. 1137.) It can not be presumed that the defendants would have accepted the agent’s offer of $6500 if they had known that the customer had offered $7000, nor can it be supposed that they would' have signed the agreement had they known that their own agent was receiving pay from the purchaser in addition to the $500 which was deducted from the consideration. Even if the agent’s proposal could have been understood as an offer of $6500, it was still $500 below the amount actually offered; and finally, when the contract was signed it showed a consideration- of $7000, which was still $200 below the amount actually paid by the purchaser, and this fact too was concealed from the defendants. The commission paid by the plaintiff to the defendants’ agent was an inducement to fraudulently conceal the facts from his principals, which good faith required him to disclose.
Specific performance will be decreed only when equity requires it. A vendee who knowingly pays com missions to the agent of the vendor without his knowledge or consent, in order to secure a better bargain, can not successfully invoke the aid of a court of equity to enforce a contract thus obtained.
The judgment is reversed, with instructions to overrule the demurrer.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action for damages for the tortious conversion of a compressor stolen from the cold-meat counter of the plaintiffs grocery store.
It appears that on the night of September 15, 1940, one Mitchell Benton stole the compressor with its operating motor and hid it in an alley until next morning, when he took it to defendant’s junk yard, and began to smash it with a sledge hammer. Brunt, the proprietor of the junk yard, had not yet arrived. One Charley Brown,’ a trucker, was there and helped Benton reduce the compressor to junk.
When Brunt arrived, Benton sold the broken compressor and its motor to Brunt for two dollars — telling him at the same time that it was “hot.”
In plaintiff’s petition it was alleged that the compressor and motor were worth $165; that defendant Brunt knew that it had been stolen, and that Charley Brown, who helped smash the machine, was the agent, servant and employee of Brunt. Plaintiff also alleged that he was deprived of the use of the machine for more than twenty days, which caused him a loss of time to -the amount of $5 per day; that plaintiff was otherwise damaged to the amount of $200, and that he was entitled to punitive damages in the sum of $1,000. He concluded his petition with a prayer for $300 actual damages and for $1,000 as punitive damages.
Defendant Brunt’s demurrer to this petition was sustained and plaintiff filed an amended petition alleging the same facts, but adding this allegation—
“That on or about the 8th day of April, 1941, and previous thereto a demand was made on the defendant Brunt for one thousand dollars and damages, by reason of his purchases of the said compressor and motor. That said defendant Brunt refused and still refuses.”
Defendant’s demurrer to this amendéd petition was overruled, and he filed a verified answer containing a general denial, and denying that Charley Brown was his agent, and denying that Brown assisted in tearing down the motor and compressor.
The cause was tried by the court without a jury. Benton, who had stolen the machine, testified he took it to the Brunt junk yard early in the morning and was admitted by Brunt’s night watchman; that Charley Brown had helped him smash the compressor, and that when he sold it to Brunt he told him that it was “hot.” A witness for plaintiff who had sold the machine to plaintiff in May, 1938, at a price of $165, testified that while he had not seen it sihce he sold it, assuming its ordinary wear and tear for a year and a half, it would have a value of $95.
Plaintiff testified that the cost of a machine to replace the one stolen would be $125; that his 'daily grocery sales would range from $11 or $12 per day to $25 or $30 on some days; that the theft of the compressor had' caused a total loss of his business, which loss amounted to $5 per day “during the summer months.” He also testified that he talked with Mr. Brunt—
“He asked me what was they going to do about my motor there. He said he had to pay a man to watch the yard and it may get stolen, and I told him I would talk with my attorney, and I think you wrote him a letter about it.”
On cross-examination plaintiff admitted that he kept no books and paid no income tax during 1938, 1939, and 1940; that he could not state what was the net profit of his business per day; but that he had to make a profit of $5 or $6 per day — “to pay my overhead expense and pay for my equipment.”
Charles C. Lytle, a member of the Topeka police force, testified that on September 20, 1940, he investigated the burglary and robbery at plaintiff’s grocery store, and learned that the stolen property was at Brunt’s junk yard; that he spoke to Brunt about it; that the latter showed him the motor which had been repaired for pipe cutting; that he gave Brunt a hold order on the machine,,and Brunt said he would hold it until he got further orders from the police department.
Defendant Brunt’s demurrer to plaintiff’s evidence was overruled, and evidence was adduced in his behalf. In his testimony he denied that Benton told him the machine was “hot”; that the compressor was merely junk when he first saw it and bought it; that the motor was not damaged except the wires were cut off from it; that he did not inquire of the seller where it had come from; and that he had no reason to believe it had been stolen.
Charley Brown (Charles R.) testified that his employment by Brunt was that of a trucker, and that he hauled iron on a commission or contract; that Benton was at the junk yard when he arrived on Monday morning, and Benton was then engaged with a sledge hammer in breaking the compressor, and that he (Brown) had no conversation with Benton.
The trial court made a finding—
“That the defendants converted the property of the plaintiff to their own use knowing at the time it was stolen pi'operty, to wit: One compressor and motor.”
The court gave-judgment for plaintiff for $595, which it itemized thus:
“$95 actual damages; $100 for loss of use of the property involved in said litigation, and $400 punitive damages.”
Brunt appeals, -first directing our attention to the total want of evidence to prove a demand for the return of the property, and that some evidence of such demand and refusal is requisite to establish a cause of action for tortious conversion of personal property.
The rule contended for is sound, but it does not apply where a defendant has gotten possession of stolen goods knowing them to have been stolen. (65 C. J. 42-46, and notes.) He thereby becomes virtually particeps criminis with the thief, an accessory after the fact; and certainly no demand is necessary to perfect a cause of action in trover and conversion against the thief himself. Of course, in the case at bar Brunt in his testimony denied that the thief had told him the stuff was “hot” at the time of the sale, but that question of disputed fact was resolved against him by the trial court. Moreover, the ordinary rule which declares that a demand for the return of property is a prerequisite to maintain an action for conversion does not apply when it would be unavailing, and, of course, the return of the compressor which had been broken to pieces with a sledge hammer would have served no purpose of plaintiff.
It is next urged that the correct measure of actual damages was not applied — that the compressor had been reduced to junk before Brunt bought it. True, but the thief testified that Brown, defendant’s trucker, had helped to smash it, and the trial court saw fit to believe that testimony notwithstanding Brown’s testimony to the contrary. Defendant also calls attention to the testimony upon which the trial court based its finding of actual damages at $95. He points out that the only evidence to support that finding was given by the man who had sold it to plaintiff 2 years, 3 months, and 22 days before it was stolen, and that this witness had not seen the property since he sold it, and that he merely assumed that with ordinary wear and tear it would be worth $95, “a year and a half” after he had sold it to plaintiff. It is also argued that the trial court should have applied the ordinary rule that the measure of damages of personal property is its value at the time of the conversion, and that its conversion by Brunt should not be construed to have been committed when it was stolen, but only as of the time and according to its condition when defendant purchased it. However, the court holds that since plaintiff himself had testified its replacement value was $125 when stolen — and his evidence was competent (Brenneisen v. Phillips, 142 Kan. 98, 45 P. 2d 867; State v. Inverarity, 150 Kan. 160, 92 P. 2d 45) — the trial court’s allowance of $95 as actual damages should not be disturbed.
The next error urged is on the allowance of $100 for loss of the use of the machine. This point is measurably good. Conceding with some doubt that there was competent and substantial evidence that the loss of its use was $5 per day, there was no basis for computing such daily loss for a period of 20 days. If 20 days, why not 40 days, or 278 days? — which was the interval between the theft of the property and the commencement of this action. A tolerant scrutiny of the record may reveal some evidence to justify an allowance of $5 per day for the interval bétween defendant’s illegal acquisition of the property and the time he agreed to hold it subject to the order of the police department, which was 5 days; consequently the allowance for the loss of its use should not exceed $25. Thus limited, a majority of this court approves such allowance.
Defendant’s next objection is directed to the allowance of punitive damages. This point presents no difficulty whatever. Since the trial court chose to believe the testimony of the thief that at the time he sold the machine to defendant he informed the latter that it was stolen property, defendant, on peril of both criminal and civil penalties for knowingly receiving stolen property, should have declined to buy it or have anything to do with it. Such was the minimum of his duty as an honest man and good citizen. Failing grossly in that respect, we think the case was eminently one for the allowance of punitive damages. In the early case of Albert Wiley v. Keokuk, 6 Kan. 94, the trial court’s instructions touching an allowance of punitive damages were presented for review. The questioned instructions read:
“7th. — ‘Whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive damages.’ 8th. — ‘In cases of torts, and actions for false imprisonment, the jury are the only proper judges of how much the plaintiff ought to recover.’ ” (p. 106.)
In approving the rules of law thus given by the trial court, Mr. Chief Justice Kingman’s opinion, rendered 73 years ago, is well worth repetition:
“These instructions raise the question, so much discussed of late by writers upon law, as to whether such damages as are called exemplary, vindictive or punitive ought ever to be allowed. We content ourselves with following the current of authorities, and decide that the instructions go no further than such authorities warrant. If the law is wrong, let the law-making power Correct it. The rule as laid down by the court below has already received the sanction of this court.—Malone v. Murphy, 2 Kas., 250. The whole subject is discussed pro and con, and the authorities referred to, in 2 Greenleaf's Ev., § 253, and note, and §§ 254, 255; 'and Sedg. on Damages, 4th Ed., p. 533, and note. And after all this discussion, the Supreme Court of the U. S. decide the law as laid down in these instructions. Mr. Justice Grier, delivering the opinion of ,the court [in Day v. Woodworth et al., 13 How. 362, 371] well says: ‘If repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct, or lawless acts, by means of a civil action, and the- damages inflicted by way of penalty or punishment, given to the party injured.’ We have no doubt that such is the law. Whether it be founded in sound reason or not, is not so much our province to say, as to determine if it be law. The writer hereof believes it to be not only good law, but founded on sound principles, and beneficial in its application. -It often furnishes the only restraint upon a bad man, who cares little for his neighbor’s character, his person, or his property. The party injured pursues the wrongdoer to punishment, when society is too careless to do so.” (p. 106.)
In the recent case of Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P. 2d 149, where among other matters involved in the seizure of mortgaged chattel property in a motor sales warehouse, and where the appellant also forcibly seized a mass of accessories, notes, accounts and other chattels belonging to appellee on which appellant had no claim whatever, the appellee recovered his actual damages in the sum of $10,435.85 and punitive damages in the sum of $8,000. We sustained in principle the allowance of punitive damages because of the flagrant invasion of appellee’s rights, although we ordered a remittitur of $4,000 thereon.
Our reports furnish many examples where exemplary or punitive damages have been sustained, as in a case of trespass and intimidation by cattle drovers (Hefley v. Baker, 19 Kan. 9); in a case of false imprisonment (Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350, 13 Pac. 609); where a passenger was wantonly expelled from a railway train (S. K. Rly. Co. v. Rice, 38 Kan. 398, 16 Pac. 817); where plaintiff was swindled in a fraudulent sale of worthless stock (Roseberry v. Scott, 120 Kan. 576, 244 Pac. 1063); and where a barber’s business was ruined by defendants’ oppressive conduct under pretense of official action (Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999). See, also, Wilson v. Vaughn, 23 Fed. 229; and American Co. v. Hicks, 65 Colo. 146, 172 Pac. 1055, L. R. A. 1918 F. 302.
Underlying these cases and a wide variety of others which might readily be cited, the allowance of punitive damages in addition to actual damages was held to be justified because of some aggravated misconduct or willfully lawless act of the wrongdoer against the party injured. The acquisition of a stolen chattel by one who had been informed that it had been stolen is certainly all the justification needed under the age-old rule stated by Mr. Chief Justice Kingman in Albert Wiley v. Keokuk, supra, to sustain an allowance for punitive damages in an action of trover and conversion by the injured party.
In Bowers’ Law of Conversion, section 252, it is said:
“It is but a reiteration here to say that in the sale of goods a purchaser must look to his title, and if he obtains them from one who is neither the owner nor his authorized agent, he gets no title maintainable against the true owner. Upon this principle, if the goods have been stolen the property in them does not pass by delivery (unless, indeed, they be instruments in form negotiable) and a person who derives his title from or through the thief gains no rights as against the lawful owner, and if he either refuses upon the demand to give them up, or sells them and turns them into money, or otherwise converts them to his own use, he is liable to the lawful owner in trover. This doctrine has its foundation in public policy which admonishes purchasers thereby to be more cautious in the purchases they make and not by their zeal for cheap bargains to offer encouragement to thieves, who, if the loose habit of purchasers to buy everything offered for sale should no longer obtain, would find less profit in plying their avocation. Every vendee should have good reason to believe that his vendor has lawful authority to sell, and failing in this, it is no more of a hardship to hold him liable than it is to make the innocent owner lose his property.”
See, also, 15 Am. Jur. §§326, 355, 367; 25 C. J. S. 705-709; 26 R. C. L. 1137; 4 Sutherland on Damages, 4th ed., § 1131.
The cause will be remanded to the district court with instructions to give plaintiff judgment for $520, and thus modified it will be affirmed. It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff commenced this action to recover money for the contract price of certain hygiene cabinets manufactured, delivered to and accepted by defendants, and damages for breach of the involved contract. The appellate issues presented revolve around the petition which discloses the facts on which plaintiff relies for recovery. Therefore that pleading will be quoted at some length. It reads:
“That during the latter part of 1953 and the early part of 1954, the exact dates being unknown to the plaintiff but well known to the defendants, the defendants, O. Q. Kennedy and J. T. Gilstrap, for and on their own behalf and on behalf of The K & G Hygiene Company, a partnership consisting of O. Q. Kennedy, Mabel R. Kennedy, J. T. Gilstrap, Mrs. J. T. -Gilstrap, orally negotiated with the plaintiff for a manufacturing contract to make .a device known to all parties as the ‘K & G Hygiene Cabinet’.
“That the negotiations were conducted between the defendants and the officers of the plaintiff corporation and culminated in a written contract dated February 27, 1954, a copy of which is attached hereto and made a part hereof as Exhibit ‘A’.
“That said contract was signed by the proper officers of the plaintiff corporation on behalf of said plaintiff and by O. Q. Kennedy and J. T. Gilstrap for and on their own behalf and on behalf of and for the benefit of the K & G Hygiene Company, a partnership as above stated.
“That the plaintiff immediately, upon the signing of said contract, began preparation for the performance thereof; that the plaintiff purchased and procured all of the special machinery, tools, dies and equipment necessary to the performance of said contract, purchased special steel, paints and all other items necessary to the manufacture of the K & G Hygiene Cabinets as described in said contract and as amended by specifications thereafter mutually agreed upon and as hereinafter stated; that the defendants conferred with the plaintiff concerning manufacturing processes and specifications and all changes in specifications and processes as amended were ratified and approved by all of said defendants and the plaintiff.
“That the defendants on numerous occasions, both before and after February 27, 1954, the exact dates being unknown to the plaintiff but well known to the defendants, orally advised the plaintiff that they had orders for said K & G Hygiene Cabinets in numbers of from 10,000 to 50,000 units and that it was necessary for plaintiff to' secure an ample supply of materials to meet said order; that the defendants did, as provided by said contract, in April of 1954 order and direct said plaintiff to commence manufacture of the minimum amount of Type 1 and Type 2 Cabinets, being 5,000 and 2,000 respectively.
“That the plaintiff, in accordance with the terms of said contract and specifications as revised by oral agreement between the parties and ratified by the conduct of said parties, began manufacture of the K & G Hygiene Cabinets and invoiced and made deliveries to the defendants, which deliveries were accepted by said defendants, all as shown upon the schedule of invoices and deliveries as noted and listed upon Exhibit ‘B’ attached hereto and made a part hereof.
“That a total of One Thousand Sixty-two (1,062) Type 1 (54-A) Cabinets at Three and 60/100 Dollars ($3.60) each were manufactured; delivered to and accepted by the defendants; and a total of Five Hundred Fifteen (515) Type 2 (54) Cabinets at Three and 80.100 Dollars ($3.80) each were manufactured, delivered to and accepted by the defendants but that said defendants failed, refused and neglected to make payment therefor according to the terms of said contract and thereby became indebted to said plaintiff in the sum of Five Thousand, Seven Hundred Eighty-two and 64/100 Dollars ($5,782.64).”
Further allegations of the petition have to do with plaintiffs claims respecting a breach of the contract and damages sustained by reason thereof and are of little consequence to the issues raised by the appeal, so such allegations, together with the prayer of the petition, will be omitted.
The contract, attached to the petition was identified as Exhibit “A,” is lengthy and requires little attention. However, it is to be noted it contains numerous specifications applicable to various types of cabinets contemplated under its terms and that portions of the agreement relating to “delivery, acceptance and price” reads:
“The Buyer shall have the right within ten (10) days from the date of each delivery to reject such of the cabinets as are not in conformity with the specifications or are defective and after the expiration of such ten (10) days Buyer shall be deemed to have accepted all of said cabinets except such as shall have been rejected. The Manufacturer shall replace such of the cabinets as may be rejected with others made in conformity with the said specifications within ten (10) days from the date of rejection.
“The minimum Ten Thousand (10,000) units herein agreed upon shall be accepted and paid for by the Buyer within six (6) months from the date of this Agreement and all units not specifically ordered within this period may be invoiced to the Buyer for payment as hereinafter provided.”
And another portion relating to “payment” reads:
“All payments for deliveries made shall be thirty days net cash, with two per cent discount ten days from date of invoice.”
It should be further noted that the schedule of invoices and deliveries, identified in the petition as Exhibit “B,” shows delivery to defendants of 1577 cabinets, between May 29, 1954, and July 8, 1954, at invoice prices totaling the amount claimed by plaintiff in the petition, which was filed on April 21, 1955, under allegations charging that although such cabinets had been delivered to and accepted by defendants on the dates indicated in such exhibit the defendants had failed, refused and neglected to make payment therefor in accord with the terms of the contract.
At this point, in order to avoid confusion respecting the parties defendant, it should be stated the abstract contains a statement to the effect a demurrer of defendant Mabel R. Kennedy to the petition was sustained for the reason the pleadings showed that she had never been a party to the contract. We are not advised as to how Mrs. J. T. Gilstrap got out of the case. However, since the abstract, obviously referring to the ruling on such demurrer, contains a further statement that the action now proceeds against O. Q. Kennedy, J. T. Gilstrap and K. & G. Hygiene Company, a partnership composed of O. Q. Kennedy and J. T. Gilstrap, subsequent reference to the defendants will be so limited.
Subsequent to the ruling above mentioned, the defendants filed a motion to make plaintiff’s petition more definite and certain and to strike certain of its allegations. Portions of this motion were sustained. Others, not here involved, were overruled. Thereafter, and in conformance with the ruling on such motion, plaintiff filed an amendment to the petition which reads:
“Comes Now the plaintiff and in compliance with the order of the court made on November 4, 1955, makes its petition more definite and certain by stating that the mutual agreement as to the amended specifications and promises was made orally and the cabinets as made according to said oral amended specifications were received and accepted by the defendants; that no changes as made were approved by any written agreements, but orally by the oral agreements and conduct of the parties, and by their further oral ratification and conduct.”
Following the foregoing amendment defendants did not renew their attack on the petition, either by motion to make more definite and certain or to strike. Nor did they complain such amendment failed to comply with the trial court’s ruling on their previous motion. Instead they filed what, for purposes pertinent to this appeal, may be said to have been a general demurrer based on the ground the petition, as amended, failed to state facts sufficient to constitute a cause of action. In due time this demurrer was overruled. Thereafter, without leave of court, or at any time requesting permission to do so, they again attacked the petition by a lengthy motion titled “Motion to strike, or in the alternative to make petition and amendment thereto more definite and certain, and to elect.” When this motion was called for hearing plaintiff objected to consideration thereof on grounds it should have been filed and presented prior to the demurrer. After an extended argument on this objection the court said “It appears to the Court that this motion is not well taken; and since having overruled the demurrer, that will be the order of the Court, that the motion is not well taken.” Further argument ensued, whereupon, in response to counsel for defendants’ specific request, for a reason for its action, the court announced that it thought the motion was out of order at the present time, that it should have been filed and taken up at the time of the demurrer; and that for that reason it was refusing to hear such motion. Thereupon counsel for defendants gave notice they were appealing from such ruling, as well as the order overruling the demurrer, and perfected the instant appeal.
The space required to give readers of this opinion a proper understanding of what this case is about makes this appeal appear more formidable than it really is.
Touching appellants’ complaint the trial court erred in refusing to hear their second motion to strike or in the alternative to make the petition and amendment thereto more definite and certain, after presentation and determination of their demurrer to the petition as amended, it may be stated that this court has long been committed to the rule that the filing of repeated motions of such character, which might have been embodied in the first motion to make the original petition more definite and certain and to strike, is not favored and that they cannot be filed without leave of court and such leave should rarely be granted.
See, e. g., Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 Pac. 626, cited with approval in Meixell v. Kirkpatrick, 33 Kan. 282, 297, 6 Pac. 241, and Zinn v. Hill Lumber & Investment Co., 176 Kan. 669, 671, 272 P. 2d 1106, where it is said:
“After a motion has been heard and overruled, the moving party has no right to file a second motion for the same relief upon grounds existing at the time the prior motion was made and decided. It can only be done upon leave of the court, which should rarely be granted.” (Syl. f 1.)
The reason for the rule of the foregoing cases is as old as the law itself. If and when the trial court, in the exercise of sound judicial discretion, believes that the joinder of issues in a lawsuit is being unduly prolonged by the filing of dilatory and frivolous motions it not only has the power but it is its duty to take steps which will avoid that result. This we may add, is particularly true where —as here — the. moving parties have theretofore elected to file, and have been unsuccessful in the presentation of, a demurrer. An examination of the motion now under consideration discloses nothing which could not have been raised in appellants’ first motion to make the petition more definite and certain and to strike. Moreover, in the light of the record presented, we think it is clear the time had come for the court to insist upon the joinder of issues. Under such circumstances we do not believe the trial court abused its discretion in refusing to give the motion in question consideration or that there is merit in appellants’ contention it erred in failing to do so. Indeed to hold otherwise would mean that litigants, not the court, are to determine when motions and other objections to pleadings must come to an end. However, we are not compelled to base our decision on the foregoing question entirely upon its merits.
Another rule of universal application is that motions to strike and make definite and certain rest so much in the sound discretion of the trial court that rulings with respect thereto, which we may add includes a ruling refusing to hear such a motion for the reasons herein involved, are not appealable unless they affect a substantial right and in effect determine the action. See, e. g., Reed v. Mai, 171 Kan. 169, 231 P. 2d 227, and Billups v. American Surety Co., 170 Kan. 666, 671, 228 P. 2d 731, and cases there cited. For numerous other decisions of like import see West’s Kansas Digest, Pleading, § 353, and Hatcher’s Kansas Digest [Rev. Ed.], Pleading, § 44. Having again reviewed the motion, we are unable to find anything therein which could not have been raised by appellants by way of answer. It follows that the ruling refusing to hear and determine such motion did not affect appellant’s substantial rights or have the effect of determining the action, hence such ruling was not appealable.
Appellants’ second and final contention is that the trial court erred in overruling their demurrer to the amended petition. We are not disposed to here repeat the previously quoted allegations of that pleading. It suffices to say that when taken as true, as they must be in ruling on a demurrer, we have little difficulty in concluding such allegations are sufficient to state a cause of action against appellants under the contract for the amount claimed for the Hygiene Cabinets, alleged to have been manufactured, delivered to and accepted by appellants under the conditions and circumstances set forth at length in such pleading. Having reached this decision we have no difficulty whatsoever in concluding appellants’ position the trial court erred in overruling the demurrer cannot be upheld. The established rule of this jurisdiction is that where a general demurrer challenges the sufficiency of the entire petition to state a cause of action the trial court does not err in overruling such demurrer if a pleading so challenged states a cause of action on any theory. For decisions, where this rule has been considered, discussed and applied, see Clark v. Hildreth, 179 Kan. 243, 247, 293 P. 2d 989; Edwards v. Solar Oil Corp., 177 Kan. 219, 222, 277 P. 2d 614; Myers v. Fleetwood Farms, Inc., 176 Kan. 515, 516, 271 P. 2d 263; Butler v. Rude, 162 Kan. 588, 178 P. 2d 261; Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630.
Finally it should be stated that in reaching the conclusion just announced ,we have disregarded, not overlooked, many contentions advanced by appellants respecting the existence of defensive facts and circumstances which they seek to have considered and reviewed in connection with the ruling on the demurrer. Indeed, we have purposely refrained from mentioning such matters in order to avoid saying anything which might prejudice either of the parties in a trial, after joinder of issues, on the merits of the cause. Whether appellee can sustain the burden of proving the allegations of his petition or appellants establish the defenses with respect thereto, which they have sought to argue in connection with questions pertaining to the propriety of the rulings on the demurrer, are not matters with which we are presently concerned under the limited appellate issues involved. All we are now’warranted in holding, as we do, is that under the facts, conditions and circumstances, set forth and described in the amended petition, the trial court did not err in overruling the demurrer to that pleading.
What has been heretofore stated and held requires an affirmance of the judgment.
It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is to determine whether the benefits which may accrue to land by the construction of a paved and improved highway upon it are to be considered in diminution of damages for the part appropriated for its construction.
The board of county commissioners of Douglas county proceeded regularly by authority of statute to appropriate a strip of plaintiff’s land for an improved highway which was designed to connect Fort Leavenworth and Fort Riley, via Douglas county. The board appraised the plaintiff’s damages at $600. This sum was declined, and plaintiff appealed to the district court, where a verdict and judgment for $1,850 was entered in his behalf.
The commissioners appeal, and the matter to be reviewed by this court, as stated by their counsel, is—
“The question of the correctness of the trial judge in refusing to admit testimony showing the benefit accruing to the land owner and appellee in this matte.r, by reason of the hard surface improvement of the road in question, and the further alleged error of the trial court in instructing the jury that such benefits to the land owner should not be considered by them.”
The pertinent statute itself must furnish the answer to this question, and citations from decisions in other cases, like Tobie v. Comm'rs of Brown Co., 20 Kan. 14, under different statutes, are not controlling. The appropriation of the plaintiff’s land was authorized by chapter 265 of the Session Laws of 1917 as amended by chapter 246 of the Session Laws of 1919. Section 3 of the latter act, in part, reads:
“When the petition filed for the improvement of a road describes a road which has not been legally established as a public road, . . . the board of county commissioners shall by order of said board lay out, alter or widen a public road ... if the owner dr owners of the land shall refuse to sell or donate said land, the board of county commissioners are hereby authorized to exercise the right of eminent domain . . . the county commissioners shall . . . view all lands required to be taken . . . and appraise the value thereof and assess the damages thereto. . . . And the amounts so allowed shall be paid from the general fund or the road fund of the county.
“The right of appeal from the award of damages made by the board of county commissioners shall be the same as is now provided by law in other road cases,' but such appeal shall not delay any work upon or in relation to said road.”
It will be observed that this section does not authorize nor require that any deduction or set-off be made for benefits, general or special, which may inure to the landowner for the improved road constructed over his land. That mattér is to be determined when the road is completed. Section 5 of the same act provides:
“Upon the completion of any improvement under the provisions of this act the county commissioners shall meet at their office and apportion the cost thereof as follows: (a) If all or any portion of said road improvement is entitled to and does receive federal or state aid or donations, the same shall be applied to the cost of the improvement for the purposes and to the extent for which the same were given. (&) The remainder of the cost shall be apportioned: fifty percent to the county; twenty-five percent to the taxable property within the township or townships in which the benefit district is situated . . .; and twenty-five percent among the several tracts of land within the benefit district designated in the map, according to the' benefits accruing to the real property and improvements thereon within the limits shown by said map.”
As a taxpayer of the United States the plaintiff will contribute with all other taxpayers to the amount of federal aid given by the national government toward this improvement! He will also pay as a county taxpayer; and he will pay as a township taxpayer. In addition thereto, he will also have to pay the sum apportioned against his property according to the benefits accruing to it by reason of the improvement.
It will thus be seen that the statute provides that the’damages for the land taken are to be determined and paid for without any deductions when the land is appropriated; and the benefits accruing to the land not taken are to be determined later when the improved road is completed and when a certain percentage of the cost of it is apportioned to the benefited property. This special apportionment of part of the cost is only justifiable because of the benefit to the property not taken; but if a set-off for benefits' were also allowed in diminution of damages, the landowner would be paying twice for the improvement.
The judgment of the district court is correct and it is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by taxpayers to enjoin the county superintendent from calling an election in a rural high-school district, to choose a board of officers. A demurrer to the petition was sustained, and the plaintiffs appeal.
The petition discloses that persons living at and near Ensign, in Gray county, close to the Ford county line, promoted organization of a rural high-school district composed of territory lying in both counties. A petition was circulated and signed before boundaries of the proposed district were approved by the county superintendent of Ford county. When the petition was presented to her, she declined to approve it. In order to save circulation of a new petition stating different boundaries, the promoters of the district and the county superintendent of Gray county made a proposition not to oppose segregation of part of the Ford county territory, and to recommend such segregation, after the district was formed and bonds voted, if the county superintendent of Ford county would approve. The proposition was accepted, reduced to writing, and signed, and the county superintendent of Ford county approved the bounda ries of the proposed district as described in the petition. The writing reads as follows:
“Inasmuch as some opposition exists by certain parties within the east two tiers of sections of township 27, range 26, to being incorporated in the proposed Ensign rural high-school district, it is agreed by the county superintendents of Gray and Ford counties, and the promoters of said district, that in consideration of the approval of the county superintendent of Ford county of the boundaries in Ford county as stated in the petition presented for the proposed Ensign rural high-school district, the county superintendents and the promoters agree that after the district is formed and the bonds voted and sold, they will not oppose' the segregation of the said east two tiers of sections in township 27, range 26, and the said county superintendents agree to indorse the segregation of said two tiers of sections.
“Done at Dodge City, Kansas, Feb. 7, 1920.
“Executed in duplicate.
“[Signed] Esther M. Wilkinson,
Co. Supt. of Ford Co.,
Emma Hildebrand,
Co. Supt. of Gray Co.,
C. M. Bratton,
Chas. E. Sturdevant.”
The petition charges fraud on the county superintendent of Ford county because there is no way to detach the Ford county sections, and alleges that because of the agreement some of the inhabitants desisted from efforts to defeat establishment of the district.
Section 1 of chapter 284 of the Laws of 1917 authorizes electors to form a rural high-school district whose boundaries have been approved by the county superintendents of each county in which a portion of the proposed district is situated. Section 2 provides as follows:
“Whenever a petition, signed by two-fifths of the legal electors residing in the territory of the proposed rural high-school district . . . shall be presented to the board of county commissioners of the county in which lies the greatest portion of territory comprising said district, reciting the boundaries of said proposed district and the approval thereof as provided in section 1 of this act, and requesting said board of county commissioners to call a special election to vote on establishing and locating a r-ural high school, ... it shall be the duty of the board of county commissioners forthwith to call a special election in said proposed district to vote on establishing and locating a rural high school. . . .”
The statute further provides as follows:
“On the Friday following the election held as provided in sections 2 and 3 of this act the board of county commissioners shall canvass the vote' and shall report the same to the county superintendent of public instruction. Upon receiving notice that a proposition to establish a rural high school has been adoped by a majority of those voting in an election held as provided in sections 2 and 3 of this act, the county superintendent of public instruction shall call a special meeting, notice of which shall'be given as provided in section 2, to elect a rural high-school board which shall consist of a director, clerk, and treasurer: . . .” (Gen. Stat. 1915, § 9350.)
Under this law a high-school district has been established. In calling the election to choose a district board, the defendant acts in a purely ministerial capacity to execute the command of the legislature. The proposition is that the plaintiffs may litigate with her the legal existence of the corporation. This court has uniformly held, under a great variety of circumstances, that this may not be done. (A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281, and cases cited in the opinion; Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, and cases cited in the opinion ; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010; Miely v. Metzger, 97 Kan. 804, 156 Pac. 753.)
The petition presents no facts which would authorize the court to depart from the established rule. No matter what moved the mind of the county superintendent of Ford county, she approved the boundaries of the proposed district. There came to the board of county commissioners a petition signed by the proper number of electors, and approval of boundaries by the county superintendents of both counties. If approval of boundaries followed instead of preceded signing of the petition, the proceeding was irregular merely, and not void, and the board of county commissioners was authorized to call the election and’ declare the result. Whatever it was that influenced or did not influence the minds of the voters, the result of the election was favorable to the establishment of the district, and that ends the matter, unless the state should choose to interfere. Besides what has been said, it is clear the plaintiffs are not entitled to the relief prayed for because of the rule forbidding injunction against calling or holding an election (Duggan v. Emporia, 84 Kan. 429, 114 Pac. 235).
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs appeal from a judgment granting a new trial. The action was commenced by the plaintiffs to recover a real-estate agent’s commission for selling land. Verdict was rendered in their favor, and j udgment was immediately rendered thereon. Within proper time thereafter a motion for a new trial was filed, and that motion was sustained and a new trial granted. No reason was given for granting the motion for a new trial, although the plaintiffs filed a motion asking the court to give his reasons therefor. For anything that appears in the record the court may have granted the new trial because he was not able to approve the decision of the jury on a disputed question of fact. This court has repeatedly declared that a judgment granting a new trial will not be reversed unless error is made apparent. (Atkinson v. Darling, ante, p. 229.)
Under that rule the judgment must be affirmed.
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The opinion of the court was delivered by
Porter, J.:
The railroad company appeals from a judgment in plaintiff’s favor for damages on account of injuries to a carload of colts and young mares that were being shipped from Kinsley to Syracuse.
The petition alleges that after the animals had been loaded in a car for shipment the defendant’s employees in charge of the freight train, in attempting to pick up and attach the car, carelessly and negligently backed the train with great speed, force and violence against the car and that a number of the animals were knocked down and killed, and others seriously maimed and injured.
The plaintiff’s evidence showed that about midnight on the 26th of April, 1917, he loaded a car at the stockyards in Kinsley, and that when he and his employees went away the horses were standing and in good shape; that an hour or more after-wards train No. 31 came to the station, and after doing other work, picked up this car and moved it a distance of about 700 feet to a point in front of the station at Kinsley, when it was discovered that something had happened to some of the horses, that three or four were dead and many others were down and had been tramped upon and others were plunging around.
A demurrer to the plaintiff’s evidence was overruled. The brakeman and fireman testified to the effect that when they passed the car on the main track before picking it up, the horses were raising a disturbance which the employees thought was due to the light of the locomotive shining upon them. No investigation was made at the time as to the condition of the horses in the car. These two witnesses and the engineer testified that nothing unusual occurred in picking up the car; that there was no violent contact or anything likely to shake up the car or its contents. When the car was moved to the station the conductor discovered that several of the horses were dead, that others were down and that they appeared much excited. The plaintiff was notified of the condition and called up one of his employees, who went to the stockyards and assisted the railroad men in unloading the car. Besides the animals that were dead, several had broken legs, and all appeared to be more or less injured. The defendant produced the depositions of two witnesses, who testified that they were traveling with their families in wagons from Colorado, and camped near the stockyards about 100 feet from the chute where the horses were loaded; that they heard the men loading the horses; that the horses seemed to be very much excited and that the loading was only accomplished with difficulty; that almost immediately after the men who had loaded the car went away, the horses seemed to be struggling and kicking; that this continued for considerable time and was plainly distinguishable above the noise of the switch engine coming to pick up the car.
The jury made a finding to the effect that the defendant was negligent in “not using proper care in coupling and starting engine” with the car. A motion to set aside the finding as unsupported by the evidence was overruled. Aside from a finding as to the value of the animals this was the only special finding made.
The contention of the defendant is that the verdict and judgment are based, not upon evidence, but wholly upon surmise and speculation. It is conceded that the injuries to the horses might have occurred in the way claimed in the petition, but it is insisted that it could have occurred from various other causes. Plaintiff’s testimony showed that the horses shipped were young, unbroken animals that had never been confined except in sheds, and that when they came to be loaded they were a little excited because they had not been handled that way before, and that it was natural for them to be agitated.
It is argued that in the absence of evidence showing any unusual or violent coupling of the engine to the car, it,is just as probable that the injuries to the animals resulted from their becoming excited by reason of their surroundings and confinement foreign to their previous habits, as that the employees of defendant were guilty of negligence in coupling to the car. In this connection it is argued that coupling of the car to the freight engine was not the only movement the car made from the time it was picked up, and that the animals might have been thrown down by the sudden application of brakes or when the car was brought to a standstill, and that it is equally plausible that the horses might have been thrown down by the force of inertia, upon the stopping of the train.
We think it is apparent that the finding that the injuries to the horses were caused by negligence in coupling and starting the engine with the car of horses is wholly unsupported by evidence, and further, that if the positive evidence offered by defendant be wholly disregarded, the jury were left to mere conjecture in determining how the accident might have occurred. It was not within the province of the jury to indulge in mere conjecture and speculation for the purpose of finding negligence. The question has often been before the court. The most recent case is Patterson v. Oil Co., ante, p. 221; 191 Pac. 258, which was an action to recover damages for injuries caused by the explosion of a coal-oil lamp, the plaintiff’s claim being that the defendant, a wholesale dealer in-gasoline and coal oil, had negligently mixed coal oil and gasoline together and sold the product as kerosene. In the opinion it was said:
“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 . . . as coal oil.” (p. 227.)
In Railroad Co. v. Aderhold, 58 Kan. 293, 298, 49 Pac. 83, it was said:
“It is possible that the horses might have been frightened and hindered by the hole; but things which are possible may never happen. The accident may be accounted for in several ways, and other and more plausible theories of the collision may be readily suggested; but liability cannot be fixed on a bare guess, nor can a verdict rest on mere conjecture.”
The following cases are to the same effect: Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 604, 40 Pac. 915; Railway Co. v. Young, 57 Kan. 168, 171, 45 Pac. 580; Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58; Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101; Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001; Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101; Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356; Byland v. Powder Co., 93 Kan. 288, 294, 296, 144 Pac. 251; Rodgers v. Railway Co., 97 Kan. 318, 321, 154 Pac. 1027; Norman v. Rail way Co., 101 Kan. 678, 682, 168 Pac. 830; Cash v. Oil Refining Co., 103 Kan. 880, 888, 889, 176 Pac. 980.
The court should have sustained the motion to set aside the special finding as to negligence, and the judgment is reversed and the cause remanded for another trial.
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The opinion of the court was delivered by
Marshall, J.:
The defendants have filed an application for a rehearing in which they say that “the court has not decided the question raised in the appeal,” and that “the statement of the fact in the syllabus on which the decision rests is not a correct statement of the facts as shown by the findings of the trial court.” It is true that the court did not interpret the contract as requested in the brief of the defendants. The reason for not construing the contract is that when this court read the record presented it found that which compelled an affirmance of the judgment even if the defendants were right in their contention. The trial court, in the statement made under section 582 of the code of civil procedure (Gen. Stat. 1915, § 7486), said that the 66.44 tons of hay in controversy, at the time the hay was burned, had been delivered by the plaintiffs to the defendants. The defendants contend that there was no evidence to prove that the hay had been delivered. The difficulty with this contention is that the statement of the trial court takes the place of the evidence, which is not before this court, and cannot now be produced in any other manner. That statement says that the hay was delivered. Unless the word “delivered” was inadvertently used, and the court did not mean to say that the hay had been delivered, this court is bound by the statement. There is nothing in the record to contradict what the court said, or to show that the word “delivered” was inadvertently used.
In addition to the statement made the trial court prepared an elaborate written opinion in which a number of authorities are cited concerning the delivery of property for which a contract of sale had been made. The court concluded that opinion with the following language :
“Within the authorities cited and quoted from considering the facts found, as hereinbefore set forth, and all the evidence introduced upon the trial of the pending cause, I am irresistibly led to the conclusion that the delivery of the hay to and storing the same in the hay barn at Rose, Kansas, to remain there in storage until loaded upon the cars for shipment, the defendants ‘to furnish all cars for shipment’ as provided in contract in evidence, constituted in law a delivery to defendants of such hay so stored in hay barn at Rose, Kansas, the title to such hay being at the time of destruction by fire in the defendants, the fact that payment of such hay was to be made when hay was actually loaded on cars being a mere incident to sale of the hay regulating the time of payment, there being no dispute as to quantity, quality or location of the hay, nothing remains to be done by the sellers, plaintiffs herein, except to load on cars for shipment, such cars to be furnished by the defendants; and doubtless it may well be said that plaintiffs would, as they claim, always have been ready, able, willing and anxious to load same on cars and thus realize their profits, but cars not being furnished by defendants for the shipment of hay, probably not from any direct fault of the defendants, indeed may and likely did, result from a shortage of cars, nevertheless cars were not furnished and later the barn was struck by lightning and was destroyed by fire with its contents, including the hay in controversy herein; this was unfortunate and is much to be regretted, all will concede, but it must be remembered that the defendants had an insurable interest in said hay and they actually contracted to pay the insurance thereon, but no insurance was placed thereon by them. From all of which I find that judgment should be rendered herein in favor of the plaintiffs and against the defendants and each of them for the sum of $1210.60 and for costs of action; such sum being for the sum of $1129.82 value of hay destroyed and interest from January 15, 1915, date destroyed to this date, and exceptions will be noted for defendants.
“The court will here say that it is greatly to be regretted that counsel have been unable to procure a transcript of the stenographic notes of the deceased reporter to the end that the proceedings and the evidence introduced upon the trial of cause might be accurately and specifically set forth in the record, for review by the Supreme Court. However, death having intervened, the court has after careful examination and consideration of the proceedings had in the cause, and as far as possible endeavoring to recall the testimony introduced on the trial of the cause, prepared the foregoing statement of the proceedings had herein, including the substance at least of the evidence; and
“It is now considered, ordered, adjudged and decreed that the above and foregoing journal entry and statement be approved and filed herein as part of the record in this cause.”
It must be noticed that this concluding statement of the trial court is based on the facts found as set forth in the statement of the evidence and on all the evidence introduced on the trial. This conclusion again makes it prominently appear that the court found that the hay had been delivered. But omit as far as possible all reference to the delivery of the hay, and examine the contract alone. Under it the hay in controversy was moved to Rose, Kansas, and there placed in the barn where it was burned. That hay was to be loaded by the plaintiffs on cars as soon as they could be obtained by the defendants, and the remainder of the purchase price was to be paid when the hay was loaded. As said in the former opinion the defendants could have loaded the hay that had been stored, and could have deducted the expense thereof from the purchase price.. This they could have done under the contract. While the contract does not specifically state the terms of delivery that pass title, yet a fair interpretation of its provisions is that the hay became the property of the defendants Upon its storage in the barn at Rose.
The former opinion and judgment are adhered to, and a rehearing is denied.
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of unlawfully having intoxicating liquor in his possession. He appeals, and contends the evidence was insufficient to establish the fact of possession.
At about 10:30 on a Sunday night the sheriff of Lyon county overtook and halted a twelve-cylinder, seven-passenger Packard automobile, as it was coming into the city of Emporia from the east. The automobile was curtained on both sides up to the front seat. In the front seat were three persons, I. E. Newell, who was driving the automobile, the defendant, who was on the opposite side of the seat, and a woman, who sat between the two men. The space back of the front seat contained 350 quart bottles of intoxicating liquor. The liquor filled the space to such an extent that, when a rear door of the automobile was opened, six or seven bottles fell to the pavement and broke. The defendant and Newell wore business suits of good quality. The defendant wore unionalls over his other clothing. There was a loaded revolver in the automobile. Finding themselves in custody of officers of the law, Newell claimed the automobile and possession of the liquor, and the defendant disclaimed relation to both, except that he was riding in the automobile as Newell’s guest.
The occupants of the automobile vyere arrested, and locked up for the night. Newell was afterwards convicted, whether of unlawful possession of liquor or unlawful transportation of liquor, or both, the record does not disclose. The complaint against the defendant contained two counts, one for unlawful possession of liquor and one for unlawful transportation of liquor, in violation of sections 1 and 2 of the “bone-dry” law, which read as follows:
“Section 1. It shall be unlawful for any person to keep or have in his possession, for personal use or otherwise, any intoxicating liquors, or permit another to have or keep or use intoxicating liquors on any premises owned or controlled by him, or to give away or furnish intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided. . . .
“Sec. 2. It shall be unlawful for any common carrier, firm or corporation or any other person for hire or without hire to bring or carry into this state, or carry from one place to another within this state, intoxicating liquors for another or for itself or himself, even when intended for personal use; and it shall be unlawful for any common carrier, its agent or employee to deliver any intoxicating liquors that may be in its possession to any person for any purpose whatsoever. . . .” (Laws 1917, ch. 215.)
Other sections of the act permit transportation and possession of wine for communion purposes, and of alcohol for certain restricted purposes. The jury was instructed that any one who counsels, assists, aids, or abets in the commission of an offense may be convicted as if he were sole offender. The defendant made a timely motion for his discharge, and was acquitted of unlawfully carrying the liquor.
There was much testimony besides that which established the facts attending the arrest already stated, and which may be called admitted facts. When arrested, the defendant and Newell freely gave a full account of themselves to the sheriff. Newell owned the automobile, and was taking the liquor, which he had procured in Kansas City, Mo., to Wichita, Kan. The defendant and Newell had known each other in Wichita, where the defendant was a stage hand in a theater. The defendant had gone to Kansas City on Tuesday to spend a vacation. On Saturday he met Newell in Kansas City. In a conversation which followed, the defendant said he was going home the next day. Newell was going to Wichita the next day, and offered to take the defendant in his automobile. The defendant accepted, in order to save railroad fare, and had no connection whatever with the transportation or custody of the liquor. When the defendant arrived at the garage in Kansas City from which the party started to Kansas, the side curtains were on the automobile, and Newell and the woman were already in the front seat. Newell drove the car all the way from Kansas City. Some distance out of Kansas City the defendant got out of the automobile. When he resumed his place in the automobile, Newell gave him the unionalls to put on to keep his clothes clean. At that time Newell told the defendant there was liquor in the automobile. Newell and the defendant testified to the same facts at the trial. When arrested, Newell claimed the woman was his wife, which was not true. The revolver belonged to Newell. Newell admitted.he had been arrested before for violation of the liquor law. There was some discrepancy between some statements of the defendant with reference to details of his arrangement with Newell about leaving Kansas City. Except in relation to this discrepancy, the state offered no testimony contradicting the testimony of the two men.
From the foregoing it is apparent the verdict rests bn what have been called the admitted facts. Leaving the admitted facts on one side, all the material testimony indicated the defendant is innocent. If any part of such testimony be disregarded, the remainder indicates his innocence. If all or any part of such testimony be disregarded, no additional fact, favorable to the state, is proved which may supplement the admitted facts.
The statute was the culmination of legislation directed against the liquor traffic. Its provisions are so extreme that there is little room for interpretation. The pertinent portion of the first section denounces keeping in possession or having in possession, for personal use or under other circumstances, any intoxicating liquor. The gist of the offense is possession. What is possession?
The term “possession” is derived from the Roman law, and ever since the days of the Roman law its proper denotations and connotations have been the subject of discussion by jurists and philosophers. The modern critiques of Holmes, “The Com mon Law,” lecture VI; Pollock and Wright, “Possession in the Common Law”; Thayer, “Possession,” 18 Harvard Law Review, page 196; and Salmond, “Jurisprudence,” chapters XIII and XIV, are stimulating and helpful. It is not necessary for present purposes to dwell on either the importance or the intricacies of the subject. It is sufficient to say that we are concérned with corporeal possession in fact. Following Salmond’s definition and analysis, which are open to as little objection as any, corporeal possession is the continuing exercise of a claim to the exclusive use of 'a material thing. The elements of this possession are, first, the mental attitude of the claimant, the intent to possess, to appropriate to oneself; and second, the effective realization of this attitude. Effective realization involves the relation of the claimant to other persons, amounting to a security for their noninterference, and the relation of the claimant to the material thing itself, amounting to a security for exclusive, use at will. All the authorities agree that an intent to exclude others must coexist with the external facts, and must be fulfilled in the external physical facts, in order to constitute possession. It is this requirement which prevents the man in whose building, or automobile, or traveling bag, or pocket, liquor is found, which was surreptitiously placed there by another, from being a violator of the law.
If we leave out of account Newell’s claim and the defendant’s disclaimer when they were arrested, and apply the conception of possession indicated to the remainder of the admitted facts, Newell had possession. For all practical purposes the bottles of liquor constituted a single mass, and bore to the automobile the relation of éggs to the basket in which they are carried. Newell Vas in full control of the automobile, and was demonstrating dominion over it and the liquor. In the absence of • some additional fact or facts, the defendant could not have disputed possession with Newell on even terms, and a civil suit between them for possession would have been decided in favor of Newell.
It is an admitted fact that the liquor was being transported. The jury acquitted the defendant of transporting the liquor. Newell was transporting it, and that fact tended to we,aken attribution of possession to the defendant. The defendant wore unionalls. That fact might indicate he was to do some thing .about the automobile, if occasion required, which might soil his clothing, and so be relevant to the charge of transporting liquor, or aiding Newell in transporting liquor. The fact was not a characteristic or an incident of possession, and did not militate against the obvious possession of Newell. The fact that the automobile was curtained to conceal the liquor from casual observation, and the fact that the automobile was so filled with liquor the three persons were obliged to sit in the front seat, gave no clue to possession of the liquor. The revolver was. simply lying in the automobile. It was not closely identified with the automobile, as the liquor was, and if the charge had been unlawful possession of a deadly weapon, proof of possession would have been in a state of suspense, and the prosecution would have been obliged to produce some antecedent fact, such as prior possession, or title, in order to establish possession in either man. The fact that when the two men were surprised, under circumstances certain to result in forfeiture of the automobile, destruction of the liquor, fine, and imprisonment, they made oral statements consistent with the physical facts, tended to strengthen somewhat, and certainly did not diminish, the probative force of the physical facts. When we leave the admitted facts and resort to the testimony generally, Newell’s claim of possession is verified, and the claim which the state would force on the unwilling defendant is negatived.
All the conditions essential to possession in Newell alone were present. Against them stood nothing but the fact that the defendant was knowingly accompanying unlawful transportation of liquor by another. That fact was consistent with the defendant’s innocence, and was clearly insufficient to prove possession by him beyond a reasonable doubt. Indeed, the evidence was insufficient to prove possession by the defendant at all. There was no more evidence that the defendant was aiding and abetting possession by Newell than there was that the defendant was in possession himself, and it seems he was convicted-because he was in bad company — something which, with all its rigor, the statute does not cover.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the defendant’s motion for his discharge.
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The opinion of the court was delivered by
Mason, J.:
An execution against John Ferguson was levied upon three mares and a colt as his property. C. E. Emick brought replevin against the sheriff, claiming to be entitled to the property under a chattel mortgage. Later the mortgagor and the execution creditor were also made defendants. The plaintiff obtained possession, and no redelivery bond was given. The execution of the mortgage was denied under oath. The trial of the case was begun and the plaintiff offered in evidence an instrument partly printed and partly typewritten signed by Ferguson and corresponding to the one pleaded, except that a pencil line drawn through a part of the printed matter which was not appropriate to the purpose had been extended so as to cover the words “do hereby sell and mortgage unto.” An objection to its admission on account of this defect was sustained. The plaintiff after an interval asked and was given five days in which to amend his petition, the jury being discharged. An amended petition was duly filed, to which a demurrer for want of facts and for misjoinder was sustained, and the plaintiff and the mortgagor appeal, the appeal being resisted by the sheriff and execution creditor.
The amended answer asked for a reformation of the mortgage based upon these allegations -with reference to its execution:
“That in executing the same a piece of carbon paper was inserted between two blank printed forms of a mortgage in which were blanks to be filled in, and that the data as to the notes secured, and other data was filled in said mortgage, and that .in attempting to make said printed form conform to the contract of parties a lead pencil line was inadvertently and by mutual mistake and the mistake of the' scrivener drawn through the words ‘do sell and mortgage unto’ printed on said form, said lead pencil line partially obscuring said printed words on the outside' copy of said mortgage.. That said mortgage was executed in duplicate originals by the use of said carbon paper and the impressions on both papers were made at the same time. That on the inside copy on which the carbon impression was made the lead pencil line was drawn just above the edge of the words ‘do sell and mortgage unto’ printed on said form. That said carbon impression was duly signed by said Ferguson at the' same time said outside copy was signed, and was also witnessed by Adelbert Buckley, and that the first duplicate original of said mortgage was retained by plaintiff and the other duplicate original, that is the one with the carbon impression on was filed for record in the office and was duly recorded in the office of the Register of Deeds. . . . That plaintiff did not discover until on or about the 28th day of September, 1918 [the day the trial was begun], that said lead pencil line obscured the said words on said outside or exposed duplicate original. That said defendant Ferguson and plaintiff mutually intended to execute a chattel mortgage in which said words were not stricken out and that said mortgage was duly signed while both parties thereto were' under the impression and understood that said words had not been obscured.”
1. Although the reformation of a-chattel mortgage in what was otherwise a purely legal action for its enforcement was allowed in Stewart v. Falkenberg, 82 Kan. 576, 109 Pac. 170, the appellees question the propriety of such a proceeding and suggest that in that case the question of misjoinder of a suit in equity with a law action based on tort was not considered or discussed. We see no basis for an objection to the procedure followed, nor any way in which the rights of the defendants could be prejudiced thereby. The statute permits the joinder of legal and equitable causes of action and defenses. (Civ. Code, §§ 88, 97, Gen. Stat. 1915, §§ 6979, 6989.) In code states the practice of reforming an instrument in the same action in which its enforcement is sought by a legal remedy has been specifically recognized. (34 Cyc. 964; Taylor State Bank v. Ewald, 27 N. D. 606; Delaware Ins. Co. v. Hill, [Tex. Civ. App.] 127 S. W. 283. See, also, 23 R. C. L. 356, note 16.)
2. The contention is made that even if the mortgage might properly be reformed as between the mortgagor and mortgagee, the reformation should not be given any force as to the appellees because their rights had accrued while the instrument was defective. There is no possible way, however, in which the appellees could have been misled to their disadvantage by the defect, because the record showed a complete mortgage. By reason of that situation it was competent for the court to permit the reformation to be made effective as to them. It is true that the position of a creditor who seeks to seize mortgaged chattels in satisfaction of his claim is different from that of a purchaser, in that his rights as against an unrecorded mortgage are not affected by his having actual notice of its existence. Here, however, there was no want of record — the document on file gave the creditor legal notice of the plaintiff’s claim, whether or not he had any other information concerning it.
3. Moreover, while it is doubtless proper that the inadvertent striking out of the words in the document retained by the mortgagee should be recognized and corrected, such action is a mere matter of form. Inasmuch as the mortgage was prepared and signed in duplicate there were two originals, and the document filed with the register of deeds could be treated as the mortgage and enforced as such. “It is well settled that, where a writing is executed in duplicate or multiplícate, each of the parts is the writing which is to be proved, because by the act of the parties each is made as much the legal act as the other.” (International Harvester Co. v. Elfstrom, 101 Minn. 263, 266. See, also, Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629; 2 Wigmore on Evidence, § 1232; 17 Cyc. 517; First National Bank v. Jamieson, 63 Ore. 594.) In the case in which the language just quoted was used, the writing, including the signature, was produced in duplicate throughout by the use of carbon paper, but this was not true of the cases cited in its support. The situation here presented is not that of a contract supposed to be prepared in duplicate in which the two versions turn out to be dissimilar in respect to some material item, such as a number or amount. The extending of the pencil mark through the words “do hereby sell and mortgage unto,” in the paper retained by the mortgagee could perhaps be disregarded as an obvious inadvertence, the real purpose of the instrument being readily ascertainable from the language that remained. At all events, the instrument as it stood was either a good chattel mortgage of the same effect as that on file, or it was of no legal force whatever; it was not a completed contract of a different import.
4. An objection is made to the validity of the mortgage as against the appellees on the ground that the property intended to be covered is not so described as to make the instrument enforceable as to them. The description, which follows a recital that the property was in the possession of the mortgagor, reads: “All my personal property- of every kind and nature.” A provision follows as to the effect of an attempt to remove it from Cloud county, carrying a necessary implication that it was then located there; so that the mortgage by its terms covered all the personal property owned by Ferguson, and showed that it was in his possession and in that county. (Crisfield v. Neal, 36 Kan. 278, 13 Pac. 272.) If the description had read “Three mares and a colt,” and Ferguson had owned no other animals to which that description could apply, it would have been sufficient under the decision just cited, and under Brown v. Holmes, 13 Kan. 482, 492. There the conclusion reached was rested largely upon the fact that this court, in holding the description “one hundred and twenty-four head of mules, now in the territory of Kansas,” to be insufficient, had said that if the property had been described as all the mules the mortgagor had in the territory, or as the same then in the care of H. C. Branch, in Leavenworth county, Kansas, “third persons might . . . have been able to identify the property, aided by inquiries which the mortgage itself would in that case have indicated and directed.” (Golden and others, v. Cockril, 1 Kan. 259, 265, 266.)
“A mortgage of all the grantor’s property of a certain kind in a specified locality is sufficient.” (11 C. J. 461.)
That the property referred to belongs to the mortgagor is an element in its description. That he owns no other property with which that intended might be confused aids in its identification. A description of the mortgaged property as all the horses a man owned could be applied with more ease and certainty than if it covered only all over a certain age. That the mortgage covers all the mortgagor’s personalty of every sort makes it easier rather than harder to determine whether a particular piece of property is included. If it belongs to him it is subject to the lien. Any limitation imposes the need for applying some further test. We conclude that the mortgage was not void for want of a more definite description.
5. The appellants by way of cross appeal complain of the refusal of the court upon the sustaining of the demurrer to the amended petition to proceed to inquire into their right to the possession of the property taken, in accordance with the statute. (Civ. Code, § 184, Gen. Stat. 1915, § 7076.) As one rea son for refusing to enter into the inquiry, the court stated that during the five days allowed the plaintiff to amend his petition the jurymen had been discharged from attendance, and no jury was present. In any event, inasmuch as the amended petition is held not to' be demurrable, there can be no occasion for directing such an inquiry now.
The judgment is reversed, and the cause is remanded with directions to overrule the demurrer.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from an order granting an injunction restraining the enforcement of a city ordinance.
On December 10, 1919, the city of Wa Keeney enacted an ordinance prohibiting the use of fuel for certain purposes “until such time as further supplies may be obtained . . . in accordance with the rules and regulations of the national fuel administration.” The title of the ordinance set forth its purpose, which was to provide for “the conservation of the fuel supply during the existing emergency.” The ordinance prohibited public assemblages, other than funerals; prohibited the usual and ordinary church services and lodge meetings oftener than once each month, and provided for the closing of public schools, theaters, moving-picture shows, pool halls and billiard halls, but permitted a few kinds of business, deemed essential, to remain open during certain hours each day. Appropriate fines and forfeitures for the violation of the ordinance were provided.
The public school authorities of the city brought this action, alleging that the ordinance was unreasonable, arbitrary and oppressive, and that the city was without authority to interfere with the operation of the public schools, alleging further that the schools had on hand a sufficient supply of coal to continue operation. The answer of the defendants set forth a copy of the ordinance and admitted the intention of the city to enforce its provisions. The court sustained a motion for judgment in plaintiffs’ favor on the pleadings, and granted the injunction restraining defendants from closing the public schools. The defendants appeal.
No stay of the judgment was procured by the defendants and the appeal was permitted to take its ordinary course, no attempt being made to have the cause advanced for an early hearing.
It is apparent that the questions presented by the appeal have become moot by reason of the fact that the ordinance has spent its force. .It was enacted to cover an emergency which no longer exists. The mere appeal from the judgment did not stay the proceedings and the school authorities were permitted to continue the operation of the school during the existence of the emergency. The validity of the ordinance is no longer a matter of controversy which affects the rights of either party. No order this court might make could be carried into effect. The case therefore becomes moot, leaving nothing to be determined except an abstract proposition of law which concerns neither party. (Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104; Anderson v. Cloud County, 90 Kan. 15, 132 Pac. 996, and cases cited in those opinions.)
The appeal is dismissed.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from an adverse judgment in a bastardy proceeding, claiming that the court erred in the rejection and admission of testimony and the refusal to grant a new trial, and asserts that the verdict was contrary to the evidence.
The prosecuting witness was a Polish girl employed as chambermaid at the Harvey House in Dodge City, the defend ant being a porter there, in which position he had been employed for a good many years. It is contended that the unsupported testimony of the girl is too unreasonable for belief in view of the fact that the defendant denied all her charges and produced witnesses to his good reputation. But the description of the relations between the two given by the girl covered so much time and was. so full of details that it is hard to believe they were manufactured, and we find nothing in the record to render them incredible. Her story seemed to satisfy the jury who heard the cross-examination and were able to judge of the girl’s credibility in a way impossible to us.
Complaint is made that the court refused to let the defense show that during some of the time covered by the alleged intimacy with the defendant the girl associated with another man and at one time made a statement indicating intimacy with him. Objection was made to this on the ground that it was too remote in point of time. The court stated that any misconduct with other men within one or two months of the period of gestation might be shown, whereupon the defendant’s counsel stated that he could show by witnesses that the girl was out-frequently late at night with this other man, and that this conduct continued up to about the time she left Dodge City—
“I will take this matter up a little later when I know just what the proof will be as to that, but you deny the right to introduce this testimony with regard to this specific act notwithstanding we could connect it up to a time within the period of gestation?”
to which the court replied “Yes.” The record does not show any further attempt to introduce this or similar evidence or to produce it in support of the motion for a new trial, which frees the matter from anything which amounts to prejudicial error.
After the prosecuting witness came back to Kansas with her child she stayed for some time at the county farm near Dodge City, and it was attempted to prove that during this stay she was guilty of certain extremely coarse and vulgar conduct. This proof seems to have been sought for the purpose of affecting her credibility. An early decision by this court, frequently quoted in former years, was to the effect that loss of virtue does not imply a lack of truthfulness. (Craft v. The State, 3 Kan. 450; 2 Wigmore on Evidence, § 924; 48 L. R. A., n. s., 272.) No authorities are cited supporting the competency of this testimony, and we do not deem its rejection erroneous.
Finding no prejudicial error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Sam Goldstein sued Wiley Salisbury on a note given for a mare. Salisbury defended on the ground of the breach of a warranty that she would work anywhere except that she would not drive single. Judgment was rendered for the defendant and the plaintiff appeals.
The plaintiff contends that there was no evidence of either the making of the warranty or its breach if it was made; that it was conclusively shown that the defendant did not rely on the warranty; and that the verdict was given-under the influence of passion and prejudice.
The defendant gave this testimony, which we consider abundant to support a finding that the guaranty was made:
“I told him (the plaintiff) over the phone that I would buy the mare but I wanted something- gentle that my boy who was fifteen years old could work. He said ‘I will guarantee her anywhere except single,’ and I said ‘If you will guarantee her and will take my note for six months I will take the mare,’ and he says ‘if the bank says you are good you can have her.’ ... I then said to him ‘Now this mare is good to work or you can take this note back. You will have to fill the guarantee or take the note back.’ I then said to him, ‘If this mare don’t work you take the note’ and he said ‘all right. If she don’t work good I will give you your money back.’ ”
The defendant further gave the following testimony which we regard as sufficient to sustain a finding of the breach of warranty:
“I went home and the next day I caught the mare and hitched her to a harrow. I put her on the right side and took the lines myself, and she made a lunge about 16 feet high and came back on the harrow. We got her out and straightened around and couldn’t get her started and she turned her head and throwed herself twice and we couldn’t get her started. I went to the phone and called Mr. Goldstein and said to him, ‘The mare won’t work.’ And he asked me where I hitched her and I said to a harrow. And he said, ‘Don’t hitch her to a harrow, hitch her to a wagon on the left side.’ I said, ‘all right I will try that.’ The next morning I hitched her to a wagon on the left side. I hit the horse and she wouldn’t start and she reared up and got her feet over the tongue and I got down and got her foot off and it was the same thing over, except she didn’t get her feet, I mean over the neck yoke. So I unhitched her and put her in the barn. I called Goldstein right away and told him ‘She won’t work, I don’t want the mare at all. She is not worth her hide to me. What do you want me to do with her?’ He said, ‘Put her in the pasture where you got her and I will come out Sunday and work her.’ I took the mare and put her in the pasture where he told me to. That was Wednesday. On Saturday following that, Goldstein phoned me he wasn’t coming out Sunday, he said, ‘You bought that mare and you got to keep her.’ ”
It is of course immaterial for present purposes that the evidence of the defendant was contradicted by that of the plain tiff, the credibility of the witnesses being a matter for the determination of the jury and the trial court.
The contention that it was conclusively shown that the defendant did not rely upon the warranty is based upon the circumstance that he testified to having said to a third person that he did not have any confidence in the plaintiff, the conversation referring to a promise of the latter to pay him a commission for the sale of another horse. The fact that the defendánt said he had no confidence in the plaintiff does not necessarily prove that he would place no reliance whatever upon his agreement. He may have been indulg-'ng in hyperbole, as he doubtless was when he testified that the mare lunged about sixteen feet high. In order to enforce the guaranty he need not have had absolute confidence in it and relied solely upon it; his insistence to the plaintiff that he would not buy the mare without it was some evidence that he regarded it as a part of the inducement to the trade.
The specifications in support of the contention that the jury was influenced by passion and prejudice really amount to an argument that the verdict was against the weight of the evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Hall, J.:
This is an appeal in a workmen’s compensation case. The claimants, appellants herein, are the widow and four minor children of John D. Snedden, deceased, who was accidentally killed while pulling down the walls of a two story brick building at Smith Center, Kansas, on the 8th day of March, 1956. The Workmen’s Compensation Commissioner denied compensation to the claimants. On appeal to the district court the court adopted as its own findings of fact and conclusions of law those made by the commissioner and affirmed the award of the commissioner denying compensation.
The Commissioner had made the following findings of fact:
“Summary of the Evidence
“Bernal E. Nichols, testified as a witness for the claimant. He stated that he was a contractor; that he entered into an agreement to use the decedent to pull down some walls of a school building he had obtained a contract to raze; that he used the decedent and his tractor as well as had the decedent do hauling for him; that he had the right to fire claimant; that he did not tell the decedent how to perform the work; that the decedent hired his own employees and was a contractor engaged in other jobs at the same time he was assisting in the razing of the building.
“Henry M. Dodson, a witness for claimant testified that he finished the job commenced by the decedent; that he was paid $8.00 an hour and that his son operated the tractor at $1.50 an hour; that he hauled brick with his truck at the same rate as the decedent $1.00 an hour to load and $1.00 a load to haul.
“Bemal E. Nichols, was recalled by respondent. He further testified that the decedent gave instructions as to where to hook the cables since he had the experience on this work and that Nichols informed his (Mr. Nichols) men where to hook the cables based on the decedents experience and knowledge.
“Findings
“It is found, in addition to the admissions of the parlies, that the decedent herein was not an employee of Bemal Nichols; that he was an independent contractor, with employees of his own, in business for himself assisting Bemal Nichols with the razing of a building when he met his death by being crushed with falling debris. It is further found that the parties were not governed by the Kansas Workmen’s Compensation Act.”
The facts found by the court and Commissioner were essentially undisputed. Common School District Number Four in Smith County, Kansas, built a new school building on a site adjacent to the old school, a two story brick building. The district decided to raze the old building and called for bids on the job. Nichols was the successful bidder and by the terms of the contract he became the owner of the building with the obligation to raze it and clear away the debris.
Shortly after the letting of the job, Snedden approached Nichols about helping raze the building. No agreement was made between the parties at the first meeting, but Nichols was to call Snedden if he could use him. A couple of weeks later Nichols called Snedden about the job. No agreement was reached in these conversations but they did talk about how the walls should be taken down. Snedden had a Caterpillar tractor, cables, scoop, bulldozer and other equipment which Nichols did not have.
Without burdening the record with a detailed account of the negotiations the parties finally got together in an oral agreement. It was in the performance of this job that Snedden lost his life.
The claimants make six assignments of error but concede the principal question involved in this appeal is whether or not Snedden was an independent contractor or employee at the time of his death. The other errors involved relate back to this principal question.
The Commissioner and the district court both found Snedden to be an independent contractor and denied compensation.
On appeal the claimants contend that there was no substantial, competent evidence to support the findings of the court that Snedden was an independent contractor and not an employee of the respondent, Nichols, at the time of his accident and death.
The claimants argue vigorously and persuasively that the judgment is not supported by substantial, competent evidence when measured by the rule and standards applied in other cases determined by this court. They call our particular attention to those cases which involved the similar question of employee or independent contractor, citing among others, Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120; McKinstry v. Coal Co., 116 Kan. 192, 225 Pac. 743; Shay v. Hill, 133 Kan. 157, 299 Pac. 263; Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P. 2d 1; Davis v. Julian, 152 Kan. 749, 107 P. 2d 745; Schroeder v. American Nat'l Bank, 154 Kan. 721, 121 P. 2d 186; Kober v. Beech Aircraft Corporation, 177 Kan. 53, 276 P. 2d 335; and Evans v. Board of Education of Hays, 178 Kan. 275, 284 P. 2d 1068.
While the question of employee or independent contractor is in these cases cited, only the approval or disapproval of the findings of the lower court on the issue was before the court on appellate review. With the exception of the Pottorff case the decision of the lower court was affirmed because there was substantial, competent evidence to support the decision. In the Pottorff case the court did reverse a finding the deceased was an independent contractor and not an employee. This case was decided before the passage of the workmen’s compensation law and involved the primary question of whether a contract between the parties relieved the employer of tort liability.
This rule of law is well established and with much certainty. The question before the trial court below was whether the decedent was at the time of his injury and death acting as an independent contractor or whether he was an employee of the respondent. With the issue resolved as a question of fact below it is not before us now. Under the provisions of G. S. 1949, 44-556, the appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. While we have the same transcript before us as the district court it is not the province of this court to determine whether the evidence duly weighed and considered in the light of the legal definition of independent contractor, or master and servant, supports one conclusion better than another. The question here is: “Was there evidence, whether opposed or not, warranting a reasonable inference, although a contrary inference might reasonably be drawn, to sustain the judgment of the district court?” (Shay v. Hill, supra; Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259; McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652; Shue v. LaGesse, 173 Kan. 309, 245 P. 2d 966; Burns v. Topeka Fence Erectors, 174 Kan. 136, 254 P. 2d 285; Rothman v. Globe Construction Co., 171 Kan. 572, 235 P. 2d 981; Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Johnson v. Skelly Oil Co., 181 Kan. 655, 312 P. 2d 1076; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106; and Evans v. Board of Education of Hays, supra.)
We have also held many times that whether a judgment is supported by substantial, competent evidence is a question of law as distinguished from a question of fact (Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103; Beaver v. Tammany Industries, 180 Kan. 440, 304 P. 2d 501; Pinkston v. Rice Motor Co., supra, and authorities cited therein).
It is the general rule that the term “independent contractor” is one who, exercising in independent employment, contracts to do a piece of work according to his own methods without being subject to control of his employer, except as to the result of his work, and an independent contractor represents the will of his employer only in the result of his work and not as to the means by which it is accomplished. (Pottorff v. Mining Co., supra; Shay v. Hill, supra; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868; Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P. 2d 829; Evans v. Board of Education of Hays, supra.)
It is not the exercise of direction, supervision or control over a workman which determines whether he is a servant or an independent contractor, but the right to exercise such direction, supervision or control. (Schroeder v. American Nat’l Bank, supra; Davis v. Julian, supra; Evans v. Board of Education of Hays, supra; Shay v. Hill, supra; McKinstry v. Coal Co., supra.)
The “right of control test” is not an exclusive test to determine independent contractor or employee relationship. Other relevant factors must also be considered. See the authorities in the paragraph above.
In the instant case the court found the respondent Nichols was a contractor; that he entered into an agreement to use the decedent to raze the walls of the school building; that he used the decedent and his tractor and also had the decedent do hauling for him; that he had the right to fire decedent; that he did not tell the decedent how to perform the work; that the decedent hired his own employees and was a contractor engaged in other jobs at the same time he was doing this one. The court also found that it was the decedent who gave instructions based on his experience and knowledge as to where to hook the cables on the building.
We have carefully examined the evidence in the record before us and after applying the aforementioned rules of law we have concluded that there was substantial, competent evidence to support the trial court’s finding that the decedent was an independent contractor at the time of his injury and death and not an employee of respondent.
Other questions raised by the claimants have been examined but in view of the holding here are without substantial merit insofar as they affect the conclusion reached by the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal arises out of a contempt of court proceeding in a divorce action, then pending on appeal in this court as case No. 40,326. Plaintiff was found guilty of contempt on June 27, 1956, of refusing to comply with the order of the district court of Sedgwick County entered March 12, 1956, granting the defendant the right of visitation of their two minor children on alternate week ends away from their home and to have their care and custody for the first half of the summer vacation beginning May 28,1956. Pursuant to the judgment of conviction, plaintiff was sentenced on June 29, 1956, to immediate confinement in the county jail for a period of 90 days. On June 30, 1956, following plaintiff’s sentence and imprisonment and upon failure of the district court to set a bond for appeal and for stay of execution, this court ordered that further proceedings against her be stayed and that she be released from custody pursuant to G. S. 1949, 20-1205 upon her giving bond in the amount and upon the conditions specified. The plaintiff has appealed from her conviction of contempt of court and from the sentence of confinement imposed thereunder.
On January 12, 1957, this court affirmed the judgment of the district court entered March 12, 1956, granting the defendant the divorce; sustained its order dividing the property of the parties, and concluded that it did not abuse its discretion with respect to its child custody and visitation order outlined above. (Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167.)
The pertinent facts as shown by the record necessary to the disposition of the questions presented, are as follows: Pending the appeal of the divorce action plaintiff filed in this court, on April 4, 1956, her application to stay all proceedings in the district court and particularly tire order concerning the custody of the minor children and the right of visitation by the defendant. This application was denied April 27,1956.
On May 14, 1956, and pursuant to G. S. 1949, 60-3322, plaintiff filed with the clerk of the district court a supersedeas bond in the penal sum of $50,000, which was approved by the clerk and by the trial judge who tried the divorce action, the condition of which was,
“. . . that the said Eudora Goetz will abide the judgment and release any impounded monies and sign conveyances and transfers of real and personal property, if the judgment of the trial court be affirmed in whole or in part, and pay the costs.”
On June 1, 1956, the defendant instituted the contempt proceedings in the district court by filing a motion for citátion, obtaining an order for citation to issue, causing citation to show cause to be served upon plaintiff, and filed a verified accusation in contempt charging and accusing the plaintiff of knowingly and willfully disobeying and violating the order of the court as follows: That plaintiff refused to permit defendant to have custody of their two minor sons at the times specified in the March 12,1956, order of the court; that plaintiff was fully aware of the order of the court; that she had been in attendance of the court at the time the order was made, and that plaintiff stated publicly she did not intend to comply with such order. The prayer was that plantiff be adjudged guilty of direct and indirect contempt and punished by fine or imprisonment and that she be ordered to pay defendant his costs and expenses.
On June 2,1956, plaintiff filed in this court her second application to stay proceedings in the district^ court pending the appeal of the divorce action in which she alleged the filing and approval of the supersedeas bond in the sum of $50,000; the pendency of the contempt proceeding in the district court; and, that her appeal was taken in good faith to secure a review of all of the orders of the district court and particularly to prevent any injustice being done to the minor children. On June 8, 1956, this court denied plaintiff’s second application for stay of proceedings and directed that compliance by plaintiff with the order of the district court relating to the custody of the minor children would not in any manner prejudice her right to prosecute her appeal.
On June 11, 1956, plaintiff entered her special appearance in the contempt proceeding and objected to the jurisdiction of the district court pending the appeal of the divorce action and moved to dismiss the contempt citation and to strike from the files the motion for citation, accusation in contempt, citation to show cause and the order for citation to issue for the reason that such papers showed on their face the charge of contempt was based upon plaintiff’s failure to comply with the order of the district court, which was suspended by her supersedeas bond and which relieved her from compliance with such order during the pendency of the appeal.
On June 12, 1956, plaintiff filed her answer to the accusation in contempt. She renewed her motion to dismiss all proceedings of contempt; she denied all of the allegations contained in the accusation; she alleged that her conduct with respect to the order appealed from had been respectful to the court and was based upon her belief that her appeal and the supersedeas bond did not require her compliance with the order complained of by the defendant. At the • suggestion of the district court and on June 12,1956, plaintiff filed a motion to obtain a temporary order for child custody, visitation and support of herself and the minor children pending the appeal.
The journal entry shows that on June 18, 1956, the district court sustained plaintiff’s oral motion for separate hearings on the change of custody and visitation rights, and of defendant’s contempt accusation. Upon trial to the court, plaintiff’s motion to change custody and visitation rights was denied, and her motion to dismiss and to strike all the contempt proceedings was overruled. On June 27, 1956, defendant’s accusation in contempt was heard, resulting in a finding by the district court that plaintiff was guilty of contempt of court, and it ordered that sentence be stayed until June 29, 1956, to permit her to purge herself from the contempt and from the necessity to appear if she complied with the existing orders of the court, otherwise to appear in court June 29, 1956, for imposition of sentence.
On June 28, 1956, plaintiff filed a motion for a new trial and gave notice of her intention to appeal from her conviction of contempt. She requested the district court to fix bond pursuant to G. S. 1949, 20-1205 to stay execution of its judgment. Bond was not fixed by the district court after the imposition of sentence, and plaintiff’s motion for a new trial was overruled on July 26, 1956.
On June 29, 1956, the plaintiff appeared in court where she was given an opportunity to show whether she had purged herself of contempt by delivering the minor children to the custody of the defendant. Plaintiff made a statement to the court to the effect that the children were enrolled in a community music program; that they had one week of the program left; that she was willing they be with defendant for the remainder of the summer if they could finish their concert on the following Friday evening, and that she did not wish to irritate the court or any individual, after which the following proceedings occurred:
"The Court: The court finds that you have not purged yourself of the contempt of judgment in this case. I will ask you one more question. Are you at this time willing to turn these children over to the custody of their father without further difficulty? Mrs. Goetz: As of today? The Court: As of this moment. Mr. Morris: May I ask a question? The Court: You may not. Mrs. Goetz: Well, I have no choice. If your Honor, of course, says that is what I shall do, I will do it. I have no choice. It is not my wish. The Court: On finding of guilty of contempt you are sentenced to the county jail for ninety days. Sentence is to begin immediately. Take her immediately.”
Plaintiff was immediately confined in the county jail in compliance with that order although a commitment for her imprisonment was never issued by the clerk of the district court. Immediately following her confinement, the district court authorized the defendant to go to the home and take custody of the children, and, if necessary, to procure the assistance of the sheriff.
On June 29,1956, plaintiff appealed from the order (1) overruling her motion for a temporary order for child custody and visitation rights; (2) overruling her motion to dismiss the contempt proceedings and to strike from the files all such proceedings; (3) overruling her motion to dismiss at the close of the evidence of the accusation in contempt; (4) finding her-guilty-of contempt of court, and (5) all orders made on June 29, 1956, imposing sentence upon her. Thereafter and on August 24, 1956, a journal entry was filed showing the proceedings had and the sentence imposed upon the judgment of conviction.
Plaintiff first asserts that the district court lost jurisdiction to enforce the child custody and visitation order entered March 12, 1956, and that it erred in refusing to dismiss and to strike from the files the contempt proceedings, the contention being that since her appeal was timely made (G. S. 1949, 60-1512) the supersedeas bond stayed such order, and, consequently, that court did not have power to find the plaintiff guilty of contempt. Plaintiff cites and relies upon Ex parte Wrather, 139 Texas 47, 161 S. W. 2d 774; McNealey v. Rouse, _ Mo __, 264 S. W. 383; Wilkins v. Corey, 172 Minn. 102, 214 N. W. 776; Starns v. Starns, 174 La. 743, 141 So. 447; and, Foster v. Foster, 5 Cal. (2d) 669, 55 P. 2d 1175. We have examined these authorities but will not review them in this opinion since we have concluded they are inapplicable in view of the clear and unambiguous language of G. S. 1949, 60-3322 and G. S. 1955 Supp. 60-1510.
A resort to the provisions of G. S. 1949, 60-3322 clearly indicates that a supersedeas bond executed and filed pursuant to that section only operates to stay execution of any judgment or final order sought to be reversed: First, when such judgment or final order directs the payment of money; second, when it directs the execution of a conveyance or other instrument; third, when it directs the sale or delivery of possession of real property; and fourth, when it directs the execution or delivery of documents. Insofar as the divorce decree directs the payment of money and the division of property between the parties, plaintiff’s supersedeas bond (which adopts the terminology of the second and fourth paragraphs of the statute) had an authorized function to perform. However, the child custody portion of the decree sought to be reversed did not involve the pay ment of money by plaintiff; nor did it direct the execution of a conveyance, the execution or delivery of documents or the sale or delivery of possession of realty. Manifestly, the statute does not authorize the filing of a bond to supersede a child custody order (C. B. U. P. Rld. Co. v. Andrews, Adm’r., 34 Kan. 563, 9 Pac. 213; Heizer v. Pawsey, 47 Kan. 33, 35, 27 Pac. 125), and the legislature wisely deemed that child custody decisions should be left to the determination of the district court pending final disposition of an appeal.
Moreover, there is another equally compelling reason why the supersedeas bond did not have the effect plaintiff contends it had. The decisions of this court are uniform and none to the contrary, that when a petition for divorce is filed and a part of the relief sought is the custody and control of minor children, jurisdiction of the district court attaches immediately over the divorce action and the future welfare of the minor children during the pendency of the action and until final disposition thereof (G. S. 1949, 60-1507; Bennett v. Bennett, 175 Kan. 692, 266 P. 2d 1021; Duffy v. Duffy, 176 Kan. 112, 114, 115, 268 P. 2d 931); that when a divorce is granted, the provisions of G. S. 1955 Supp. 60-1510 require the district court to make not only an order concerning the custody of the minor children but also to provide for their support (Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561; Anderson v. Anderson, 167 Kan. 494, 207 P. 2d 453; Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646); that such jurisdiction over the custody, control, support and education of such children is a continuing jurisdiction (White v. White, 160 Kan. 32, 159 P. 2d 461; Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127; Trent v. Bellamy, 164 Kan. 438, 190 P. 2d 400; Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695; Maston v. Maston, 171 Kan. 112, 229 P. 2d 756; Decker v. Decker, 171 Kan. 380, 233 P. 2d 527; Powell v. Powell, 173 Kan. 435, 437, 249 P. 2d 630; Jennings v. Jennings, 174 Kan. 305, 308, 255 P. 2d 618; Duffy v. Duffy, supra; Leach v. Leach, 179 Kan. 557, 296 P. 2d 1078; Goetz v. Goetz, supra); and, as has been repeatedly held, an order awarding custody is not a finality — the district court has jurisdiction to modify or change any such order whenever the circumstances make such change proper, but until modified or changed, the original order fixing custody stands (Thornbrugh v. Thornbrugh, 175 Kan. 56, 59, 259 P. 2d 219, and cases cited above). In our opinion, the district-court is not divested of such continuing jurisdiction by reason of an appeal by either or both parties from the judgment granting the divorce and awarding custody of the minor children to one of them, and otherwise providing for their care, education and visitation, since it is elementary that the power of this court to review a child custody order on appeal is limited solely to determining whether the record clearly discloses the district court abused its discretion in making the order it made (Travis v. Travis, 163 Kan. 54, 58, 180 P. 2d 310; Dodd v. Dodd, 171 Kan. 46, 229 P. 2d 761; Bierce v. Hanson, 171 Kan. 422, 429, 233 P. 2d 520; Kamphaus v. Kamphaus, 174 Kan. 494, 497, 256 P. 2d 883; Goetz v. Goetz, supra).
While this court, in the exercise of its appellate jurisdiction, has the power, pending an appeal of a divorce action, to provide for the temporary custody of minor children until the determination of the appeal (Kjellander v. Kjellander, 90 Kan. 112, 132 Pac. 1170; Paul v. Paul, 121 Kan. 88, 91, 245 Pac. 1022; Ogg v. Ogg, 126 Kan. 310, 311, 267 Pac. 977), it denied two separate applications of plaintiff to stay the child custody order of the district court, thus it is clear such order was not stayed by the supersedeas bond nor by this court pending plaintiff’s appeal. The district court had full power and authority to require compliance with this order concerning the custody and visitation of the minor children pending the appeal, and to inquire into plaintiff’s reasons for failing to comply, and upon proper showing, to find her guilty of contempt. An order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed, modified or set aside by orderly and proper proceedings.
Plaintiff maintains that there was insufficient evidence to support the judgment of contempt, contending she acted upon the advice of counsel and willful intent to violate the order being entirely lacking, she could not be found guilty. We have not been persuaded. It would serve no useful purpose to detail the evidence on that point, nor extend this opinion by doing so. But suffice it to say there was ample evidence to support the judgment of contempt that plaintiff willfully refused to comply with the order of the district court. We refer to In re Pierce, Petitioner, 54 Kan. 519, 38 Pac. 812, where it was said:
“. . . It appears that the defendant, in signing the scrip, acted upon the advice of R. A. Cameron and A. J. Jones, two reputable lawyers, whom he consulted. One of them was the late county attorney. This advice was no justification, but may be considered in the application to purge the contempt, . . .” (1. c. 522.)
The plaintiff next contends the district court erred in overruling her motion for a temporary order for child custody, visitation and support of plaintiff and the minor children pending appeal of the divorce action. In considering this point, we need only to refer to the authorities heretofore cited to the effect that the authority of this court on appellant review with respect to a child custody order is limited solely to determine whether the record clearly discloses the district court abused its discretion in making the order it made. We have reviewed the record and cannot say as a matter of law that the district court abused its discretion in refusing to change the visitation order. However, if other applications are made for that purpose, it would seem proper for the district court to take into consideration the fact that the welfare of the minor children might best be served, at least during the school year, if their custody for that period was permanently fixed in one of their parents.
Plaintiff asserts that the contempt proceedings are to be regarded as criminal in nature and are to be conducted in accordance with the principles and rules applicable to criminal cases. We have come to a contrary decision. These proceedings were in their nature to compel plaintiff to abide the order of the district court and were remedial in character to achieve that result. Their purpose was intended to coerce plaintiff to comply with the child custody order for the benefit of the defendant — so he might have the companionship of their minor sons during the first one-half of the summer vacation. To that extent they were civil in nature and were for indirect civil contempt, notwithstanding there was inherent in them a vindication of the district court’s authority. However, such indirect vindication did not change their character from merely coercive and remedial into that which was solely punitive in character, although the sentence imposed so implies. (Barton v. Barton, 99 Kan. 727, 728, 163 Pac. 179; Holloway v. Water Co., 100 Kan. 414, 421, 167 Pac. 265; Smith v. Clothier, 113 Kan. 47, 51, 52, 213 Pac. 1071; State, ex rel. v. Miller, 147 Kan. 242, 75 P. 2d 239; Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 269 P. 2d 435; 12 Am. Jur., Contempt, § 6, p. 392; 17 C. J. S. Contempt §§ 5, 6, 7, pp. 7, 8.)
In Barton v. Barton, supra, the defendant in a divorce action was adjudged guilty of contempt in willfully failing to make payments for expenses and the support of a minor child. In the opinion it was said:
“On this appeal he insists that the contempt feature of the proceeding is criminal in its nature and should have been prosecuted in the name of the state by the county attorney or attorney-general. The primary object of the proceeding was to protect private rights; that is, to compel compliance with the decree of the court rendered in a civil action, and only incidentally to vindicate the authority of the law. While the punishment of such contempt takes on a criminal phase, it is really remedial in character and is sometimes designated as a civil contempt. . . .” (1. c. 728.)
In Hendrix v. Consolidated Van Lines, Inc., supra, it was held:
“In a general way, civil contempt is defined as being the failure to do something ordered by a court to be done for the benefit or advantage of another party to the proceeding, that is, disobedience of a court order or decree made in behalf of a litigant. A proceeding in civil contempt ordinarily is remedial and coercive in nature, and is brought for the enforcement of private rights and remedies.” (Syl. f 1.)
“In a general way, criminal contempt is defined as being conduct which is in disrespect of a court or its processes, or which obstructs the administration of justice.” (Syl. ¶ 2.)
Although the district court demonstrated its patience with plaintiff and extended to her the privilege of purging herself of contempt prior to imposition of sentence, and while we do not condone her conduct, we think the district court erred in imposing the sentence which it imposed. As previously indicated, plaintiff was guilty of indirect civil contempt, the punishment for which is remedial and for the benefit of the complainant — here, the defendant. Punishment for civil contempt is ordered where the party has refused to do an affirmative act required by the provisions of an order, which, either in form or in substance, is mandatory in its character. In such a case, imprisonment is not inflicted as punishment, but is intended to be remedial by coercing the party in contempt to do what he has refused to do, and the proper sentence is that the party in contempt stand committed unless and until he performs the affirmative act required by the court’s order. (In re Burrows, Petitioner, 33 Kan. 675, 681, 7 Pac. 148; In re Pierce, Petitioner, supra; Barton v. Barton, supra, [l. c. 729]; Smith v. Clothier, supra, [l. c. 52]; Wohlfort v. Wohlfort, 116 Kan. 154, 163, 164, 225 Pac. 746; Davison v. Davison, 125 Kan. 807, 817, 266 Pac. 650; Johnson v. Johnson, 148 Kan. 682, 685, 686, 84 P. 2d 888; Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 31 S. Ct. 492, 55 L. ed 797, 34 L. R. A. [N. S.] 874; United States v. Mine Workers, 330 U. S. 258, 67 S. Ct. 677, 91 L. ed. 884.) It seems clear to us that the district court imposed a sentence which was wholly punitive and we therefore hold it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt. As stated by Mr. Justice Lamar in Gompers v. Bucks Stove & Range Co., supra, “The result was as fundamentally erroneous as if in an action of ‘A. vs. B. for assault and battery,’ the judgment entered had been that the defendant be confined in prison for twelve months.”
The Gompers case, supra, is one of the leading and recognized authorities with respect to the distinction between civil and criminal contempt. In that case the court considered and made a very clear analysis of that distinction, as follows:
“Contempts are neither wholly civil nor altogether criminal. And ‘it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both.’ ... It is not the fact of punishment but rather its character and purpose that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. ...
“For example: If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. Unless these were special elements of contumacy, the refusal to pay or to comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in In re Nevitt, 117 Fed. Rep. 451, ‘he carries the keys of his prison in his own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.
“. . . If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operatés, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.”
“The distinction between refusing to do an act commanded, — remedied by imprisonment until the party performs the required act; and doing an act forbidden, — punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.” -
“There is another important difference. Proceedings for civil contempt are between the original parties and are instituted and tried as a part of the main cause. But on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause. . . .”
The sentence imposed was unqualified and contained no provision for plaintiff’s release should she purge herself of contempt— it did not permit her to unlock the door of the county jail and discharge herself by doing what she had previously refused to do. There was therefore a departure — a variance — between the indirect civil contempt proceedings adopted and the punishment imposed —a punitive sentence appropriate only to a proceeding for criminal contempt. The result is the sentence imposed upon plaintiff was erroneous, and it is therefore set aside. Not all of the proceedings in the district court were void. That court had jurisdiction of the subject matter and of the plaintiff. The judgment of conviction of contempt has been determined to be valid, and plaintiff stands before that court as she did on June 27, 1956. Whether plaintiff is now complying with the child, custody and visitation order and has thus purged herself of contempt is not before us. That is a matter for inquiry by the district court. The sentence imposed upon plaintiff on June 29,1956, is ordered set aside and the judgment as herein modified is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
This is the second appearance in this court of an action (See Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168, affirming the overruling of a demurrer to the petition) brought by plaintiff against defendant to recover a judgment under the provisions of G. S. 1949, 44-512a, for the entire amount due under an award of compensation entered by the Workmens Compensation Commissioner, on the ground that defendant had failed to pay part of the medical expenses of the attending physician, as provided in the award, within two weeks after plaintiff’s demand in the form provided by statute.
Reference to the opinion in the first appeal discloses:
1. A factual statement, about which there can be no dispute, which reads:
“On December 30, 1955, the workmen’s compensation commissioner awarded plaintiff weekly compensation for an indefinite period not to exceed 415 weeks for injuries suffered by plaintiff while in the employ of the defendant. Certain items of medical expenses were included as a part of the award. One of these was a charge by Dr. Samuel B. Muller in the sum of $396. No appeal was taken from the award. At the time this action was filed, all payments under the award, including weekly compensation, had been paid, except that part of the award of $396 due Dr. Muller for medical treatment of plaintiff. On February 6, 1956, plaintiff made written demand on defendant for payment of ‘all unpaid compensation then due including a medical expense award, . . .’ On February 23, plaintiff filed his petition in the district court of Crawford County claiming the balance of the award in a lump sum, by reason of defendant’s failure to pay on demand the amount due Dr. Muller for medical treatment. From an order of the trial court overruling defendant’s demurrer to plaintiff’s petition, on the ground it failed to state facts sufficient to constitute a cause of action, defendant appeals.” (p. 287.)
2. A recital of the appellate issue involved which reads:
“The question presented is whether, under G. S. 1949, 44-512a, the employer’s failure to pay within two weeks after employee’s written demand, a part of the medical expense incurred in the treatment of the employee, and included in the award made to the employee by the workmen’s compensation commissioner, accelerates and makes the employer liable to pay the entire award, where there is no default in the weekly compensation due the workman under an indefinite award for temporary total disability, for a period of not to exceed 415 weeks.” (pp. 287, 288.)
3. A discussion and decision of all questions pertinent to a re view of such appellate issue, supplemented by a syllabus, reflecting our views as to the law of the case, wherein we held:
“The furnishing of medical aid to an injured employee is payment of compensation within the meaning of G. S. 1955 Supp., 44-510.
“An award by the workmen’s compensation commissioner, providing for payment of medical expenses for the care and treatment of an injured employee, is an award of compensation to the workman, as that term is used in G. S. 1949, 44-512a, to the same extent as the provision in the award for weekly payments of compensation made in his favor.
“Under G. S. 1949, 44-512a, a failure to pay within two weeks after written demand, any part of the compensation awarded when due, or any installment thereof including medical expenses, makes the entire amount of compensation awarded immediately due and payable, and authorizes the workman to maintain an action for the recovery of the entire amount of compensation awarded.
“The phrase ‘said employee or other person entitled to said compensation may maintain an action,’ as used in G. S. 1949, 44-512a, is construed to mean the employee or his dependents who are entitled to compensation.
“The provisions of G. S. 1949, 44-512a, are applicable to awards for an indefinite period of time.” (Syl. fjf 1, 2, 3, 4 & 5.)
When the case reached district court after our first decision (180 Kan. 286) defendant filed an answer in which, after admitting the filing and entry of an award of compensation, it denied generally all other allegations of the petition. Thereafter the parties agreed the cause should be submitted to that tribunal on a stipulation of facts which, quoted as to some portions and stated in substance as to others, reads:
“1. Defendant admits the allegations of paragraphs 1, 2 and 3 of plaintiff’s petition except the following part of said paragraph 3: ‘that the medical award of $396.00 awarded and due Dr. Samuel B. Muller was not fully paid by the defendant or its said Workmen’s Compensation Insurance Carrier’; defendant further admits the allegations of paragraph 4 of plaintiff’s petition except the following: ‘failed to pay within the two week period following said demand of February 6, 1956, the charges of Dr. Samuel B. Muller which had been awarded, as aforesaid, and which sum was then due in the sum of $396.00’; to the remaining allegations of plaintiff’s petition, defendant’s answer filed herein is a general denial.
“2. That prior to the hearing of this case before the Workmen’s Compensation Commissioner of the State of Kansas and on or about May 23, 1955, Dr. Samuel B. Muller submitted to defendant’s insurance carrier, a statement for services showing the amount due to be $86.00, a copy of which statement is attached marked Exhibit ‘A’; that thereafter and on July 6, 1955, defendant’s Workmen’s Compensation insurance carrier, Allied Mutual Casualty Company, Des Moines, Iowa, issued its draft No. 39716 in the amount of $86.00 payable to Samuel B. Muller, M. D., which draft was duly transmitted by United States mail for delivery to said Dr. Samuel B. Muller; that Dr. Samuel B. Muller would testify in the matter if this case was tried that said draft was never received, by him and that testimony would show that said draft had never been presented for payment to the bank on which it was drawn, Central National Bank and Trust Company, Des Moines, Iowa.
“3. That at the hearing of this case before the Workmen’s Compensation Commissioner of the State of Kansas on October 24, 1955, the following proceedings were had:
(Here follow statements made by attorneys and the examiner at such proceeding, disclosing that defendant agreed to assume all doctor bills for all services rendered by Dr. Muller to plaintiff from the date of the accident in question to the date of the compensation hearing and that the amount due therefor to such date was $396.)
“4. That thereafter and on December 30, 1955, the Commissioner issued an award of compensation as mentioned in paragraph 3 of plaintiff’s petition which included in medical award the sum of $396.00 due Dr. Samuel B. Muller, which had not been paid on February 6, 1956.
“5. That on or about January 19, 1956, R. L. Letton, one of the attorneys of record for defendant and for said. Allied Mutual Casualty Company, discussed with Dr. Samuel B. Muller the matter of the draft dated July 6, 1955, in the amount of $86.00 which the records of Allied Mutual Casualty Company show had been issued but had not been presented for payment by Dr. Muller and Dr. Muller again advised Mr. Letton that he had not received said draft, Mr. Letton then requested Dr. Muller to prepare and furnish to defendant an itemized statement for services up to and including the then current date, January 19, 1956, which statement, Dr. Muller submitted under date of January 19, 1956, a copy of which statement is hereto attached, marked Exhibit ‘B.’
“6. That at the time of the service of demand of plaintiff dated February 6, 1956, as alleged in paragraph 4 of plaintiff’s petition, defendant and Allied Mutual Casualty Company, its insurance carrier, had assumed and agreed to pay all sums due to said Dr. Muller for medical services rendered plaintiff up to January 19, 1956.
“7. On March 8, 1956, defendant’s said insurance carrier issued its draft in the amount of $396.00 which was transmitted to Dr. Samuel B. Muller by letter of Mr. Letton dated March 16, 1956, which was the amount due Dr. Muller to October 24, 1955, as shown by the Workmen’s Compensation Commissioner’s award of December 30, 1955, and subsequently on March 27, 1956, said in.surance carrier issued an additional draft in the amount of $280.00 which was likewise delivered to Dr. Samuel B. Muller by letter of Mr. Letton dated April 13, 1956, which paid Dr. Muller’s bill from October 24, 1955 to March 13, 1956. Both drafts have been received by Dr. Muller but said drafts have not ■been cashed.
“8. That the sum awarded Dr. Muller by the award of the Workmen’s Compensation Commissioner on December 30, 1955, was not fully paid by defendant or its said Workmen’s Compensation insurance carrier'within fourteen days after the date of plaintiff’s demand of February 6, 1956.
“9. That said insurance carrier continuously after the date of accident furnished to plaintiff and plaintiff accepted the services of Dr. Samuel B. Muller for the treatment of his injuries and at the time of plaintiff’s demand on February 6, 1956, and on the date of the filing of this action, plaintiff was receiving medical treatment from said Dr. Muller, for which medical services said insurance carrier issued its drafts in payment in the amounts and on the dates as set out in paragraph 7 above.”
Following action as above indicated the court heard arguments on the pleadings and stipulation and found as a matter of law the defendant’s failure to make payment of $396 to Dr. Muller as ordered by the compensation commissioner in the award, within two weeks after plaintiff made written demand by registered mail on defendant on February 6,1956, for payment of all unpaid compensation awarded apd due including medical compensation awarded and due, caused the entire unpaid balance of the entire workmen’s compensation award in favor of plaintiff and against the defendant to become immediately due in a lump sum upon expiration of the two week period following February 6, 1956. Thereupon it rendered judgment in accord with such finding. This appeal followed and is now here under a specification of error charging that “the district court erred in finding and entering judgment in favor of appellee after trial on the stipulated agreed facts for the reason that said stipulated facts were not sufficient to constitute a cause of action in favor of appellee under Section 44-512 (a), G. S. 1949.”
In view of what this court stated was the issue involved on appellate review in 180 Kan. 286 we have no difficulty in concluding the instant appeal falls squarely within the rule announced in Waddell v. Woods, 160 Kan. 481, 163 P. 2d 348, and the decisions cited at page 488 of its opinion, where it is held:
“Whep a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions.” (Syl. jf 3.)
Adherence to the foregoing rule means, of course, that the questions determined in paragraphs 1 to 5 inclusive, of the syllabus in 180 Kan. 286, as heretofore quoted, are now the law of this case and need not be re-examined.
Having reviewed the record in the case now under consideration, as well as the record presented when the cause was here before, we have concluded that the paramount question involved on this appeal is whether the facts set forth in the heretofore quoted stipulation, respecting the failure of appellant to pay medical expenses due and payable under the compensation award after demand within the time prescribed by its terms, are sufficient to avoid the force and effect of the statute (G. S. 1949, 44-512a) as construed in our previous decision.
At the outset it may be stated that having agreed, in both paragraphs 4 and 8 of the stipulation, that the sum awarded Dr. Muller by the award of the compensation commissioner on December 30, 1955, was not fully paid by it or its insurance carrier within fourteen days after the date of appellee’s demand of February 6, 1956, appellant cannot be heard to say that what is held in syllabus 3 and corresponding portions of the opinion in 180 Kan. 286 does not require that the judgment now under consideration be upheld. It follows such judgment must be affirmed unless other terms of the stipulation suffice to excuse the nonpayment of that sum within the period of time just mentioned. Appellant vigorously contends a legal excuse for failure to make such payment appears from the fact that elsewhere in the stipulation it is agreed that prior to the date of the award, which included $396 for medical services, it had mailed a draft for a portion of that amount, i. e. $86, to Dr. Muller, which has never been presented for payment, and that theretofore payment of the total award was not refused but delayed due to confusion of credits and balance due. There might be some merit to this contention if, after receiving the demand for payment, appellant had paid the doctor the difference between $86 and the $396 awarded. The trouble from its standpoint is that the stipulation discloses, that instead of doing that it elected to disregard entirely the demand for payment of the unpaid compensation, amounting to $310, and made no attempt whatsoever to pay it until sometime after expiration of the two week period prescribed by statute (44-512a). Under such circumstances we believe that failure to pay the unpaid balance of $310 within the period of two weeks from the date of the demand must be regarded as constituting a refusal to pay such amount within that period of time. In this connection it is interesting to note that at page 720 of the opinion in Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373, in rejecting a contention somewhat similar to the one here advanced by appellant, we said that the employer, not the employee, has the burden of avoiding effects following a demand made in accord with the terms of such statute.
Another ground relied on as affording legal excuse for failure to make payment of the involved unpaid compensation within the time required by the statute is that the stipulation shows that at the time of the hearing before the compensation commissioner appellant agreed to assume all medical bills. We find nothing in the statute which is subject to a construction that such an assumption avoids the consequences flowing from a failure to pay unpaid compensation within the time required by its terms.
Two other contentions dealing with the construction to be given the statute (44-512a) are advanced by appellant and should be noted.
First it is urged that the statute is penal in nature hence its terms should be strictly construed. The difficulty with this argument from appellant’s standpoint is that in decisions (See Ellis v. Kroger Grocery Co., 159 Kan. 213, 220, 152 P. 2d 860; Babcock v. Dose, 179 Kan. 298, 300, 293 P. 2d 1007), to which we adhere, this court has held that it is remedial in character and intended to supplement existing remedies as indicated therein. See, also, page 289 of the opinion in 180 Kan. 286 wherein it is said the provisions of the compensation act must be liberally construed in favor of the workman with a view of effecting their purpose.
Next it is argued that the statute should be construed as contemplating the phrase “payment of said demand is either refused or not made” as meaning “payment of said demand is refused or without cause is not made.” We think such a construction would read into the statute something that is not there. Even so there is no necessity for laboring the point. The answer to this contention appears in syllabus 3 and corresponding portions of the opinion (p. 289) where it is held and said that a failure to pay any part of the compensation awarded when due, including medical expenses, within two weeks from the date of service of the written demand, makes the entire amount of compensation awarded immediately due and payable.
We find nothing in appellant’s contentions or in arguments advanced with respect thereto which either permits or requires a reversal of the judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
These appeals, which were previously consolidated by this court for presentation here, were from the judgments and orders of the court below and from the orders overruling the respective motions for new trial in the three actions. The parties stipulated at the outset that determination in case No. 40,569, Bennett v. Con rady, would be controlling in the other two appeals, and we shall limit our discussion thereto.
This is the second appearance of these cases in this court (Bennett v. Conrady, 180 Kan. 485, 305 P. 2d 823) but the opinion in the former appeals has no relation to the questions now presented.
We shall refer to Hazel Bennett as appellee, to Paul P. Conrady, as principal defendant, and to Mary Anne Conrady, garnishee defendant but appellant here, as garnishee.
Appellee commenced a garnishment proceeding, after judgment, by filing a garnishment affidavit upon which garnishment summons was issued to and served on Rose Conrady, the appellant-garnishee, and Lawrence Bennett, respectively. The judgment in case No. 40,569 was for the sum of $6,953.24. While execution on this judgment was outstanding, the garnishment proceeding was commenced. (G. S. 1949, 60-3491.) Garnishee filed her answering affidavit wherein she substantially stated that she was not indebted to the principal defendant and that she had no real or personal property, except such as was exempt, belonging to such defendant or in which he had any interest so that she was in no manner liable as garnishee. The appellee filed her notice of election to take issue on the garnishee’s answer.
A hearing was had (G. S. 1949, 60-3493) wherein evidence was introduced by appellee and at the close of which both parties rested. The trial court entered judgment in favor of appellee against the garnishee for the sum of $1,439.93. This, amount was shown to be in the garnishee’s possession in the form of three checks. The trial court determined the checks were actually the property of the principal defendant who had testified during the hearing regarding transactions which resulted in the checks being delivered to garnishee. A motion for new trial filed by garnishee was overruled by the trial court and the garnishee filed a notice of appeal to this court directed only to appellee and her attorney of record. Service of this notice of appeal was acepted and proof of service was waived by the attorney for himself and his client, appellee.
For the reason that the notice of appeal was not served on Paul P. Conrady, the principal defendant in the case, appellee has filed a motion to dismiss the appeal, and we must dispose of this motion before considering the questions raised on appeal by the garnishee.
Our statute (G. S. 1949, 60-3306) governing notice of appeal sets out the following requirement:
. . A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record. . . .”
The principal defendant’s rights are sought to be affected by this appeal because notwithstanding the fact that he and garnishee are husband and wife, the trial court determined that the checks totaling $1,439.93 were his property and he, therefore, was an adverse party to garnishee. He had the right to have that amount credited on the judgments against him. He was entitled to claim any exemptions he had and if any balance remained to him, he was also entitled thereto. If the trial court were to be reversed by this court on appeal, all of the principal defendant’s rights in and to the checks would be abrogated because the checks would then belong to and be the property of garnishee free and clear of any claim thereto by such defendant.
The principal defendant also appeared at the trial and testified as a witness. Fie was called by the appellee and testified, along with other witnesses, as to the transactions leading up to issuance of the checks and the trial court determined that the proceeds from the checks were the property of and belonged to this defendant. Thus he is interested in having the trial court’s opinion upheld and his interests are opposite to the relief sought by garnishee in this appeal.
In Protzman v. Palmer, 155 Kan. 240, 243, 124 P. 2d 455, we find a case almost identical with ours. The only difference is an administrator with will annexed of a deceased person’s estáte was plaintiff, the defendant was a woman, and a corporation was garnishee. There, as here, the garnishee-appellant failed to serve notice on the principal defendant. There, as here, the rights of the principal defendant could not be affected or determined by this court without the necessary notice of appeal and service on that defendant, as required by statute.
In view of the failure to file the proper notice of appeal and to serve the same on the principal defendant, this court does not have jurisdiction to consider the appeal. For more recent discussions on the subject, see In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004; In re Estate of Johnson, 177 Kan. 368, 279 P. 2d 271.
The appeal must be dismissed. It is so ordered.
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The opinion of the court was delivered by
Schroeder, J.:
This is an equitable action brought by The Coleman Company, Inc., to set aside an arbitration award made in favor of The International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), and others, hereafter collectively referred to as the Union.
On the 9th day of May, 1955, Coleman and the Union entered into a collective bargaining agreement, hereafter referred to as the Agreement, which provided among other things that a grievance not satisfactorily settled under any one of the four preliminary steps outlined, could be appealed by the Union to arbitration. It provided that the decision of the majority of the Board, consisting of three members selected in accordance with the terms of the Agreement, shall be final and binding on both parties to the Agreement.
The Agreement specifies the limitation of the Arbitration Board’s powers as follows:
“The function of the Arbitration Board shall be to interpret the provisions of this Agreement and to resolve by decision or to make recommendations concerning any appeals arising thereunder. This Board shall have no power to add or subtract from, or to modify, extend or delete any of the terms of this Agreement, or any agreement made supplementary hereto except by mutual consent of the Company and the Union.” (Article V, Section 8.) (Emphasis added.)
A dispute arose between Coleman and the Union as to the interpretation of Article XV, Section 8(b), of the Agreement. It provides:
“Whenever a temporary breakdown or trouble occurs with equipment, machines, jigs, fixtures or material, or when any other circumstance beyond the operator’s control causes unusual delay to a bonus operation which has not been compensated for in the standard and the employee thinks that a special allowance should be made for such delay, he shall promptly notify his supervisor at the time such trouble occurs. The supervisor shall, with the cooperation of the Methods and Standards Department (if desired), estimate the amount of time being lost and shall make a special allowance at the base rate of the job to the employee for the time lost.” (Emphasis added.)
After extended preliminary procedures the parties were unable to settle their dispute and the matter was referred to a Board of Arbitration. Coleman objected to arbitration on the ground that a Board of Arbitration had no jurisdiction to determine the issue. The disputed Section 8(b) of the Agreement was, however, without litigation submitted to a Board of Arbitration. The sole issue submitted for determination was stipulated by the parties and reads as follows:
“Does Article XV, Section 8(b) permit the company to make special allowances to employees assigned to bonus operations at the base rate of the job for time lost whenever a temporary breakdown or trouble occurs with equipment, machines, jigs, fixtures or material, or when any other circumstance beyond the operator’s control, such as scheduling of jobs, delay in receiving the next job, improper distribution of towmotor service, obtaining blueprints and obtaining instruction cards, causes unusual delay to a bonus operator which has not been compensated for in the standard.” (Emphasis added.)
The Board of Arbitration after hearing considerable testimony in November, 1955, took its decision under advisement upon the transcript of the record and briefs which it requested the parties to submit. The Award dated the 22nd day of January, 1956, in answer to the question submitted by the parties reads as follows:
“Upon the basis of all of the evidence submitted, the Arbitration Board finds and therefore rules that the position and contention of the Union must be sustained and that of the Company denied; that the language of Article XV, Section 8b, clearly permits and requires the Company to make special allowances as the term is understood by the Union and discussed in its brief; that if a matter of computation alone were involved, then the language used would seem to be ambiguous, if not meaningless. The Arbitration Board finds and rules that the intent of the parties is clearly expressed in the Union brief and its position as evidenced in the record. The Arbitration Board, therefore, has no alternative other than to sustain the Union contention and to deny the Company position. Ordered accordingly.”
Coleman brought an equitable action in the district court to set the arbitration award aside. After full hearing the lower court ruled that the award made by the Board of Arbitration was invalid and could not be enforced. The court therefore entered judgment for Coleman, the effect of which was to set the award aside and declare it void. The reasons set forth in the court’s opinion are paraphrased as follows:
(1) That Article XV, Section 8(b), of the contract does not need, require or lend itself to interpretation because it is so simple and clear that no extended examination or interpretation is required to determine its meaning.
(2) That the Award modifies and changes the Agreement in that Section 8(b), which states that “. . . the supervisor . . . shall make a special allowance at the base rate of the job to the employee for the time lost,” is changed to read “The supervisor shall make a special allowance at the average bonus earnings of the employee for the time lost,” and that had the signers of this Agreement intended to use the term “average bonus earnings,” as used in other places throughout the Agreement, in Section 8(b) in lieu of the term “base rate” they would have done so.
(3) That the Board of Arbitration exceeded the authority granted to it in the Agreement, since its duty was to decide with definiteness and certainty the proposition submitted to it rather than to rewrite, change and add to the Agreement.
(4) That the Board of Arbitration did not state in its Award what average bonus earnings are or how they are to be computed and by reason thereof the Award is lacking for want of certainty.
Appeal was properly perfected by the Union to this court through procedures unnecessary to relate in detail, specifying as error questions suggested by the foregoing reasons assigned in the trial court’s opinion.
Does a state court have jurisdiction of an action which challenges an arbitration award? The appellants have suggested by a question in their brief that the federal courts have exclusive jurisdiction of suits such as the one at bar. This point has not been specified as error but is raised in appellants’ brief. Chronologically, the question of jurisdiction is one to be advanced and disposed of before proceeding to other points.
Appellants rely upon 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; and Guss v. Utah Labor Board, 353 U. S. 1, 77 S. Ct. 598, 1 L. Ed. 2d 601, cases involving alleged unfair labor practices over which the National Labor Relations Board possessed exclusive jurisdiction. It is apparent on the surface that these cases have no application where the controversy involves an arbitration agreement with respect to which the National Labor Relations Board has no jurisdiction whatever. This is admitted by the appellants’ statement of the question. The United States Supreme Court in Textile Union v. Lincoln Mills, 353 U. S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972, considered the legislative history of the Labor Management Relations Act, 1947, to support its holding that violations of arbitration clauses in collective bargaining contracts do not constitute “unfair labor practices” over which the National Labor Relations Board possesses jurisdiction, and that problems pertaining to the enforcement of arbitration agreements are for the courts, not the Board.
The cases of Textile Union v. Lincoln Mills, supra; General Electric Co. v. Local 205, 353 U. S. 547, 77 S. Ct. 921, 1 L. Ed. 2d 1028; and Goodall-Sanford v. Textile Workers, 353 U. S. 550, 77 S. Ct. 920, 1 L. Ed. 2d 1031, are all cases relating to controversies which involve arbitration agreements and relate solely to federal jurisdiction. In each of these cases a union filed suit in a federal district court seeking specific performance of an arbitration clause in a collective bargaining agreement, because of an employer’s refusal to arbitrate. Each case held that under Section 301 of the Labor Management Relations Act, 1947 (29 U. S. C. A. §185; 61 Stat. 156), a federal district court has jurisdiction to entertain such an action, and that the federal courts are not bound by state laws but may devise their own rules for enforcement of such agreements. However, none of these three decisions involves any question regarding whether state courts could or could not still exercise their traditional jurisdiction of enforcing “or refusing to enforce” volun tary agreements, and none of the three opinions holds or contains even a suggestion that state courts are deprived of concurrent jurisdiction in this field. In view of Section 301(a) of the Labor Management Relations Act, 1947, which provides that suits of this nature “. . . may be brought in any district court of the United States . . .” (Emphasis added), the foregoing decisions impliedly recognize the concurrent jurisdiction of state courts. This interpretation is fortified by a subsidiary point considered in Textile Union v. Lincoln Mills, supra, as to whether the federal courts should supply federal law to resolve these controversies or must turn to state law for answers to the questions, and is further fortified by remarks in the dissenting opinion.
Thé parties concede that Colemans business affects interstate commerce. Thus, we are forced to a construction of the Federal Act in an effort to determine whether Congress has pre-empted this field. The only applicable section of the Labor Management Relations Act, 1947, is 301(a) and it uses the term “may” and not the term “shall” or “must” in authorization of suits in the district court of the United States.
In 14 Am. Jur., Courts, § 247, p. 441, a statement, amply supported by authorities, is made as follows:
“. . . In regard to state courts the law is also said to be settled that courts of general jurisdiction therein have power to decide cases involving the rights of litigants under the Constitution or statutes of the United States unless deprived of the right so to do by the terms of the Federal Constitution or acts of Congress. '. .
State courts have consistently exercised concurrent jurisdiction with the federal courts in matters involving enforcement of collective bargaining agreements. (General Electric Co. v. Union, 93 Ohio App. 139, 108 N. E. 2d 211 [appeal dismissed 158 O. S. 555, 110 N. E. 2d 424]; Application of Pocketbook Workers Union, 149 N. Y. S. 2d 56; Phila. Mar. Assn. v. Longshoremen's Assn., 382 Pa. 326, 115 A. 2d 733 [certiorari denied 350 U. S. 843, 76 S. Ct. 84, 100 L. Ed. 751]; and Gen. Bldg. Contrs’ Assn. v. Local No. 542, 370 Pa. 73, 87 A. 2d 250.)
The Unions position is untenable for a further reason. The present action is not one for violation of a contract within the meaning of Section 301(a) of the Labor Management Relations Act, 1947, but one which attacks the jurisdiction of the Arbitration Roard to resolve the controversy. This is not treated at all in the Labor Management Relations Act, 1947. Under such circumstances the federal district court’s dismissal of a company’s complaint was upheld by the Sixth Circuit Court of Appeals in Mengel Co. v. Nashville Paper Prod. & Spec. Wkrs. Union, 221 F. 2d 644, on the ground that the federal court had no jurisdiction. Furthermore, the Union filed a cross-petition in the lower court in the instant case seeking to recover judgment against Coleman for accrued wages allegedly due the employees under the Award made by the Arbitration Board. Such action is beyond the jurisdiction of the federal district courts. (Employees v. Westinghouse Corp., 348 U. S. 437, 75 S. Ct. 489, 99 L. Ed. 510.)
We, therefore, hold that state courts have jurisdiction to entertain an action which seeks to challenge the validity of an arbitration award, even though the business affects interstate commerce.
The various questions raised by the parties necessitate a general approach to the law of arbitration. This will give perspective to a discussion of the factual situation in this case as the various contentions of the parties are treated.
Arbitration awards, which courts regard as valid and suitable for judicial enforcement, are neither contract nor judgment but partake of the nature of both. The award partakes of the nature of a contract because it is the result of a contract, the submission agreement, whereby the parties agree to comply with the award. It differs from a contract in that it is the act of the arbitrators, not of the parties themselves. It partakes of the nature of a judgment in that, if it is valid, it is binding upon them though imposed by an outside source.
The dual nature of the award serves to explain the limited grounds on which it may be successfully impeached. In general it may be said that the ground urged must be good, both for attack upon a judgment and for relief against the terms of a contract. But, certain grounds that would be sufficient in an appeal from a judgment would not be grounds for impeaching an award, for the reason that the contractual element is present in the award. Thus, the fact that the arbitrator made erroneous rulings during the hearing, or reached erroneous findings of fact from the evidence, is no ground for setting aside the award, because the parties have agreed that he should be the judge of the facts. Even his erroneous view of the law would be binding, for the parties have agreed to accept his view of the law. Were it otherwise in either of these cases, arbitration would fail of its chief purpose; instead of being a substitute for litigation, it would merely be the beginning of litigation. Error of law renders the award void only when it would require the parties to commit a crime or otherwise to violate a positive mandate of the law. (Arbitration of Labor Disputes, Updegraff & McCoy, 1946.)
Judicial intervention is ill-suited to the special characteristics of the arbitration process in labor disputes. Dean Harry Shulman summarized his vast and extraordinarily successful experience. as labor arbitrator as follows:
“. . . The arbitration is an integral part of the system of self-government. And the system is designed to aid management in its quest for efficiency, to assist union leadership in its participation in the enterprise, and to secure justice for tire employees. It is a means of making collective bargaining work and thus preserving private enterprise in a free government. When it works fairly well, it does not need the sanction of the law of contracts or tire law of arbitration. It is only when the system breaks down completely that the courts’ aid in these respects is invoked. But tire courts cannot, by occasional sporadic decision, restore the parties’ continuing relationship; and their intervention in such cases may seriously affect the going systems of self-government. When their autonomous system breaks down, might not the parties better be left to the usual methods for adjustment of labor disputes rather than to court actions on the contract or on the arbitration award? . . .” (Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv. L. Rev. 999, 1024.)
Labor relations contracts providing for arbitration are for specific terms, generally much shorter than the time required for adjudication of a contested lawsuit through the available stages of trial and appeal. Re-negotiation of agreements cannot await the outcome of such litigation; nor can the parties’ continuing relation await it. (See dissenting opinion of Justice Frankfurter in Textile Union v. Lincoln Mills, supra.)
It is stated in 3 Am. Jur., Arbitration and Award, § 130, p. 951:
“The award of arbitrators acting within the scope of their authority determines the rights of the parties as effectually as a judgment secured by regular legal procedure, and is as binding as a judgment until it is regularly set aside or its validity questioned in a proper manner. . . .” (Emphasis added.)
Relief will be granted against an award which the arbitrators had no jurisdiction to make. Thus, in the instant case we must inquire whether the Eoard of Arbitration has exceeded the limitation placed upon its contractually invested authority by the Agreement, since the parties to such an Agreement are bound by the arbitrators’ award only to the extent and in the manner prescribed by the contract and only if the award is rendered in conformity thereto. (Flack-Beane Lumber Co. v. Bass, 258 Ala. 225, 62 So. 2d 235; Pub. Util. Constr. Workers, & v. Pub. Serv., & Co., 44 N. J. Super. 316, 130 A. 2d 421; Drake v. Stein, 116 C. A. 2d 779, 254 P. 2d 613; and Couey v. Arrow Coach Lines, 288 S. W. 2d 192 [Tex. Civ. App.].) This principle is expressly adopted by Section 10(d) of the United States Arbitration Act (9 U. S. C. A. § 10[d] and is supported in 6 C. J. S., Arbitration and Award, § 80, p. 219. (3 Am. Jur., Arbitration and Award, § 122, p. 944, § 123, p. 945, § 132, p. 955 and § 137, p. 961.)
The foregoing statement is consistent with Kansas law. In Graff v. Insurance Co., 107 Kan. 648, 193 Pac. 356, this court said;
“ ‘A party may, even at common law, set up, in defense to an action on an award, any matter which shows that the arbitrator has not pursued his authority, either in not determining some matter brought before him which he ought to determine, or in determining some matter which he had no authority to determine. . . .’
“This rule was followed in Clark v. Goit, 1 Kan. App. 345, 41 Pac. 214, where this language was used:
“ ‘In defense of an action on an award, or for not performing an award, the defendant may avail himself of any material error or defect apparent upon the face of the award, such as excess of power by the arbitrators, . . (p. 652.) (Emphasis added.)
We are primarily confronted in this case with the question whether an Agreement to arbitrate exists at all upon the grievance presented by the record. The appellee contends that the Award exceeded the arbitrators’ jurisdiction since it attempted, under the guise of interpretation, to change and add to the unambiguous provisions of Article XV, Section 8 (b). Stated in other words, the appellee’s position is that although the contract specified that the arbitrators had “no power to add or subtract from, or to modify, extend or delete any of the terms of this Agreement,” the Board of Arbitration exceeded its jurisdiction when, under the guise of “interpretation,” it amended the unambiguous “base rate” contractual provision to read “average bonus earnings.” The question resolves into whether the Agreement on its face is clear and unambiguous, particularly as applied to Article XV, Section 8(b).
Primarily, the construction of a contract is a question of law for the courts. (Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132; Bailey v. Talbert, 179 Kan. 169, 294 P. 2d 220; Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395; and Morgan v. Wheeler, 150 Kan. 667, 95 P. 2d 320.)
In 3 Am. Jur., Arbitration and Award, § 132, p. 955, it is stated:
“. . . Although', generally speaking, the award is conclusive on all matters of law and fact consonant with the submission, this is true only in so far as such matters are decided according to the legal construction of the contract from which the arbitrators derive their authority, and not merely according to such construction as they may choose to give to it, unless they are authorized by the submission to construe such language. Even then, the extent of such authority under the contract is for the court, not the arbitrators, to determine.” (Emphasis added.)
The construction of a collective bargaining agreement to determine what questions the parties have agreed to submit to arbitration is a function of the court and not the arbitrators, and courts will not infer that it was the intention of the parties to empower the arbitrators to determine the extent of their own jurisdiction. (Phila. Mar. Assn. v. Longshoremen's Assn., supra.)
We must, therefore, turn to the agreement to determine whether it is free from ambiguity as a matter of law. Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Oliver v. Alugen, supra; and Klema v. Soukup, 175 Kan. 775, 267 P. 2d 501.) If application of pertinent rules of construction to the Agreement indicates that it is clear and unambiguous with respect to Article XV, Section 8(b), then the Board of Arbitration went beyond its authority to make an award. If, however, the construction indicates ambiguity, resort must then be made to extrinsic evidence to determine its meaning. In that event, the parties are bound by their agreement to submit the grievance to the Board of Arbitration which is empowered to interpret the Agreement, and they are bound by the award unless other valid objections exist. (Miller v. Brumbaugh, 7 Kan. 343; Groat v. Pracht, 31 Kan. 656, 3 Pac. 274; Insurance Co. v. Payne, 57 Kan. 291, 46 Pac. 315, and Atchison v. Rackliffe, 78 Kan. 320, 96 Pac. 477.)
The appellee’s (Coleman’s) position is simply that the term “base rate” is an unambiguous, clearly defined term, with a meaning entirely different from “bonus earnings” or “straight time hourly earnings.” It argues that the parties were free to contract as they chose. They specifically designated that the special allowance to a bonus worker for “down time” be made “at the base rate of the job” and not at some other rate determined by “bonus earnings” or “straight time hourly earnings.” Appellee’s argument is fortified by refer ence to other provisions in the contract which specifically designate the rate at which an employee is to be compensated. Section 8(a) of Article XV provides a condition under which a bonus employee shall receive “average straight time hourly earnings” (average bonus earnings). Section 8(a) of Article XV reads:
“Under the following condition, a bonus employee will be paid his average straight time hourly earnings, or his day rate whichever is greater, excluding shift premium. Average straight time hourly earnings shall be based on the employee’s last two closed pay periods preceding the pay period in which the work is performed.
“(1) When a regular bonus operator is assigned to work on trial runs. . . .”
This argument so far as it goes has power of persuasion for under Article XV, Section 8, where the parties to the contract intended to provide bonus payments to employees, the contract so specified, and also specified a definite period to be used for the purpose of ascertaining “average earnings,” whereas, when only “base rate” was intended, the contract utilized the words “base rate” and omitted any time basis for computing “average earnings.” Against these provisions of the contract and the argument heretofore presented is the appellants’ position.
It is argued that Article XV, Section 8(b), provides that when trouble occurs beyond the operator’s control which causes unusual delay to a bonus operation, which has not been compensated for in the Standard (immaterial in this action), and the employee thinks that a special allowance should be made for such delay, a procedure is designated for making a special allowance to the employee for the time lost. It is contended that the use of the words “special allowance” for unusual delays to an employee engaged in a bonus operation renders the contract ambiguous because a “special allowance” means something over and above the base rate for a bonus employee. This argument is fortified by Sections 6 and 7 of Article XV. Section 6 provides for bonus earnings as follows:
“All bonus standards will be established so that the average operator working at a normal pace (100%) will earn tire base rate of the job. For each 1% increase in units produced above the standard, the employee will receive 1% increase in base pay with a normal incentive expectancy of 25% over the base rate of the job, however such 25% shall not be construed as a guarantee or a limitation of incentive earnings. Only acceptable pieces shall be counted in determining the number of pieces produced under a standard. Acceptable pieces shall include those substandard pieces which an operator is authorized by his Foreman to produce and which is due to conditions of the machine or material beyond the control of the operator. There shall be no charge against an employee because of any spoiled pieces.”
Section 7 provides a guarantee as follows:
“(a) A bonus employee will be guaranteed the base rate of his classification. Bonus earned on one job will not be used to supplement subsequent earnings on other jobs where the employee, through no fault of his own, fails to make his base rate. In all cases when an employee experiences trouble he will notify supervision at the time the trouble occurs.
“(b) The Company shall not for part of a day remove a bonus operator from his regular type of work for assignment to another type of work or to rework parts which he has not spoiled when he could have otherwise continued at his regular type of work and assign another employee with less seniority in place of the regular bonus operator. If a grievance is filed claiming a violation of this section and it is determined that such transfer was contrary to the provisions of this section, he shall be paid not less than his average straight time hourly earnings for the preceding two pay periods prior to such transfer, while temporarily so assigned by the Company.” (Emphasis added.)
The guarantee in Section 7 gives to the bonus employee the base rate of pay for his job classification. With this guarantee it is argued that Section 8(b) of Article XV is unnecessary and superfluous if it provides only for payment at the base rate for “down time” since he would be paid at the base rate without this provision for “down time.”
It is apparent that this argument is capable of persuasion equally with the argument of appellee. We, therefore, conclude that the contract on its face, construed as a whole, is ambiguous as to the provisions of Article XV, Section 8(b). Reasonable minds could differ as to how this section was intended by the parties to apply. Under these circumstances, the Board of Arbitration had jurisdiction to interpret the provisions of Article XV, Section 8(b) by resort to extrinsic evidence in an effort to determine the controversy.
Other reasons advanced by appellee in explanation of the terms in the controverted section of the contract have been fully considered but are insufficient to remove doubt as to the intended meaning, viewed strictly upon the wording of the contract.
The parties having agreed to be bound by a submission to arbitration under the terms of the Agreement are in no position to complain of the award. The general rule is that errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in the award relative to the merits of the controversy as submitted, even though incorrectly decided, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections. (Insurance Co. v. Payne, supra; Miller v. Brumbaugh, supra; and 3 Am. Jur., Arbitration and Award, § 135, p. 958.)
Other cases in which interpretation of an ambiguous section of a collective bargaining agreement was submitted to arbitration and the award upheld are Westinghouse Air Brake Co. Appeal, 166 Pa. Superior Ct. 91, 70 A. 2d 681; Kingston Coal Co. v. Glen Alden Coal Co., 312 Pa. 546, 168 A. 677; and In re Genuth, 137 N. Y. L. J. 6, 31 Labor Cases 93,201, ¶ 70,459. Cases in which awards have been vitiated on the ground that an arbitrator may not modify or add to the contract are Matter of Western Union Tel. Co. (ACA), 299 N. Y. 177, 86 N. E. 2d 162; Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 96 A. 2d 209; and Stenzor v. Leon, 130 C. A. 2d 729, 279 P. 2d 802.
Are there other valid objections to the award?
Appellee, in an effort to sustain the ruling of the lower court, contends that although the award made by the Board of Arbitration purported to allow “average bonus earnings” in lieu of “base rate” wages as unequivocally specified in the contract, it was indefinite and fatally defective by failing to designate any period of time over which the employees’ “average bonus earnings” should be computed.
It is stated in 3 Am. Jur., Arbitration and Award, § 125, p. 947:
“The certainty of an award is one of its indispensable and essential properties; if deficient in this respect, it cannot be sustained. It must be complete and definite. It must leave open no loophole for future dispute and litigation.”
Numerous cases are cited by appellee in support of the foregoing proposition. (In re E. A. Laboratories, Inc., 50 N. Y. S. 2d 222; LeBlanc v. Beard Paper Co., 320 Mich. 632, 32 N. W. 2d 73, 78; Baldwin v. Moses, 319 Mass. 401, 66 N. E. 2d 24; Leo Benjamin, Inc., v. McPhail Candy Corporation, 81 N. Y. S. 2d 547; and Velveray Corp. v. Simon, 130 N. Y. S. 2d 839.) But án award governing future conduct of parties to an arbitration cannot be set forth as specifically as an award for money due on an open account. If an award is so written that by giving the words used their ordinary meaning, including that which may be fairly inferred from language used, there is a reasonable certainty of a common intent. Awards are not required to be written with such critical nicety that a forced construction cannot discover a doubt. Every presumption is in favor of the validity of an award, and it will be construed so as to put one consistent sense on all its terms. (Millinery Co. v. Insurance Co., 160 N. C. 130, 75 S. E. 944; and 3 Am. Jur., Arbitration and Award, § 129, p. 950.)
The Unions brief is made a part of the award by reference. Furthermore, the document entitled “Award of Arbitration Board” sets forth the Union’s brief in full. The last paragraph of the Arbitration Board’s decision, immediately preceding its formal award, states that:
“We cannot arrive at any conclusion after carefully reviewing all of the evidence other than the following: That the evident intent of the parties and the language of the contract is to the effect that tire supervisor shall make an allowance of time in addition to the actual delayed time, which shall be sufficient to allow the operator to maintain his bonus earnings.”
Our inquiry is directed to what the award determined and whether the determination fully and conclusively answered the issue submitted. (6 C. J. S., Arbitration and Award, § 84, p. 231, and cases therein cited.)
Attention is directed to Article XV, Section 8(b), to determine, if possible, whether any award could be made more specific and definite than the provisions of this section of the contract permit. It provides that if the employee thinks a special allowance should be made he shall promptly notify his supervisor and the supervisor shall, with the co-operation of the Methods and Standards Department (if desired), estimate the amount of time being lost and shall make a special allowance at the base rate of the job to the employee for the time lost. One might ask how definite can an award be which is based upon the construction of a provision in the contract which calls for an estimate of time lost when an employee thinks it should be made.
Another objection to the award stated by the appellee is that although the issue submitted to the Arbitration Board asked only whether the company was, under the contract, permitted to pay employees for lost time “at the base rate of the job,” the Board departed from this clear issue, and officiously rendered an award purporting to require compensation for lost time to be made upon the basis of the employees’ “average bonus earnings.”
It is clear that where the parties have stipulated that a specific issue be presented to a Board of Arbitration, the authority of the Board does not go beyond tire issue submitted for arbitration. (Swisher v. Dunn, 89 Kan. 412, 131 Pac. 571; Metal Products Work ers Union v. Torrington Co., 116 A. 2d 449; and Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 109 A. 2d 240.) The issue submitted merely paraphrases the provision of the Agreement which the Board is authorized to interpret. Appellee’s objections will be answered together.
The proceedings before the Arbitration Board were informally conducted, no reporter was present to record the testimony, and affidavits were used. The Agreement for submission to arbitration not having provided otherwise, the manner in which the hearing was conducted was within the province of the Board. From statements in the document entitled “Award of Arbitration Board” it is found that evidence presented at the arbitration hearing disclosed Coleman under normal operations computed the payroll by leaving the hourly rate fixed (base rate) and computed bonus operations in terms of hours (time) rather than in terms of dollars. Witnesses testified that when payments in excess of actual “down time” were made, they were made in the form of extra hours, not in the form of an increase in base pay.
Resort to extrinsic evidence, which the Board had the power to do, thereby supplied a fact which the Board found was the determining factor. The important issue confronting the Board was the method by which time lost should be estimated. The only conclusion stated by the Board reads:
“Conclusion — The only reasonable interpretation of the intent of the contracting parties and the meaning of Section 8b is that the supervisor shall make an allowance of time in addition to the actual delay time sufficient to allow the operator to maintain his bonus earnings.”
The appellee’s contention, that the award is indefinite because it failed to designate any period of time over which the employees’ “average bonus ernings” should be computed, lacks merit since this issue was not embraced in the stipulated issue submitted to the Arbitration Board by the parties.
By the Agreement the Union is bound to leave the estimate of time lost to the supervisor, with the co-operation of the Methods and Standards Department (if desired), all of which is at Coleman’s direction. The award designates the method which shall be used in estimating time lost, and thereby permits the company to make a special allowance to employees assigned to bonus operations at the base rate of the job for the estimated time lost. The award is consistent with the issue submitted and under all the facts and circumstances presented in this case it is definite and certain.
The judgment of the lower court is reversed and the case is remanded for further proceedings consistent herewith.
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from an order overruling a demurrer to the petition in a suit by the plaintiff to recover damages from the defendant for fraud and trespass.
In her first amended petition the plaintiff alleges that she is the owner of certain real property; that the defendant, J. E. Tobin, is an individual who has for the past seven (7) years supervised and directed the quarrying operations of the defendant American Rock Crusher Company in close proximity to the plaintiff’s land; that said company is a corporation.
The plaintiff further alleges that the defendant owns and operates a quarry and that in the operation of the quarry the defendant, its agents, servants and employees, extended its quarrying and mining operations into, upon and underneath the property of plaintiff without authorization or right of any kind and that by this trespass has taken approximately 8,000 tons of rock for the past seven (7) years; that said trespass was done willfully, wantonly and with the intent to cheat and defraud the plaintiff of $20,000.
The petition also contains additional counts for damages for the use of a roadway and for damages to plaintiff’s house by the frequent blasts and explosions in the quarry.
After preliminary motions were ruled on a second amended petition was filed. The following paragraph was added to the petition:
“Plaintiff further states that she did not discover the willful, wrongful and malicious acts described in the first two of the three preceding paragraphs, until shortly before the filing of this petition, since all of the defendants’ acts were being carried out underground, and that she did not discover that the defendants were causing the explosions and blasts as described in the last of the three foregoing paragraphs, until shortly before the filing of this petition.”
The defendant, the American Rock Crusher Company, filed its answer. Upon motion of the plaintiff the answer was made more definite and certain by the attachment of certain leases, agreements, and easements.
Thereafter the plaintiff moved the court for permission to amend her second petition by changing the name of the defendant J. A. Tobin to J. E. Tobin for the reason, plaintiff alleged, that a mistake was made in his middle initial.
The court allowed the amendment.
Thereafter the defendant J. E. Tobin filed a motion to make the second amended petition more definite and certain by requiring the plaintiff to state in which capacity or by what authority J. E. Tobin allegedly supervised and directed the quarrying operations of the American Rock Crusher Company; that is, as officer or employee or owner.
The court allowed the motion and the plaintiff amended the second petition by interlining the words “as owner and manager.”
The defendant J. E. Tobin then demurred to the second amended petition for the reason that the petition fails to state or allege facts sufficient to state a cause of action against defendant J. E. Tobin, and that the petition shows on its face it is barred by the statute of limitations. The court overruled the demurrer. Hence this appeal.
The defendant contends that the petition does not state a cause of action for the reason that the defendant J. E. Tobin is not liable for any trespass committed by the corporation. He contends that while a corporation can be held liable for tresspass by agents, servants and employees acting within the scope of their authority or in the course of their employment that the defendant Tobin would only be liable for a trespass done outside the scope of his employment or authority. In support of his position defendant cites Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P. 2d 914.
This case does not support the defendant’s position. There the matter before the court was an action for the specific performance of an oral contract. A contract of employment had been made by the president of a corporation who also was in the apparent capacity as general business manager. The court held:
“The record in this case discloses not only that Mayor was president of the defendant corporation but that he was in fact and in reality its active business manager. In the absence of any showing of lack of authority it cannot be said that Mayor was not acting within the apparent scope of his authority. (Petroleum. Co. v. Gas & Fuel Co., 112 Kan. 73, 76, 209 Pac. 826.) The payment to plaintiff of the commissions for a period of years by the corporation constituted ratification of the contract. Furthermore, having accepted the benefits of plaintiffs performance of the contract the defendant cannot repudiate its obligations thereunder. (El Dorado Nat’l Bank v. Coca-Cola Bottling Co., 129 Kan. 272, 282 Pac. 579.)” (p. 174.)
In the consideration of a demurrer to this petition we are not concerned with either ratification or the acceptance of benefits.
The basic question on this point of the demurrer is: May the defendant J. E. Tobin be held for a trespass against a third person whether or not he was acting within the scope of his authority or employment as an agent of the corporation?
The law is well settled that a corporation is not only liable for its own torts but for the torts of its agents committed within the scope of the- agents’ authority and course of employment, even though it did not authorize or ratify the act, or forbade it. 19 C. J. S. Corporations § 1260; 13 Am. Jur., Corporations, § 1118. For Kansas cases see West’s Kansas Digest, Vol. 3A, Corporations, § 423, p. 393 and Hatcher’s Kansas Digest [Rev. Ed.], Vol. 2, Corporations, §§ 34, 35, pp. 67 and 68.
More particularly, a corporation may be held liable for trespass committed by its officers or agents, in the course of their employment, upon the lands, personal property or person of another. (19 C. J. S. Corporations § 1285; 13 Am. Jur., Corporations, § 1122; and W. U. Telegraph Co. v. Rich, 19 Kan. 517.)
Likewise, the general rule is that such officers and agents who violate a duty owed to third persons are liable to such persons for their torts.
“The officer or agent committing the assault or trespass is of course himself personally hable, as well as the corporation, and according to the prevailing view the corporation and the officer or agent may be sued jointly for the trespass.” (13 Am. Jur., Corporations, § 1122 at page 1049.)
“. . . If, however, a director or officer commits or participates in the commission of a tort, whether or not it is also by or for the corporation, he is liable to third persons injured thereby, and it does not matter what liability attaches to the corporation for the tort. . . .” (13 Am. Jur., Corporations, § 1086 at page 1018.)
For Kansas and other authorities on the liability of agents to third persons see Barnhart v. Ford, 37 Kan. 520, 15 Pac. 542; Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136, affirmed on appeal, 229 U. S. 102, 33 S. Ct. 684, 57 L. Ed. 1090; Wells v. Hansen, 97 Kan. 305, 308, 154 Pac. 1033, L. R. A. 1916F 566, Ann. Cas. 1918D 230; Restatement, Agency, 769-779, §§ 350 to 354, inch, 2 C. J. [Agency, § 498 et seq.], p. 824; 3 C. J. S. [Agency, § 220 et seq.], p. 129; 57 C. J. S., Master and Servant, § 576 et seq.; 2 Am. Jur. [Agency, § 324 et seq.], p. 254; Annotation, 20 A. L. R. 97-139; Kitzel v. Atkeson, 173 Kan. 198, 245 P. 2d 170; 99 A. L. R. 405; Larson v. Domestic & Foreign Corp., 337 U. S. 682, 93 L. Ed. 1628, 69 S. Ct. 1457; and Mechem on Agency [Second Edition], Chapter III, § 1451 et seq., p. 1074.
A leading Kansas case is Duensing v. Leaman, 152 Kan. 42, 102 P. 2d 992, where the court said:
“. . . Whatever the allegations concerning the creamery company, it is clear there were allegations of negligence against Leaman individually and not as agent. It may be observed that a like result would be reached even though he had been charged only as an agent. The general rule is that an agent who violates a duty which he owes to third persons is answerable to such third person for the consequences. There are exceptions to the rule where the act is one of nonfeasance, but that exception, even if recognized in Kansas, would not avail here, for the act complained of is one of misfeasance. . . .” (p. 44.)
An agent cannot escape liability to third persons by pleading he acted at the command or on account of the principal. This is for the reason that the tort liability of the agent is not based on the contractual relationship between the principal and agent, but on the common law obligation that every person must so act or use that which he controls as not to injure another. (2 Am. Jur., Agency, § 326; Restatement of the Law, Agency, § 343, p. 753.)
The contention that the defendant would be liable only if acting outside the scope of his employment and authority is not correct. He is hable to third parties in either event. The corporation is liable only if he was acting within the scope of his employment and authority or if there had been some later ratification or acceptance of benefits of his act.
The plaintiff need not allege the acts of defendant were done outside the scope of his authority and employment. The allegations of the second amended petition state a cause of action against the defendant J. E. Tobin.
Since the defendant corporation answered and did not demur, any question as to the sufficiency of the allegations in the second amended petition on “scope of employment and authority” affecting its liability is not before us.
Of course, the corporation and its officer or agent may be joined as defendants (13 Am. Jur., Corporations, § 1122; Dowell v. Railway Co., supra; Wells v. Hansen, 97 Kan. 305, 310-311, 154 Pac. 1033; Duensing v. Leaman, supra; Rush v. Concrete Materials & Construction Co., 172 Kan. 70, 238 P. 2d 704; and Feger v. Concrete Materials & Construction Co., 172 Kan. 75, 238 P. 2d 708).
The defendant J. E. Tobin urges as his second ground of demurrer that the petition shows on its face the plaintiff’s cause of action is barred by the statute of limitations.
The parties agree that G. S. 1949, 60-306 (3), providing a two year statute of limitations for trespass and fraud is controlling in the case.
The defendant contends in order to toll the statute it is necessary to allege facts which clearly disclose that the fraud and trespass were first discovered at a time less than two years from the filing of the petition, and that the petition here clearly does not disclose such facts and no cause of action is stated.
There is no disagreement with defendant’s statement of the rule. The difficulty lies with its application.
The defendant takes the position that the changing of the initials J. “A.” Tobin for J. “E.” Tobin is a substitution of a new party defendant and the equivalent of filing a supplemental petition. Under this theory defendant contends that service was not had on J. “E.” Tobin until January 10,1956, and that if any cause of action is stated against him it is for the period of two years commencing from the date when the service of summons was had and dating back to a period commencing January 10, 1954.
The original petition was filed June 28, 1954, the first amended petition was filed August, 1954, and the second petition was filed November, 1955.
At this point defendant’s contention takes a peculiar twist. Assuming arguendo> J. E. Tobin was a new party and was not brought into the case until January 10, 1956, the defendant admits on the one hand that this date is within the two year period by five months and eighteen days (June 28, 1954) but on the other hand takes the position that the plaintiff alleges the acts of the defendant while done over a seven year period were not discovered by plaintiff “until shortly before the filing of this petition” according to the allegations added to the second amended petition. Defendant then reasons that the court would have to take judicial notice that the quarrying of 8,000 tons of rock and other alleged frauds and trespass could not have occurred in the five months and eighteen days (January 10, 1954 to June 28, 1954) remaining of the two year statutory period.
The defendant’s position may be good defensive matter but it is not a sound argument in the consideration of the second amended petition against a demurrer.
There is nothing in the petition to support the defendant’s contention that J. “E.” Tobin was, in fact, a new defendant and under the rule the court cannot go outside the petition to search the files or other recods of the case to substantiate it.
In American Glycerin Co. v. Freeburne, 157 Kan. 22, 138 P. 2d 468, the court dealt with this very question. Syllabus 2 reads:
“Before a demurrer to a petition can be sustained upon the ground the action is barred by the statute of limitations, the facts constituting the bar must appear on the face of the petition and cannot be supplied from the files in the case or other records which disclose the date on which summons was served on the defendants.”
There is nothing irregular about the correction of the name of a party to a lawsuit. In fact the court has a wide discretion in this matter and it has long been settled in this jurisdiction that such a correction or amendment relates back to the date of the filing of the original petition.
In Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444, the court said:
“It has been a long standing rule of this court 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 tlie 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. (Maddox v. Neptune, 175 Kan. 465, 264 P. 2d 1073; Hoffman v. Hill, 175 Kan. 826, 267 P. 2d 526; Talbott v. Farmers Union Co-op Elevator, 174 Kan. 435, 256 P. 2d 856; Smith v. LaForge, 170 Kan. 677, 228 P. 2d 509.) Moreover, the amended petition did not set up a new cause of action but merely tended to show the proper party plaintiff. This could be shown by amending the original petition, and such amendment would relate back to the commencement of the action so as to bar the statute from running in favor of the defendant. . . .” (p. 89.)
See, also, Dewey v. M’Lain, 7 Kan. 83 [2nd. Ed.]; Packing and Provision Co. v. Casing Co., 34 Kan. 340, 8 Pac. 403; Weaver v. Young, 37 Kan. 70, 14 Pac. 458; Farmers’ Bank v. Bank of Glen Elder, 46 Kan. 376, 26 Pac. 680; Bonding Co. v. Dickey, 74 Kan. 791, 88 Pac. 66; Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724; Butter Tub Co. v. National Bank, 115 Kan. 63, 222 Pac. 754; Braymer Mfg. Co. v. Midwest & G. Oil Corporation, 118 Kan. 439, 235 Pac. 847; and 39 Am. Jur., Parties, § 109.
Since the amendment of the middle initial “E.” for the middle initial “A.” in the defendant’s name allowed on motion by the court related back to the date of the filing of the original petition, the second amended petition is good as against demurrer on the ground it is barred by the statute of limitations. Assuming, arguendo, the defendant J. E. Tobin was a new party defendant brought in January 10, 1956, the petition would still be good. The date of filing the original petition was still within the two year period and the court could not take judicial notice outside the petition that the acts complained of could not have been performed in the short time of five months and eighteen days.
The defendant also complains that the court should not have overruled part of his motion to make definite and certain. No appeal is taken from the order and it was not included in the specification of errors. The correctness of these rulings is not before us for appellate review (Zinn v. Hill Lumber & Investment Co., 176 Kan. 669, 272 P. 2d 1106; Jackson, Administrator v. Weese, 180 Kan. 611, 305 P. 2d 839; Bortzfield v. Sutton, 180 Kan. 46, 299 P. 2d 584; and Daniels v. Wood Construction Co., 175 Kan. 877, 267 P. 2d 517).
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff commenced an ordinary replevin action against the defendant Henry Nausley in the district court of Cherokee County on December 14, 1953, by filing a petition wherein she alleged she was the owner of certain personal property, describing it, that such property was wrongfully detained from her by the defendant; that she had made demand for possession of the property, which demand had been refused; and that she was entitled to the return thereof or in case it could not be returned to judgment for its value. Defendant answered the petition on January 21, 1954, denying generallv each and all of the allegations and averments of that pleading.
It appears that nothing further was done in the case until February 6, 1956, on which date defendant, having first procured permission to do so, filed a lengthy supplemental answer, consisting of twelve paragraphs and certain exhibits relating to proceedings had in the probate court of Cherokee County in connection with administration of the estate of one Harry Arthur Nausley, deceased.
No useful purpose would be served by burdening this opinion with a detailed recital of the allegations of the supplemental answer. It suffices to say that the 12th paragraph thereof contains denials similar to those made in the answer and ill at the remaining eleven paragraphs and exhibits all have to do with matters and things on which defendant relies in defense of the action.
Upon the filing of the supplemental answer plaintiff filed a motion to strike all allegations of that pleading except the 12th paragraph thereof. In due course this motion was sustained and in connection with its ruling the trial court made the following statement:
“Plaintiff’s attorney in open court and in his motion to strike stated that plaintiff’s cause of action is not based upon a claim that she is the widow of the deceased or a claim against his estate, and the petition filed by plaintiff does not indicate any such claim. If any such claim is asserted by plaintiff, then the stricken matter in the supplemental answer would be pertinent and may be reasserted as a defense.”
Thereupon defendant perfected the instant appeal wherein he claims the trial court erred in sustaining the foregoing motion.
At the outset it must be remembered the universal rule of this jurisdiction is that rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable, and of a certainty do not result in reversible error, unless they affect a substantial right and in effect determine the action.
For a few of our decisions wherein such rule is discussed and applied see Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039; Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Estes v. Tobin Construction Co., 159 Kan. 322, 153 P. 2d 939; Bryan v. Enyart, 161 Kan. 337, 168 P. 2d 89; Giltner v. Stephens, 163 Kan. 37, 180 P. 2d 288; Krey v. Schmidt, 170 Kan. 86, 223 P. 2d 1015; Beck v. Philip Billard Post, 170 Kan. 490, 226 P. 2d 840; Billups v. American Surety Co., 170 Kan. 666, 671, 228 P. 2d 731; Shepard v. Klein, 172 Kan. 250, 239 P. 2d 930; Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 244 P. 2d 228; Marchant v. Layton, 173 Kan. 341, 245 P. 2d 973; Meek v. Ames, 175 Kan. 564, 266 P. 2d 270; Boettcher v. Crisciane, 180 Kan. 39, 299 P. 2d 806.
Reference to West’s Kansas Digest, Appeal & Error, §§ 78(3), 93, 103, Pleading, §§353, 363, 367(6); Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 20, Pleading, § 80, will disclose numerous other decisions of like import.
Another rule, less known because it applies to a particular type of action but nevertheless well-established, is that under a general denial in replevin the defendant may make any defense whatever that will defeat the plaintiff’s claim. (See Rodgers v. Crum, 168 Kan. 668, 671, 215 P. 2d 190; Street v. Morgan, 64 Kan. 85, 67 Pac. 448; Bank v. Shore, 87 Kan. 140, 123 Pac. 880; West’s Kansas Digest, Replevin, § 69[4]; Hatcher’s Kansas Digest [Rev. Ed.], Replevin, §§29, 31.)
Mindful of the rule last stated and that the trial court in ruling on the motion recognized and stated that the matters stricken from the appellant’s supplemental answer could be reasserted and established as defenses to the petition in the event they became pertinent to a decision of the cause we have little difficulty in concluding that the trial court’s ruling on the motion to strike did not have the effect of depriving appellant of any defense that he might have which would in law defeat the appellee’s claim. In other words, such ruling did not affect a substantial right and in effect determine the action. It follows there is sound ground for applica tion of the rule heretofore first stated. Even so we are not disposed to determine this case in such summary fashion.
Long ago in Auld v. Kimberlin, 7 Kan. 601, which has never been disapproved and throughout the years has remained the law of our state, this court put to rest the all decisive question raised by this appeal when it held:
“It is not error to strike from an answer averments that could be proven under the general denial, which was one ground of defense set up in the answer.” (Syl. ¶ 3.)
Moreover it is committed to the rule that an order striking out parts of an answer but which leaves it sufficient to present all proper defenses is not prejudicially erroneous. (See Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562 and Davies v. Lutz, 107 Kan. 199, 200, 191 Pac. 485.)
Rased on the foregoing decisions and what has been heretofore stated we are impelled to hold the trial court committed no reversible error in sustaining the appellee’s motion to strike.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by a workman from a judgment of the trial court denying compensation under our workmen’s compensation act.
On February 2, 1956, claimant was an employee of respondent, who operated a tile manufacturing plant. Claimant was sixty-three years of age and had been in respondent’s employ for approximately thirteen years. Claimant drove his car to and from work. He used the same route both ways each day. He parked north of the plant on a parking Jot furnished by respondent for its employees. To the west of this lot was Hall street. There were four openings, or exits, from the parking lot into Hall street. The second such exit was located about one third of the way north in the parking lot and during the proceeding before the examiner, this exit was shown and stipulated by the parties to be an alley running east and west through the block. It was unsurfaced and muddy east of tibe east boundary of respondent’s parking area. The alley did not continue west of Hall street. The alley, the same as respondent’s parking area, was surfaced with pieces of scrap tile. There were no distinguishing elements or markings between the alley and the parking lot surfaces.
The weather had been very cold and during the week previous to February 2, 1956, there had been two heavy snow storms which had made the surface of the parking area and alley very slick. The entire community had been subjected to the same conditions.
At 4:30 p. m. on the date in question claimant checked out as usual and walked into the north section of the parking area where his car was parked. He drove his car in a southerly direction and then drove west into the alley portion to a point just four or five feet east of Hall street where his car stalled. It was discovered that his right front tire was low and he started to get a tire pump out of the trunk of his car. As claimant attempted to open the car trunk, his feet slipped from under him causing him to fall and fracture his right scapula, or shoulder. A fellow employee pumped up the tire and took claimant to the hospital for treatment.
An employee who was also an officer in the plant union testified that day-shift employees were required to park in the north parking lot. Claimant was on this shift. The employee further testified that in previous years when there were similar snows causing slick or slippery conditions, respondent had furnished a truck to tow employees’ vehicles from slick places on the parking area. Since respondent had equipment which it used to clear off open and exposed walkways inside its plant when they were covered with snow, he had asked respondent’s maintenance supervisor on two of these previous occasions why it would not be much easier to clean off the runways.
The foregoing description of the premises is given to show the physical conditions surrounding the parking area. Nothing in this description is intended to detract from, to minimize, or to limit the stipulation between the parties that claimant fell in an alley.
The particular spot where claimant fell has been variously described and referred to in the record as an alleyway, an alley, and a public alley. We shall refer to it as an alley.
There is no dispute that claimant was injured and that proper notice was given and claim filed. However, respondent denied liability under the workmens compensation act.
The trial court made findings of fact, among others, that at the time of the fall claimant had completed his work, had left respondent’s premises, and was on his way home; claimant intended to drive west in the alley to Hall street; he had no duties to perform for respondent until his regular shift the following morning; respondent had no right or duty to exercise control over the alley nor did it do so; claimant suffered an accidental injury on the alley after he had left respondent’s premises; ice and snow on the alley where claimant fell were the result of climatic conditions and not the result of any acts of negligence on the part of respondent.
The conclusions of law provided, in substance, that claimant met with accidental injury that did not arise out of and in the course of his employment; claimant’s accidental injury had disabled him but he had recovered and returned to work; claimant had left his duties at the time of his accident and the proximate cause of his injuries was not due to respondent’s negligence; G. S. 1949, 44-508 (7c) prohibits claimant’s recovery because he had left the duties of his employment and the premises of respondent; the cause of his accident was the ice and snow covering the alley, which condition was not the responsibility of respondent; respondent had assumed no responsibility over or duty to maintain the alley free from ice and snow.
Judgment was entered by the trial court in favor of respondent and compensation was denied claimant, who has appealed.
It is apparent the trial court was of the opinion that the accidental injury was not incidental to nor did it have such causal relation with the employment as to justify a holding that the injury arose out of and in the course of claimant’s employment by respondent. (G. S. 1949, 44-501.)
The scope of the jurisdiction of our court in a workmen’s compensation case is limited to a review of the questions of law involved. The record must be accepted, as it is presented and we are bound to accept as correct the findings of the trial court if there is substantial competent evidence to support them. This is an accepted rule of appellate procedure in this state in cases of this character and it has been cited with approval as recently as in the case of Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725, this day decided. We conclude the findings of fact made by the trial court were supported by substantial competent evidence and, in turn, the conclusions of law were supported by and consistent with the findings of fact.
The authorities cited by the parties and the legal principles involved herein were considered in the case of Teague v. Boeing Airplane Co., 181 Kan. 434, 312 P. 2d 220, where the facts were almost identical with those herein except that in the Teague case the particular spot in the parking area where claimant slipped and fell, because of an icy condition, was entirely fenced by and under the exclusive control and supervision of the respondent. As can be seen from the record herein, that case is clearly distinguishable from this one.
G. S. 1949, 44-508 (k) provides:
“The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”
Claimant strenuously urges that we should adopt a rule followed in other jurisdictions to the effect that where the injured employee is “substantially” or “sufficiently” on the premises of the employer, the requirement of arising out of and in the course of the employment would be satisfied. He contends we have, for all practical purposes, adopted this rule by inference because in Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818, in discussing a Massachusetts case (Driscoll v. London Guar. & Acc. Co. Ltd., 2 Mass. Workm. Comp. Cas. 570, 12 N. C. C. A. 667) we made mention of that court’s words, “. . . if an employee is (reasonably?) on the premises. . . .” (p.695.) An examination of both the Corpora case and the Driscoll case discloses the fact that the employee in each case was actually on the premises and “reasonably” was not used in the sense that claimant attempts to have us apply it here. We would have to expand “reasonably” to include the terms “substantially” or “sufficiently” and this we cannot do because we would then be substituting this court’s determination of the facts for that of the trial court. (Shobe v. Tobin Construction Co., 179 Kan. 43, 46, 292 P. 2d 729.) Since the trial court had this same line of reasoning brought to its attention, but did not see fit to apply such a construction to the record before it, this brings us right back to the rule already stated that where there is substantial competent evidence to support the findings of the trial court, they will not be disturbed on appeal.
A careful examination of the record and the application of appropriate statutes together with our rule as to liberal construction in regard thereto all fail to disclose any error which would merit a reversal of the trial court’s determination of this lawsuit.
The judgment is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by Kenneth and Marvelle Ware, appellants, against State Farm Mutual Automobile Insurance Company, appellee, to recover damages, actual and punitive, alleged to have been sustained by them as a result of fraudulent conduct resorted to by appellee’s insurance adjuster in obtaining a release from appellants of a cause of action for damages for the wrongful death of their eight and one-half year old child as a result of the negligent operation of an automobile driven by the twelve-year old son of the appellee’s assured. Appellants will hereinafter be referred to as plaintiffs and appellee as defendant or insurance company. Defendant demurred to plaintiffs’ amended petition on the ground that it did not state a cause of action in favor of plaintiffs and against defendant. From an order of the trial court sustaining the demurrer, plaintiffs appeal.
For purposes of this appeal it is sufficient to note the petition alleged that plaintiffs were the parents of Duane Ware, eight and one-half years of age, who died as a result of injuries received while riding in an automobile owned by Clarence W. Smith, defendant’s assured, and driven by his son, Wesley Eugene Smith, twelve years of age, under his instructions; that during the ride the car was driven in such a negligent manner that it skidded across the road and into a concrete bridge, turning over and killing plaintiffs’ son; that the owner of the vehicle was negligent in permitting his son, then twelve years of age, to drive his automobile when he knew his son was neither authorized nor licensed to so do under the laws of Kansas and was not competent to drive.
It was further alleged that defendant had insured the automobile owned by Clarence W. Smith, indemnifying him against liability in the amount of $10,000.00 and providing for the payment of medical or funeral expenses to occupants not exceeding $500.00, which policy was in full force at all times; that three days after the death of plaintiffs’ son, on the day following the funeral, one Joe D. Allen, adjuster, agent and employee of the defendant, came to plaintiffs’ home and informed them he represented the insurance company that had written the liability insurance on the automobile in which plaintiffs’ son had been killed; that at this time plaintiffs were distressed, unnerved, and physically and mentally unable to transact business, and their condition was well known to defendant’s agent. Plaintiffs further alleged that at the time defendant’s agent wrongfully and fraudulently informed them they had no claim whatsoever against Clarence W. Smith, defendant’s assured, but because of a policy change since June 1, 1955, he could pay them $500.00 — the medical coverage under the policy — and this was all he could pay as there was no liability; that he further represented he was familiar with the new policy and if plaintiffs would furnish the funeral bill he would pay them $500.00; that because of their distressed mental state they relied upon such representations and accepted a $500.00 draft drawn on defendant by its agent; that the agent asked plaintiffs to sign a release, telling them it was a release for the $500.00 payment; that plaintiffs thereupon signed the release, which they did not read, relying upon the agent’s representation that it was for the payment of funeral expenses under the policy, but, subsequently, learned it was a complete release of their claims against defendant’s assured, Clarence W. Smith, and Wesley Eugene Smith, his son.
It was further alleged that the representations of defendant’s agent in procuring the release were false and fraudulent, as plaintiffs actually had a valid claim against defendant’s assured for $15,000.00 for the wrongful death of their son; that the change in defendant’s policy was not only for medical payment of $500.00 but was also for $10,000.00 liability insurance for wrongful death; that the release should have been for the medical payment only and not for the release of plaintiffs’ claim for the wrongful death of their son; that the fraudulent procuring of the release was for the purpose of preventing plaintiffs from prosecuting a claim against defendant’s assured; and that because of the release so procured defendant refused to pay plaintiffs’ claim on the ground that they had released its assured from further liability.
Plaintiffs asked for actual and punitive damages against the insurance company.
At the outset, it may be stated that this is not an action to recover damages for the wrongful death of plaintiffs’ son. It is an independent suit for damages sustained, based upon alleged fraud and deceit claimed to have been practiced upon plaintiffs by defendant’s agent and adjuster, resulting in plaintiffs signing a release of their cause of action against defendant’s assured, and, therefore, depriving them, through fraud and deceit, of their valuable right to be compensated for damages sustained. Although the validity of plaintiffs’ original claim against Clarence W. Smith, defendant’s assured, has to be established to determimne plaintiffs’ damages, it does not follow that it must be litigated in advance or that it cannot be litigated in this action.
The issues raised are whether plaintiffs had a valid claim against defendant’s assured, whether defendant by false and fraudulent representations deprived them of that claim, and whether as a result of the fraud they have been damaged.
First, did plaintiffs have a cause of action against defendant’s assured, Clarence W. Smith, and his son, Wesley? G. S. 1949, 8-222, provides:
“Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.”
We had occasion to construe the above statute in the case of In re Estate of Bisoni, 171 Kan. 631, 237 P. 2d 404, wherein we stated that the owner of a motor vehicle who permits his minor son under the age of sixteen years to' drive a vehicle upon a highway is liable for any damages caused by the negligence of such minor in driving the vehicle, irrespective of whether the son is liable under our guest statute G. S. 1949, 8-122b.
In view of the mentioned statute and decision, it is clear that the plaintiffs’ petition alleged sufficient facts to create a liability against defendant’s assured.
Second, did defendant through its adjuster by false and fraudulent representations deprive plaintiffs of the right of action against defendant’s assured? Plaintiffs’ petition charged defendant with all the essential elements of actionable fraud. They have alleged the making, falsity and materiality of the representations of defendant’s adjuster, his knowledge of their falsity, his intent that they should be acted upon by plaintiffs in the manner contemplated by him, plaintiffs’ ignorance of their falsity, plaintiffs’ rightful reliance on their truth, and the resulting damage. These allegations form a sufficient basis for the maintenance of this action.
Defendant contends that the adjuster s representations were mere matters of opinion and not of fact and, therefore, not actionable. We think not. Whether made in good faith or with fraudulent intent or merely through anxiety to make a good settlement for his insurance company, the fact remains that the adjuster did make the representations with the intention and for the purpose of inducing plaintiffs to make a settlement favorable to the insurance company and to part with- all right to recovery against its assured.
In Topinka v. American Eagle Fire Ins. Co., 167 Kan. 181, 185, 205 P. 2d 991, we stated:
“Where the insurance adjuster’s false representations resulted in damage to the assured, the latter’s pain of loss is not eased by the appellant’s averments that the adjuster believed his statements to assured were true at the time they were made. False statements and misrepresentations of fact made by the insurance adjuster to the plaintiff for the purpose of inducing plaintiff to part with his property or property right, when relied upon by plaintiff, are actionable regardless of whether the adjuster knew his statements to be false or regardless of whether he made them in reckless disregard of their truth. (Wickham v. Grant, 28 Kan. 517; Dodd v. Boles, 137 Kan. 600, 21 P. 2d 364; Westerman v. Corder, 86 Kan. 239, 119 Pac. 868; Bice v. Nelson, 105 Kan. 23, 180 Pac. 206, 181 Pac. 558; Becker v. McKinnie, 106 Kan. 426, 186 Pac. 496; Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067; Bank v. Hart, 82 Kan. 398, 108 Pac. 818; Nelson v. Healey, 151 Kan. 512, 99 P. 2d 795; Kurt v. Cox, 101 Kan. 54, 57, 165 Pac. 827.)”
See Black on Rescission and Cancellation (2d ed.), sec. 102, pp. 300-303.
In Becker v. McKinnie, 106 Kan. 426, 427, 186 Pac. 496, we stated:
“The defendant cannot escape liability for such false representations, even if he did not know them to be untrue. He had the means of knowledge, and it was his duty to know the truth before making the representations that were made. Having made them as facts and thereby induced the plaintiff to rely on the statements to his prejudice, he is bound although he may not have known that they were untrue, and may have had no purpose to defraud the plaintiff. Under the circumstances, knowledge of the untruth is imputed to him, and in contemplation of law he knew his statements were false.”
An insurance adjuster, to properly perform his duties, should know the coverage of the policy under which he attempts to settle claims. He is clothed by his company with authority and is presumed to be familiar not only with the terms of the policy but also with the laws of the state. If he lacks such information, he has the means of obtaining it and, therefore, should be held accountable for any representations made concerning the policy’s coverage at any particular time. Since he has such knowledge or the means of obtaining such knowledge, it is his duty to know the truth before b.e speaks. Actual knowledge or intent under these circumstances is immaterial. It is therefore apparent that defendant’s adjuster knew or should have known that plaintiffs had a just cause of action against the assured for the wrongful death of their son. The plaintiffs had a right to rely upon the adjuster’s statements as those of a person speaking with complete factual knowledge.
Third, defendant contends that even though the release was fraudulently obtained it is not binding and plaintiffs may still maintain an action for damages against defendant’s assured and, therefore, plaintiffs have suffered no damage. There is no merit to this contention. When plaintiffs signed the release of their cause of action against the assured, Clarence W. Smith, and his son, they gave up a valuable right — a right to sue the tort feasors for the wrongful death of their son.
An action could not now be maintained against the assured except on the theory of rescission. It is a well-established rule that where a release of a cause of action is procured by fraud the defrauded party may choose any one of three remedies: (1) he may return the consideration paid for the release, thereby rescinding the transaction; (2) he may sue for a rescission and offer to return the consideration; or (3) he may waive his right to rescind and sue to recover any damages suffered by reason of the fraud perpetrated upon him. See Kordis v. Auto Owners Ins. Co., 311 Mich. 247, 18 N. W. 2d 811; Inman v. Merchants Mut. Casualty Co., 74 N. Y. S. 2d 87, affirmed in 274 App. Div. 320, 83 N.Y. S. 2d 801; Automobile Underwriters, Inc. v. Rich, 222 Ind. 384, 53 N. E. 2d 775; Bailey v. London Guarantee, etc., 72 Ind. App. 84, 121 N. E. 128; Brown v. Ocean Accident & Guarantee Corp., 153 Wis. 196, 140 N. W. 1112; Pattison v. Highway Insurance Underwriters (Tex. Civ. App.), 278 S. W. 2d 207.
The defendant by accepting the fruits of the alleged fraud of its adjuster rendered itself liable for the fraud. Plaintiffs were not required to sue defendant’s assured as the primary tort feasor nor is the assured a necessary party to this action. They had the right to select their own remedy to recover damages by reason of the fraud perpetrated upon them by the defendant.
It follows that the order of the trial court sustaining defendant’s demurrer to plaintiffs’ petition is reversed and the cause is remanded with directions to reinstate plaintiffs’ petition and fix the time for defendant to answer.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was a common law action to recover damages for personal injuries sustained by plaintiff (appellee) which were alleged to have been caused by the negligence of defendant (appellant).
Both the original and the amended petition alleged that the action was brought by plaintiff’s employer and its insurance carrier in the name of the plaintiff for the benefit of the employer, its insurance carrier and the injured workman (plaintiff) as their interests may appear as provided by G. S. 1955 Supp., 44-504.
The injuries in question occurred November 20, 1953. The original petition for damages was filed October 13, 1955. Defendant filed a motion asking that the petition be made more definite and certain in several particulars. Plaintiff did not appear at the hearing and the motion was sustained by the trial court. Plaintiff complied with the trial court’s ruling by filing an amended petition on January 24, 1956, to which defendant filed still another motion to make more definite and certain, which was very properly overruled by the court. Inasmuch as the amended petition shows a restatement of the same cause of action between the same parties for the same injury due to the same identical, specific negligent acts of the defendant as did the original petition, we will narrate such pertinent allegations thereof as are necessary to determine the questions presented.'
It is alleged plaintiff was injured while.he was working for the Evans Electrical Construction Company in Coffeyville as a foreman of a line crew; that at the time his employer Evans was engaged in rebuilding and maintaining electrical equipment for the city of Coffeyville; that just prior to the time plaintiff was injured he had helped to secure and attach chains to a switch gear, which chains were then attached to a cable extending from the boom of a crane; that as a result of the injuries to plaintiff his employer and his insurance carrier paid certain medical expenses and compensation and were subrogated to the amount against defendant; that the trade or business of defendant at the time in question was the moving of a five-ton switch gear by the use of a crane from a flat-top railroad car to a flat-top trailer truck, which crane and truck were owned by defendant. Paragraph 6 of the amended petition reads:
“6. Plaintiff further states that on or about the 20th day of November, 1953, the defendant, through his said agent, servant and employee, William Boan, under oral contract with the City of Coffeville, Kansas, was engaged in moving a heavy five ton switch gear from a flat top railroad car to a flat top trailer truck by means of a motor crane which was mounted on a truck which said crane and flat top trailer truck were both owned by said defendant George Muller; that the terms of said oral contract provided that the defendant was to move a five ton switch gear from a railroad car to a point at the electric plant in Coffeyville, Kansas, and the defendant was to and did bring the necessary heavy equipment, including a crane and a flat top trailer truck and the necessary men to operate said heavy equipment and move said switch gear; that the defendant through his said agent, servant, and employee, William Boan, was in charge of and directed the moving of said switch gear which was being done for the defendant; that plaintiff and Iris line crew had been instructed by the Evans Electrical Construction Company to do and only did the work of securing and attaching the chains to the switch gear; that the moving of the said switch gear from the flat top railroad car to the flat top trailer truck was a part of the work which the defendant had contracted to do and was doing through the defendant’s agent, servant, and employee William Boan; that Charles E. Robinson and members of his crew as a part of their work for Evans Electrical Construction Company attached chains to the switch gear which were then attached to a cable extending from a boom of the said crane mounted on the defendant’s truck, and the said employee of the defendant was engaged by use of said crane in lifting the switch gear weighing approximately five tons, to move it from the flat-top railroad car to defendant’s flat top trailer truck which was located alongside the railroad car; that Charles E. Robinson was on the flat top trailer truck and was caused to be struck and injured through the carelessness and negligence on the part of the defendant through the said agent, servant, and employee as will be hereinafter more specifically set out when the boom extending from the crane was caused to break off and Charles E. Robinson was struck in the head and other parts of his body by the falling boom and was knocked to the ground and was rendered unconscious causing Charles E. Robinson to sustain severe and permanent injuries as hereinafter described.”
Plaintiff alleged the breaking off and the fall of the boom was directly caused by the negligence of defendant in seven specified particulars and that as a direct and proximate result of such negligence on the part of defendant plaintiff sustained severe and permanent injuries as described, and asked for judgment in the amount stated therein. It is not necessary to relate the specific acts of negligence alleged or the injuries sustained.
Defendant again attacked the amended petition by a motion to make more definite and certain, which was overruled in all particulars except one and this was complied with by interlineation. Defendant then interposed a demurrer on the ground that the petition as amended failed to state facts sufficient to constitute a cause of action by plaintiff against defendant. From an order of the trial court overruling defendant’s demurrer, he appeals.
Defendant contends the amended petition discloses that the defendant was a special employer of plaintiff with respect to the particular work out of which the injuries arose and that plaintiff could have asserted his valid claim for compensation against him. Thus, the plaintiff’s sole remedy was under the provisions of the Workmen’s Compensation Act and, therefore, he had no common law cause of action against defendant. There is no allegation in the petition that the plaintiff was performing any work in defendant’s trade or business, or that the defendant exercised any direction, control or authority over the plaintiff at the time of the injuries, or that there were any contractual relations between plaintiff and defendant. On the contrary, it was alleged that plaintiff was employed by the Evans Electrical Construction Company and was at the time performing work of his employer. The existence of an employer-employee relationship, whether it be general or special, ultimately depends upon the existence of express or implied contractual relations between the parties. Workmen’s compensation rights are rights arising out of contract, since the existence of these rights depends upon an employer-employee relationship which must be based on contract. (Floro v. Ticehurst, 147 Kan. 426, 76 P. 2d 773; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868.)
Giving the petition the benefit of the inferences to which it is entitled, we are unable to say that it alleges facts sufficient to warrant recovery against the defendant under our Workmen’s Compensation Act, and this would be necessary if defendant’s contention were followed. The defendant would have us read into the petition defensive matter which he sought to have plaintiff allege by his motion to make more definite and certain, which the trial court overruled. This we cannot do. A demurrer to a pleading is considered entirely upon the allegations contained therein and the proper exhibits attached thereto. (Southard v. Mutual Benefit Health & Accident Ass’n, 177 Kan. 26, 276 P. 2d 299; Whitaker v. Douglas, 177 Kan. 154, 277 P. 2d 641.)
Defendant next contends that the original petition failed to state a cause of action against defendant and inasmuch as the amended petition was filed after the Statute of Limitations had run, even if it then stated a cause of action, it was filed too late. We need not labor this point as we have examined both the original petition and the amended petition and both clearly state a common law cause of action in favor of plaintiff and against defendant. We have repeatedly held 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 petition by setting out more definitely that which was imperfectly pleaded or which substituted a correct for an erroneous statement of facts and do not set up a new cause of action, the fact that the Statute of Limitations had run when the amended petition was filed is not a bar to recovery, for in such a case the amended petition relates back to the date of the filing of the original one. (Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444; Hoffman v. Hill, 175 Kan. 826, 267 P. 2d 526; Springer v. Roberts, 151 Kan. 971, 101 P. 2d 908.)
A careful analysis of the petition as amended discloses that it alleges a common law cause of action to recover damages for personal injuries due to the negligence of defendant. The trial court did not err in overruling defendant’s demurrer thereto.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is an action to foreclose a mechanic’s lien, and the appeal is from an order denying plaintiff’s motion for permission to amend the lien statement.
On March 16, 1956, plaintiff filed with the clerk of the district court its verified lien statement as follows:
“Statement for Lien.
“Know all men by these presents, That the undersigned Logan-Moore Lumber Co., a corporation, does hereby claim, under and by virtue of the mechanic’s lien law of the State of Kansas, a lien upon the premises hereinafter described and upon the buildings and improvements thereon, as follows, to-wit:
“Lot number Eight (8) in Mitchell Addition, an addition to the City of Lawrence.
“And for the purpose of obtaining a lien upon said land, the buildings and appurtenances thereon, does declare:
“First: That the total amount claimed $833.43, together with the legal rate of interest thereon from and after 6% after Jan. 16, 1956.
“Second: That the name of the owner of said premises is Frank C. Foley and Adelaide K. Foley, his wife.
“Third: That the name of the claimant herein is Logan-Moore Lumber Co., a corporation, the undersigned.
“Fourth: That the name of the original seller and material man by whom, said goods was sold is Logan-Moore Lumber Co., a corporation, aforesaid.
“Fifth: That an itemized statement of said material furnished on account of which said sum is due and on account of which this lien is claimed is hereto attached, made a part hereof and marked Exhibit ‘A’.
“Sixth: That said material was furnished under a certain contract and
running account, made and entered into with the undersigned, by said owner, of the above described land.
“Seventh: That said material on account of which this hen is claimed, was furnished at intervals as shown by said statement of items hereto attached and marked Exhibit ‘A’ from and including the 2nd day of November, 1955, and the 16th day of Jan., 1956.
“Eighth: That said material was used in and upon said premises and for the improvement thereof.
“Ninth: That the last item of said account was furnished by the claimant to the said owner on the 16th day of January, 1956.
“Tenth: That the items of merchandise furnished as shown by Exhibit ‘A’ were charged for at reasonable prices and the same were furnished at the instance and request of said owner.
“Eleventh: That the sum herein claimed is the balance and total amount due and said statement of items hereto attached and marked Exhibit ‘A’ shows all just credits.
“Witness Its hand this 16th day of March, 1956.
“Logan-Moore Lumber Co.
By Harold Kuekeb, Jr. Manager”
Exhibit “A,” being the itemized statement of material furnished, and referred to in item Fifth of the lien statement, is as follows:
“Exhibit ‘A’.
“Logan-Moore Lumber Company lumber — cement—roofing 900 North Second St. Phone 113 Lawrence, Kansas
“Leland Lewis
Jb 308
1203 W 20th Terrace Date 3-12-56
0-10532 11-2-55
155 pcs. 4" Drain Tile @ .10 15.50
2 5 gal. foundation ctg. @ 4.25 8.50
2-6" Brushes. @ .85 1.70
25.70
Tax .52
26.22
The statement includes items of other materials, last of which was furnished on January 16, 1956. Total amount due.......................$883.43”
On the date the lien statement was filed plaintiff wrote the following letter to one of the defendants:
“Logan-Moore Lumber Company
627 Massachusetts St. Phone 113
Lawrence, Kansas
March 16, 1956
“Mr. Frank C. Foley
1203 W. 20th Terrace
Lawrence, Kansas
Dear Sir:
We have as of this date filed a ‘Mechanic’s Lien’ on your property. The amount of the lien being $883.43. This is the amount due for material purchased by Mr. Leland Lewis for the construction of your residence. We regret that this action was necessary.
Sincerely yours,
Harold Kueker, Jr.”
This letter, sent by registered mail, was received on March 19, 1956.
On June 26, 1956, plaintiff filed its petition to foreclose the mechanic’s lien in question, setting forth that on or about November 2, 1955, defendants Foley entered into a verbal contract with defendant Leland Lewis for the construction of a residence and other improvements on the described property, under which contract Lewis was to furnish all material and labor, and that Lewis had constructed the dwelling house and other improvements in accordance with the contract. It is further alleged that between November 2, 1955, and January 16, 1956, plaintiff sold and delivered to defendant Lewis building materials set forth in the lien statement in the amount of $883.43, and that no part thereof had been paid either by Lewis or defendants Foley, the owners of the property. The petition further alleges that when plaintiff filed its lien statement it failed to name therein the contractor, Leland Lewis, and included in the prayer is a request for permission to amend the lien statement by naming Lewis as the contractor who entered into the contract with the owners, defendants Foley, for construction of the dwelling house and improvements.
On October 2, 1956, plaintiff filed a separate motion for permission to amend its lien statement in the identical respect as the request contained in the petition.
On November 9, 1956, this motion was overruled, and plaintiff has appealed.
In deciding the question the trial court filed a detailed memorandum in which it carefully analyzed the issues and stated its reasons for overruling the motion, but which, in the interest of brevity, will not be set out.
Discussion of this question involves the provisions of several sections of our lien statute. G. S. 1949, 60-1401, concerns a situation where a claimant furnishes material or labor under a contract with the owner of the property involved, and G. S. 1949, 60-1402, provides that anyone claiming a lien under the preceding section of the statute shall file his lien statement setting forth as nearly as practicable, the name of the owner, contractor, and claimant, and a description of the property subject to the lien, within four months after the date upon which material was last furnished under the contract.
G. S. 1949, 60-1403, provides for a lien in favor of one who furnishes material under a subcontract with the contractor, and further provides that the lien statement, among other things, must contain the name of the contractor, and must be filed within sixty-days after the date upon which material was last furnished.
It will be noted that in items Second, Sixth, Ninth and Tenth of the lien statement here involved defendants Foley are named as the owners; that the material was furnished under a contract made and entered into between plaintiff and the owners; that the last material was furnished by plaintiff to the owners on January 16, 1956, and that such material was furnished at the instance and request of such owners.
In support of its contention that it was entitled to amend the lien statement, plaintiff relies upon G. S. 1949, 60-1405, which provides that in case of action brought, any lien statement may be amended, except as to the amount claimed, by leave of court in furtherance of justice, and cites Thomasson v. Kirkpatrick, 174 Kan. 52, 254 P. 2d 329, in which it was said that the real test of whether such amendment should be made is whether doing so is in furtherance of justice.
Defendants, on the other hand, contend that plaintiff, having filed its lien on the theory of a contract with the owners, as provided by G. S. 1949, 60-1401, is not to be permitted to amend the lien statement on the theory of a subcontract with the contractor, as provided by G. S. 1949, 60-1403, long after the time had expired for filing a lien statement under that statute, and that to permit such an amendment would in effect allow plaintiff to file its lien after the bar of the statute had fallen.
In our opinion, defendants’ contentions are well taken and the trial court correctly decided tire question.
Plaintiff’s lien statement (we are advised that it was not prepared by its counsel) was based upon its contract with the owners, defendants Foley. It was filed within time. It is true that Exhibit “A,” attached to it, (above set out) mentions the name “Leland Lewis,” but nowhere in the lien statement or the exhibit appears any averment, direct or otherwise, that Lewis was the contractor and that plaintiff’s contract was with him. In fact, the very language of the lien statement negatives the proposition now urged by plaintiff, for it specifically states the contract for material was had between plaintiff and defendant owners. It also is true that plaintiff’s letter of March 16, 1956, (above set out) states that the material was purchased by Lewis for the construction of defendant owners’ res idence, but that of course is no part of the lien statement by way of exhibit or otherwise. The situation here presented is entirely different from that in the Thomasson case, supra, as is readily disclosed by an examination of the lien statement there involved and set out on page 55 of the opinion.
In Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, 251 Pac. 196, it was held that a lien statement filed by a subcontractor to subject the property of an owner to liability for materials furnished to the principal contractor, and used by the latter to improve the owner s property, is fatally defective if it fails to state the name of the contractor as the statute prescribes, and that a failure to conform to a statutory requisite in the recitals of a lien statement, such as designating the contractor to whom the materials were furnished and by whom they were used in the improvement of the property sought to be subjected to a subcontractor’s lien, is not aided by the allegations of the subcontractor’s petition in an action to enforce the lien for the reason that the lien statement filed for record must be legally sufficient in itself in order to authorize its enforcement, and that a petition and cause of action must draw their virtue from a valid and binding lien, and a lien statement acquires no virtue from mere elaboration of a plaintiff’s pleadings in a cause of action seeking to enforce the lien.
As already stated, plaintiff’s lien statement specifically alleges the material was sold to defendants Foley, as owners, under contract with them. By the request to amend it sought to change its position by naming Lewis as the contractor who entered into the contract with the owners, and that it sold and delivered the material to Lewis. By such amendment it is clear that plaintiff, long after the statutory time had expired, sought to bring itself within the provisions of G. S. 1949, 60-1403, and, under the facts and circumstances presented, it was not entitled to do so.
G. S. 1949, 60-1405, heretofore mentioned and relied on by plaintiff, which provides that in case of action brought, any lien statement may be amended except as to the amount claimed, by leave of court in furtherance of justice, also provides that the practice,pleading and proceedings in an action to enforce a lien shall conform to the rules prescribed by the code of civil procedure as far as the same may be applicable, and that any amendment is to be governed by the same principles as apply to pleadings. G. S. 1949' 60-759, relating to the power of courts to allow amendments to pleadings, sets forth the conditions and circumstances in which pleadings may be amended “when such amendment does not change substantially the claim or defense.”
If the lien statement filed by plaintiff created a valid hen it created one based on the theory of a contract with defendant owners. To permit the amendment later sought would in legal and practical effect permit plaintiff to obtain a lien based on the theory of a subcontract with the contractor long after the period allowed by statute for obtaining such a lien. The provision for amendment of the hen statement in a proceeding brought for its enforcement is not intended to authorize the court to create a hen where none was created by the statement which was filed. In one sense of the word, there really was nothing for plaintiff to amend, and even if there were, the requested amendment most certainly sought to change substantially the claim. In either event, the ruling of the trial court was correct and 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 Shawnee County affirming the enforcement of a Shawnee County zoning resolution as it applies to appellants and permanently en joining appellants from using their property in violation of the resolution.
Pursuant to the provisions of G. S. 1955 Supp., 19-2927 through 19-2936 the Board of County Commissioners of Shawnee County caused to be adopted on August 7, 1953, a zoning resolution recommended by the Shawnee County Planning Commission and the Board of Zoning Appeals of Shawnee County.
This resolution was entitled “Shawnee County Zoning Plan.” Under the provisions of the statute this resolution provided for zoning regulation within the unincorporated territory lying within three miles of the city of Topeka, a city of the first class in Shawnee County.
The resolution divided the area into six districts, to wit: two classes of residential, local shopping, commercial, light industrial and heavy industrial. It declared auto wrecking yards and the storing or locating of trailers as nonconforming uses in residential districts. The resolution further provided that auto wrecking yards and trailers shall be discontinued or removed within two years from the effective date of the resolution. It then provided that the Board of County Commissioners may, by special permit, authorize the location of certain buildings or uses in any district from which they are otherwise prohibited by the resolution. Trailers were included in the list eligible for special permits, but not auto wrecking yards.
The appellants are the owners of a tract of land purchased in 1950 which lies in the three mile zone and is designated by the resolution as within a residential district.
On this land the appellants are engaged in the business of auto sales, repair and wrecking. After acquiring it, they made a number of valuable improvements in addition to the general value of the business.
Upon publication of the notice to discontinue the nonconforming uses of junk yards, auto wrecking and trailers, as provided by the resolution, the appellants made application for a change in zoning from “residential” to “heavy industrial” which would have permitted the continuance of their business. The application was denied, and in due course the matter was tried to the district court of Shawnee County.
The court made the following findings of fact and conclusions of law:
“2. The plaintiffs are the owners of a tract of land of approximately 4.85 acres in area, the use of which under the Shawnee County Zoning resolution is the subject of this action. This tract of land is quite hilly and uneven and has considerable rock running through it.
“3. Plaintiffs tract of land is located south and east of the city limits of the city of Topeka. The north boundary is 320 feet long and lies along East Fifteenth Street. It is bounded on the south by Drake sub-division; on the east by Branner Street and on the west by a tract of vacant land. It is eight city blocks from Fifteenth Street and Kansas Avenue. The city limits of Topeka is 100 feet north of the north edge of Fifteenth Street and approximately 400 feet west of the west line of plaintiffs’ tract.
“4. The surroundings of plaintiffs’ tract are as follows: To the north
across the street are four houses in poor condition; to the west is the tract of vacant land, a road and Shunganunga Creek, which is the boundary line of the city; to the south are vacant lots and residences, and across the street to the east are vacant lots.
“5. The improvements on the land consist of a concrete block building used for a body and fender shop or repair shop, one frame building used as a shop and for storage, miscellaneous storage sheds, fences and driveways. The total value of the improvements are approximately $18,000.00 and the value of the land is $7,000.00.
“6. The tract of land and improvements thereon are being used by the plaintiffs for the business of used car sales, auto wrecking and automobile repairing. This use has been continuous and uninterrupted since April 11, 1950. Plaintiffs wreck and rebuild autmobiles using parts from wrecked cars stored on the premises and sell rebuilt cars on the premises. They also repair cars on the premises. About 175 wrecked cars or portions thereof are on the premises at all times. Some cars remain as long as two or three years before the pieces are finally junked. They have 3 to 4 employees and operate 3 trucks which are kept at the lot. As many as 3 or 4 wrecked cars a day are brought in sometimes and are cut up by oxygen and acetylene torches.
“7. On August 13, 1953, the effective date of the county zoning resolution, plaintiffs had on hand automobile parts from wrecked automobiles, usable as replacement parts, in the value of approximately $5,000.00. Other parts of cars on hand not usable as replacement parts were worth approximately $2,500.00 as scrap metal. The automobile parts usable for replacement would be worth much less than $5,000.00 if not permitted to be held and sold as needed for such replacement parts. The estimated cost of moving the wrecked cars and automobile parts on hand on August 13, 1953, was $4,500.00, and time required for such removal is approximately four months. The number of wrecked cars and the quantity of replacement parts on hand at the date of trial were approximately the same as on August 13, 1953.
“8. Plaintiffs’ property was placed in a residential district by the county zoning resolution, as was all property contiguous to it. To the south and east of the tract is the area known as Highland Park, which is essentially residential except for. occasional areas zoned as neighborhood shopping. The zoning in the city of Topeka adjacent to this tract is light and heavy industrial. Shunganunga Creek is a natural barrier and boundary line for zoning districts as is Fifteenth Street on the north. The south side of Fifteenth Street within the City limits is zoned residential and light industrial.
“9. The use of plaintiff’s property for auto wrecking ... is a nonconforming use under the Shawnee County Zoning Resolution and particularly under Section 10 of that resolution.
“10. Sub-section G of Section 10 of the Shawnee County Zoning Resolution reads as follows:
‘The non-conforming use of a building or premises for the purpose of dismantling or wrecking automobiles and other vehicles of any kind, or for the purpose of storing junk, scrap iron and scrap material including dismantled and wrecked automobiles of other vehicles, and which is located in the R-l or R-2 Residential District, shall be discontinued and the building or premises thereafter devoted to a use permitted in the district in which such building or premises is located, within two (2) years from the effective date of this resolution.’
and under the provisions of this sub-section the use of plaintiffs’ property for the purpose of dismantling or wrecking automobiles and other vehicles of any kind, or for the purpose of storing junk, scrap iron and scrap material including dismantled and wrecked automobiles or other vehicles, should have been discontinued on August 13, 1955.
“11. Two years is a reasonable length of time within which to require a discontinuance of the prohibited uses mentioned in sub-section C of Section 10 of the Shawnee County Zoning Resolution considering -the nature of the use, and the plaintiffs’ investment in improvements devoted to those uses.
“12. The Board of County Commissioners did not act arbitrarily or capriciously in adopting the Shawnee County Zoning Resolution.
“Conclusions of Law
“1. The Shawnee County Zoning Resolution was adopted pursuant to the provisions of Chapter 239, Laws of 1951 as amended (Sec. 19-2927 to 19-2936, G. S. Supp. 1955), and has been in full force and effect since August 13, 1953. Said resolution is legal and valid.
“2. The use of plaintiffs’ property for the purpose of dismantling or wrecking automobiles and other vehicles of any kind or for the purpose of storing junk, scrap iron and scrap material including dismantled and wrecked automobiles or other vehicles has at all times since August 13, 1955, been unlawful and has constituted a nuisance.
“3. Plaintiffs and each of them should be permanently enjoined from using the property described in plaintiffs’ petition for any of the above purposes.
“It Is Therefore by the Court Ordered, Adjudged and Decreed that the plaintiffs be and they are hereby denied the relief prayed for in their petition and that the plaintiffs be and each of them are hereby permanently enjoined from using the property described in plaintiffs petition for the purpose of dismantling or wrecking automobiles and other vehicles of any kind, or for the purpose of storing junk, scrap iron and scrap material including dismantled and wrecked automobiles or other vehicles.
“It Is Further Ordered and Decreed that plaintiffs’ motion for a new trial be and the same is hereby overruled and that the costs of this action be and they are hereby taxed to the plaintiffs.’’
The appellants make six specifications of error.
The regularity of the adoption of the resolution is not questioned.
Appellants first raise the question as to whether the Board of County Commissioners selected the proper statute for zoning property within the county and urge that the county should have selected another statute which did not provide for the elimination of nonconforming uses.
The power to zone within the counties of Kansas is a relatively new one. The laws are found in Article 29, Chapter 19, General Statutes of Kansas of 1949 as amended. Prior to 1953 the legislature had provided two plans for county zoning. Sections 19-2901 to 19-2913 incl., provide a plan for zoning within any township in a county which lies outside the limits of any incorporated city. This law now applies to all counties over 75,000 population. Sections 19-2914 to 19-2926 inch, provide for a county wide plan of zoning. Under recent amendments this plan may be used in counties between 10,000 and 200,000 population.
In 1951 the legislature added a third plan, sections 19-2927 to 19-2936 inch, which provide for zoning of any county having first or second class cities and not operating under the provisions of the county zoning law (19-2914, et seq.). Under this law the zoning regulations are limited to the unincorporated territories lying within three miles of the city. This law also provides in 19-2930:
“. . . The powers of this act shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted, except that reasonable regulations may be adopted for the gradual ehmination of nonconforming uses.”
The other two plans do not provide for the gradual elimination of nonconforming uses. Section 19-2919 did so provide until amended in 1953.
Each of these three plans has distinguishing features and is independent of each other. Any county may choose the plan most suitable to its particular need.
In this case the Board of County Commissioners of Shawnee County chose the plan provided in 19-2927, et seq. Appellants cannot be heard to complain another should have been chosen notwithstanding the fact the plan so chosen was the only one which provided for the gradual elimination of nonconforming uses.
It is the next contention of the appellants that the Board of County Commissioners acted in an arbitrary, capricious and unreasonable manner in failing and refusing the appellants the right to continue their business on real estate which they had owned prior to the enactment of the zoning resolution and, particularly, in discriminating against auto wrecking yards by refusing them any right to special permit.
These and similar objections to zoning ordinances have been previously before this court. Most of the cases have arisen under the city zoning laws but the same principles are involved and the law of these cases would be applicable to the more recent county zoning resolutions.
The leading case is Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99. The facts of that case were somewhat similar to the case at bar. The court held that cities may create reasonable zoning districts and prohibit the construction of certain classes of buildings within the districts. Such ordinances are a valid exercise of the police power and do not violate any provision of state or federal constitutions.
This case has been followed and quoted in many subsequent cases and it would serve no purpose to quote it at length here. (Armourdale State Bank v. Kansas City, 131 Kan. 419, 292 Pac. 745; Hoel v. Kansas City, 131 Kan. 290, 291 Pac. 780; Ford v. City of Hutchinson, 140 Kan. 307, 37 P. 2d 39.)
In a later case, West v. City of Wichita, 118 Kan. 265, 234 Pac. 978, the court said:
“. . . When once the power to zone and to restrict uses of property in designated zones is recognized (and that is settled in this state by the Ware case), then the particular classification for use made by the ordinance ought not to be set aside without substantial reason, specifically applicable thereto. . . .
“. . . In so far as the authority of the city to pass a zoning ordinance making restrictions upon the use of property in certain designated districts, that question is not open to controversy. It was settled by the decision of this court in Ware v. City of Wichita, supra. . . .” (pp. 266 & 267.)
See, also, City of Norton v. Hutson, 142 Kan. 305, 46 P. 2d 630.
Notwithstanding that zoning is a valid use of the police power, subsequent cases made it clear, as appellants contend, that the courts do have authority in a proper proceeding to inquire into the facts of a specific case to determine whether, as to specific property, the ordinance is reasonable. (City of Wichita v. Schwertner, 130 Kan. 397, 286 Pac. 266.)
In making this inquiry it is not enough to avoid the ordinance because the- use of property for a desired purpose is forbiddem Furthermore, the court may not substitute its judicial judgment for the legislative judgment of the city, rather the court is obliged to find facts which demonstrated that the city’s conduct departed from the realm of the reasonable and passed over into the realm of the arbitrary and capricious (Heckman v. City of Independence, 127 Kan. 658, 274 Pac. 732).
Also, whether or not a certain place constitutes a nuisance is a question of fact to be determined from the evidence. If there is evidence sufficient to support the finding that finding will not be disturbed. (State, ex rel., v. Wade, 128 Kan. 646, 278 Pac. 1067; Simmonds v. Meyn, 134 Kan. 419, 7 P. 2d 506.)
On the matter of nonconforming, uses this court said in City of Norton v. Hutson, supra, Syllabus 1:
“A city zoning ordinance provided that structures and business establishments which existed at the time it was adopted might be continued although they did not conform to the provisions of the ordinance. Such nonconforming structures and uses did not vitiate the ordinance nor the statute which sanctioned it; and a conviction for a violation of the zoning ordinance by defendant who undertook to establish and operate a business at variance with its terms was proper, although similar business theretofore lawfully established was specifically permitted by its terms to continue after the ordinance took effect.”
In the case at bar there is evidence sufficient to sustain the court’s findings that the Roard of County Commissioners did not act arbitrarily, capriciously or unreasonably in adopting the resolution or in its application to the appellants. Under these circumstances we cannot substitute our judgment and hold contrariwise.
As harsh as the effect may be on the appellants’ business there is no unlawful discrimination against them. The fact is that the resolution treated all auto wrecking businesses alike within the three mile area. Thus the classification was reasonable and well within the rules laid down by the above authorities.
Appellants state that the failure to provide for special permits to auto wrecking yards is equivalent to “spot zoning” and, therefore, unreasonable. In Duggins v. Board of County Commissioners, 179 Kan. 101, 293 P. 2d 258, this court held that such special permits under the county zone plan did not constitute “spot zoning.”
Appellants call our attention to many other cases including a recent one decided by this court (Hudson Properties, Inc. v. City of Westwood, 181 Kan. 320, 310 P. 2d 936) wherein an examination was made as to the validity of a city ordinance. The case is distinguishable. The ordinance in question was invalid because it failed to establish a uniform standard for its application. The court held the ordinance was an attempt to confer arbitrary power on the governing body of the city. The standard here is uniform in its application to all businesses coming within the various classifications.
The most important point raised by appellants, and one of first impression here, is the reasonableness of the resolution eliminating appellants’ business within a two year period. Appellants state the question:
“May a zoning resolution provide for the mandatory elimination of a nonconforming use within a reasonable time, and if so, is the provision here under consideration a reasonable one.”
In this connection they contend the resolution violates the fifth and fourteenth amendments of the Constitution of the United States.
The fifth amendment is really not involved. It is a limitation upon powers of the federal government but is not a limitation upon the powers of the states. (State, ex r.el., v. Kansas City, 125 Kan. 88, 262 Pac. 1032, and authorities cited therein.) It is the fourteenth amendment with the due process clause which is the basis for the claim of unconstitutionality.
Although zoning measures generally were upheld throughout the country it was 1926 before final judgment was rendered by the United States Supreme Court on the applicability of the federal constitution to zone legislation. In Euclid v. Ambler Co., 272 U. S. 365, 71 L. Ed. 303, 47 S. Ct. 114, 54 A. L. R. 1016, the constitutionality of a zoning ordinance was challenged on the grounds that it violated the fourteenth amendment and was unreasonable and confiscatory. The court upheld zoning legislation on the grounds that it was an exercise of the police power of the state designated to promote safety, health and public welfare.
In 1923 our court in Ware v. City of Wichita, supra, had sustained a zoning ordinance on the same grounds. Euclid v. Ambler Co., supra, was cited and followed in City of Norton v. Hutson, supra.
Another leading federal case was Hadacheck v. Los Angeles, 239 U. S. 394, 60 L. Ed. 348, 36 S. Ct. 143.
The constitutionality of zoning laws has long been a settled question as far as the fourteenth amendment is concerned.
The first zoning regulations throughout the country did not pro vide for the mandatory elimination of nonconforming uses. There was usually a restriction on expansion of nonconforming uses. The underlying theory was that these nonconforming uses would eventually disappear.
In recent years regulations providing for the amortization or gradual elimination of nonconforming uses have been passed in a number of cities and states and have been upheld by state and federal courts.
In 1929 two cases were decided by the Supreme Court of Louisiana involving the constitutionality of a provision requiring the elimination of existing nonconforming uses. In both cases the court had under consideration a zoning ordinance of the city of New Orleans which contained a provision that all businesses in operation within a certain area must be liquidated within one year from the passage of the ordinance. The court upheld the ordinance in both cases (State v. McDonald, 168 La. 172, 121 So. 613; State v. Jacoby, 168 La. 752, 123 So. 314).
An appeal was taken to the United States Supreme Court in the McDonald case and certiorari was denied (280 U. S. 556, 74 L. Ed. 612, 50 S. Ct. 16).
A leading case is City of Los Angeles v. Gage, 127 C. A. 2d 442, 274 P. 2d 34. There the zoning ordinance was changed and a provision adopted requiring certain nonconforming uses to be discontinued within five years. The court said:
“Amortization of nonconforming uses has been expressly authorized by recent amendments to zoning enabling laws in a number of states. Ordinances providing for amortization of nonconforming uses have been passed in a number of large cities. The length of time given the owner to eliminate his noncom-forming use or building varies with the city and with the type of structure, (p. 455.)
“. . . It was not and is not contemplated that pre-existing nonconforming uses are to be perpetual. (State ex rel. Miller v. Cain, 40 Wn. 2d 216 [242 P. 2d 505].) The presence of any noncomforming use endangers the benefits to be derived from a comprehensive zoning plan. Having the undoubted power to establish residential districts, the legislative body has the power to make such classification really effective by adopting such reasonable regulations as would be conducive to the welfare, health, and safety of those desiring to live in such district and enjoy the benefits thereof. There would be no object in creating a residential district unless there were to be secured to those dwelling therein the advantages which are ordinarily considered the benefits of such residence. It would seem to be the logical and reasonable method of approach to place a time limit upon the continuance of existing nonconforming uses, commensurate with the investment involved and based on the nature of the use; and in cases of nonconforming structures, on their character, age, and other relevant factors.
“Exercise of the police power frequently impairs rights in property because the exercise of those rights is detrimental to the public interest. Every zoning ordinance effects some impairment of vested rights either by restricting prospective uses or by prohibiting the continuation of existing uses, because it affects property already owned by individuals at the time of its enactment. (People v. Miller, 304 N. Y. 105 [106 N. E. 2d 34, 35].) In essence there is no distinction between requiring the discontinuance of a nonconforming use within a reasonable period and provisions which deny the right to add to or extend buildings devoted to an existing nonconforming use, which deny the right to resume a nonconforming use after a period of nonuse, which deny the right to extend or enlarge an existing nonconforming use, which deny the right to substitute new buildings for those devoted to an existing nonconforming use — all of which have been held to be valid exercises of the police power. . . .” (p. 459.)
See, also, Standard Oil Co. v. City of Tallahassee, 181 F. 2d 410. Certiorari denied (340 U. S. 892, 95 L. Ed. 647, 71 S. Ct. 208).
The cases are collected in a recent annotation, 42 A. L. R. 2d. 1146. 58 Am. Jur., Zoning, §148.
There is a lack of accord among state decisions on the power to gradually eliminate nonconforming uses. We believe the statute enacted in 1951, Section 19-2930, controls our direction in Kansas.
In an early case (City of Norton v. Hutson, supra) this court indicated its disapproval of the elimination of all nonconforming uses. The court said:
“On the point that the ordinance discriminates in favor of persons whose property was devoted to some legitimate use before the ordinance was adopted by permitting the continuation of such ‘nonconforming’ use, it must be noted that the statute back of the ordinance does that very thing. It reads: ‘Ordinances passed under authority of this act shall not apply to existing structures nor to the existing use of any building, . . .’ (R. S. 13-1103.)
“Such discrimination is necessary if city zoning is to be undertaken at all —unless all ‘nonconforming' structures and uses are to be banned from zones created for the benefit of conforming uses. Such an alternative would ordinarily be too drastic for legislative or judicial countenance, although it has been done in Los Angeles, according to Williams on ‘The Law of City Planning and Zoning,’page 201, . . .” (p. 307.) (Italics supplied.)
This case was decided in 1935. In 1939 the legislature provided for the gradual elimination of nonconforming uses in the county plan of zoning (Section 19-2919). In 1953 this provision was deleted from Section 19-2919 but was made a part of the new county zoning plan in Section 19-2930.
Early doubts such as those expressed in the Hutson case are unjustified when considered in the light of subsequent development of the law. The constitutionality of provisions such as Section 19-2930 as a proper exercise of the police power has been determined insofar as the fourteenth amendment is concerned.
No question is raised in this appeal as to whether or not the provision contravenes any section of the Kansas constitution.
The remaining question before us is the reasonableness of that part of the regulation which provided that the appellants’ business is to be eliminated within two years.
The authorities cited above are in point. The determination of reasonableness varies according to the facts and circumstances of the individual case. (Euclid v. Ambler Co., supra; Hadacheck v. Los Angeles, supra; State v. McDonald, supra; State v. Jacoby, supra; Standard Oil Co. v. City of Tallahassee, supra; and the annotation 42 A. L. R. 2d 1146.)
In the case at bar the district court found that “two years is a reasonable length of time within which to require a discontinuance of the prohibited uses mentioned in sub-section C of Section 10 of the Shawnee County Zoning Resolution considering the nature of the use, and the appellants’ investment in improvements devoted to those uses.” There is evidence sufficient to support this finding; We may not substitute our judicial judgment for that of the county on the two year period of limitation unless we find facts which demonstrate that the county departed from the realm of the reasonable and passed over into the realm of the arbitrary and capricious (Heckman v. City of Independence, supra). An examination of the record here does not show facts sufficient for that purpose.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
The question presented is whether the petition for a writ of habeas corpus states a cause of action entitling the petitioner to a discharge from the custody of her daughter, with whom she is living, and from the duly appointed guardian of her person and estate.
The record discloses the following: The petitioner, Cordelia E. Davis, was adjudged incompetent by a jury in the probate court of Nemaha County. She appealed from that judgment and on February 3, 1955, was again adjudged incompetent following a jury trial in the district court. Pursuant to that adjudication of incompetency, the probate court of Nemaha County appointed Harry A. Lanning, a member of the Bar of Seneca, guardian of petitioner’s person and estate, and he allowed her to live in the home of one of her daughters, Donna Van Donge, who resides in Jackson County, Kansas. The adjudication of incompetency and the appointment of the guardian have not been modified, set aside or reversed and are in full force and effect.
On March 7, 1956, two members of the Bar filed a petition in the district court of Jackson County, Kansas, for habeas corpus on behalf of the petitioner in which they named as respondents the daughter, Donna Van Donge, and the guardian, Harry A. Lanning. The petition, omitting the caption, prayer and their relationship to petitioner, alleged:
“Petitioners allege that Harry Lanning is the duly appointed, qualified and acting guardian of the person and estate of the said Cordelia E. Davis and Donna Van Donge is the daughter of the said Cordelia E. Davis and in conjunction with the said Harry Lanning are holding Cordelia E. Davis in the custody of her daughter aforesaid by virtue of the alleged authority of the said Harry Lanning in being the guardian of her person; that she is restrained of her liberty by her said daughter on her farm in Jackson County.
“That the illegality of said imprisonment is the claim by the said Harry Lanning and petitioner’s said daughter, Donna Van Donge, that petitioner is incompetent and, therefore, should be under the protection, guidance and control of the said Harry Lanning and her said daughter.
“That said confinement and imprisonment is illegal because the said Cordelia E. Davis has recovered the full use of her mental faculties and is in truth and in fact no longer an incompetent or deranged person and is completely cápable of managing her own affairs and her own property without help or assistance of anyone.”
The prayer was that a writ of habeas corpus issue to the respondents directing them to produce the body of the petitioner in the district court on March 21, 1956, and to abide the order and judgment of that court. Thereafter the district court issued an order to the respondents to appear with the body of the petitioner on March 21, 1956.
On March 7, 1956, Harry A. Lanning, personally and as guardian of the person and estate of the petitioner, and Donna Van Donge filed a demurrer to the petition on the grounds that it did not state facts sufficient to constitute a cause of action against the respond ents; that it did not state facts sufficient to show petitioner’s right to a writ of habeas corpus; and, that the district court of Jackson County, Kansas, did not have jurisdiction to hear and determine the petition. On that same day, the respondents also filed a motion to quash the order to appear in which they alleged that G. S. 1949, 59-2268 provides for an orderly hearing and remedy in the probate court in which the petitioner was adjudged incompetent; that such remedy is exclusive and precludes a resort to habeas corpus; that the petition does not show any pursuance of that remedy or any legal reason for not pursuing the same; and, that petitioner has an adequate remedy other than habeas corpus. No evidence was introduced at the hearing before the district court, and the petitioner appeals from the order of that court sustaining the demurrer and the motion to quash the order to appear.
In considering the sufficiency of the allegations of the petition to state a cause of action of illegal restraint on behalf of the petitioner we adhere to the rule that as against a demurrer, a petition will be liberally construed and well-pleaded facts are assumed to be true and the question is whether the facts, with all reasonable inferences to be drawn therefrom, constitute a cause of action. (Walton v. Noel Co., 167 Kan. 274, 277, 205 P. 2d 928; 4 Hatcher’s Kansas Digest [Rev. ed.], Pleading, §§ 35, 37, pp. 425, 426; 8 West’s Kansas Digest, Pleading, § 34.) Measured by this rule, does the petition for writ of habeas corpus state a cause of action of illegal restraint on behalf of the petitioner? We think it does not. Our statute, G. S. 1949, 60-2213, reads in part:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following:”
“Second. Upon any process issued on and final judgment of a court of competent jurisdiction.”
Petitioner states in her abstract, and the allegations of her petition confirm the admission, that she was adjudged incompetent pursuant to a final judgment rendered in the probate court of Nemaha County and that Harry A. Lanning was the duly appointed, qualified and acting guardian of her person and estate. Although the petitioner alleges she has recovered the full use of her mental faculties and is no longer an incompetent or deranged person and is capable of managing her own affairs and property, she does not allege she has been restored to capacity as provided by G. S. 1949, 59-2268 and thereafter illegally restrained, or that the court which adjudged her incompetent lacked jurisdiction to do so, or that the proceedings leading up to such adjudication were void. Allegations of this character are indispensable to alleging a cause of action in habeas corpus under the facts and conditions presented by this record.
The power of probate courts to deal with adjudication, care, custody and restoration of incompetent persons stems from the constitution of Kansas. Art. 3, § 8, of that document reads in part:
“There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law. . . .” (Emphasis supplied.)
To carry out this mandate, the legislature enacted the Kansas Probate Code. (G. S. 1949, ch. 59.) G. S. 1949, 59-301 reads in part:
“The probate courts shall be courts of record, and, within their respective counties, shall have original jurisdiction:”
“(6) To appoint and remove guardians for minors and incompetent persons, to make all necessary orders relating to their estates, to direct and control the official acts of such guardians, and to settle their accounts.”
“(10) To hold' inquests respecting insane persons, and to commit insane persons to hospitals for the insane, or elsewhere, for their care and treatment.
“(11) Such other jurisdiction as may be given them by statutes pertaining to particular subjects.”
Further dealing with persons adjudged to be incompetent, the legislature made provision for their restoration to capacity. G. S. 1949, 59-2268 reads in part:
“Any person who has been adjudged insane or incompetent as herein provided, or his guardian, or any other person interested in him or his estate may petition the court in which he was so adjudicated or to which the venue has been transferred to be restored to capacity: . . . Upon hearing of the petition and proof that such person has been restored to capacity and is capable of managing his person and estate, the court shall adjudge him restored to capacity. If the venue has been transferred no proceedings need be had in the court from which the venue was transferred.”
A proceeding for restoration to capacity is judicial in character, and we think the legislature intended the remedy provided to be exclusive. That the legislature may prescribe the manner in which an insane or incompetent person may be discharged from custody has previously been sustained by this court (In re Clark, 86 Kan. 539, 121 Pac. 492; In re Beebe, 92 Kan. 1026, 142 Pac. 269; The State v. Linderholm, 95 Kan. 669, 149 Pac. 427; Johnson v. Gustafson, 96 Kan. 630, 152 Pac. 621; In re Ostatter, Petitioner, 103 Kan. 487, 175 Pac. 377). Furthermore, the judiciary may not interfere with the legislative conscience unless there is a clear violation of some provision of the constitution (Hunt v. Eddy, 150 Kan. 1, 90 P. 2d 747; Marks v. Frantz, 179 Kan. 638; 298 P. 2d 316), and, as we have previously observed, that document vests in probate courts jurisdiction and care of persons of unsound mind as may be prescribed bylaw (Art. 3, § 8).
There was requisite authority in the probate court which adjudged petitioner to be incompetent; there was essential inquiry and finding that she was incompetent, and, having been adjudged incompetent, this finding is presumed to continue until it is shown that her competency has been restored (Johnson v. Gustafson, supra). G. S. 1949, 59-2268 affords her or anyone interested in her, and particularly the members of the Bar who instituted this proceeding, an opportunity to directly apply to the probate court of Nemaha County for her discharge from the judgment of incompetency and from the order appointing the guardian on the ground that her capacity has been restored and that she is no longer incompetent. However, not having availed herself of this remedy, she is not entitled to be discharged in habeas corpus.
This court has held that a proceeding in habeas corpus brought to procure the release of a defendant following conviction in a criminal case is a collateral attack upon the judgment, and in order to successfully set aside a judgment on collateral attack the judgment must be void (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; Trugillo v. Edmundson, 176 Kan. 195, 270 P. 2d 219). There were no allegations or claim that the judgment oí incompetency, or that the order appointing the guardian, were void. The present action is a collateral attack upon the judgment of incompetency, which has not been modified, reversed or set aside, and under the allegations of the petition, this collateral attack cannot be maintained. An indispensable element of petitioner’s cause of action was omitted from her petition by her failure to allege her restoration to capacity by the probate court in which she was adjudged to be incompetent pursuant to G. S. 1949, 59-2268, or that the court which adjudged her incompetent lacked jurisdiction to do so, or that the proceedings leading up to such adjudication were void, and, necessarily, the demurrer and the motion to quash the order to appear were properly sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This case stems from a decision of the Board of County Commissioners of Johnson County, Kansas, creating a road benefit district under the provisions of G. S. 1955 Supp., 68-731 (Chapter 302, Laws of 1955, Section 1). Pursuant to the provisions of G. S. 1949, 19-223, Alfred F. Parmelee appealed from such decision to the district court of the same county. There the cause was tried upon an agreed stipulation of facts and ultimately the district court in a general judgment upheld the decision of the Board of County Commissioners. This appeal followed.
Appellant’s brief contains a factual statement which appellees concede is adequate to cover the facts of the case. We note it also serves the dual purpose of disclosing the issues presented in the court below. On that account such statement, except for its first and last paragraphs referring to the statute in question and to other matters repetitious of what has been heretofore stated, will be quoted at length. It reads:
“83rd Street in Mission Township in Johnson County, the street proposed to be improved, is an arterial traffic route extending from State Line road for about 3.75 miles to Robinson, serving as the principal east-west artery for the area extending from approximately 81st Street to 87th Street and from State Line Road to Robinson. The proposed Benefit Distict here involved applied to a segment of this street extending from Lamar Avenue to a point one-fourth mile east of Lamar Avenue. The eastern limit of the portion proposed to be improved was apparently established at that point only because it was the eastern limit of platted land on the north side of 83rd Street, the land to the east being unplatted. The termination at that point had no reference to any natural or traffic feature of said street.
“At the hearing before the Board of County Commissioners on the petition for the improvement, the representative of the petitioners explained that it was planned to improve the quarter-mile covered by that petition under Section 68-731, and to improve the rest of 83rd Street from a point 940 feet west of Nall Avenue to a point one-fourth mile east of Mission Road by a proceeding under Section 68-728, G. S. of Kansas, 1949, as amended, if sufficient petitioners could be secured and if approved by the Board of County Commissioners, but that if the land adjacent to the 380 foot segment of road between the proposed Benefit District under Section 68-731 and the proposed Benefit District under Section 68-728 were included in the latter benefit district, there would not be sufficient petitioners in favor of the project to meet the requirements of the statute. On May 21, 1956, the day on which the petition was presented, the Board of County Commissioners entered its order and resolution finding that the jurisdictional requirements of Section 68-731 were met, ordering that the road be improved as prayed, creating a benefit district to be designated as Special Benefit District No. 152, and authorizing further proceedings looking toward the carrying out of said improvement.
“Appellant is the owner of a tract of land abutting 83rd Street on the south, 328.14 feet of which is included in the proposed benefit district. On June 15, 1956, appellant filed a protest against the proposed improvement with the Board of County Commissioners, and thereafter on June 18, 1956, he filed his notice of appeal from the aforesaid order and resolution of the Board in compliance with requirements of Section 19-223, G. S. of Kansas, 1949, appealing from all judicial matters and findings upon which the order and resolution was based. This notice of appeal alleged (1) tire unconstitutionality of Section 68-731, as amended; (2) urged that Section 68-731, as amended, was not applicable for the reason that not all of the land on one side of the street, road or avenue sought to be improved, was platted or laid off in lots or blocks; and (3) urged that the petition did not cover the entire road to be improved but covered only a portion of same, and alleged that the project had been illegally divided into smaller segments in order to carry out piecemeal an improvement for which the requisite petitioners could not have been obtained if the proposed improvement had been presented in its entirety.
“Thereafter, pursuant to said appeal, appellant filed a petition setting forth substantially the same points that were raised in the notice of appeal.”
With salient facts and issues outlined it becomes apparent the basic statute on which the rights of the parties must stand or fall is G. S. 1955 Supp., 68-731 (Chapter 302, Laws of 1955, Section 1) which, so far as here pertinent, reads:
“In any township having a population of more than six thousand (6,000) outside of the limits of any incorporated city or town within such township, and being within any county having a population of more than twenty-five thousand (25,000) and less than two hundred thousand (200,000), where all of the land on one side of the street, road or avenue, including any adjoining or connecting street, road or avenue sought to be improved is platted or laid off in lots and blocks, then when the owners of not less than fifty percent (50%) of the frontage of land on the street, road or avenue, including any adjoining or connecting street, road or avenue present a petition to them therefor, the board of county commissioners shall have the power to provide for the construction or reconstruction of the curbing, guttering, paving, macadamizing or grading, including drainage, of any public road outside of the limits of any incorporated city whenever it shall deem the same necessary. . . .”
In passing it may be stated that the legislative enactment, of which 68-731, supra, is a part, is titled “An Act relating to roads and bridges and the improvement of roads in benefit district in certain townships, ...”
Conceding the propriety of the population classification as to townships affected by the foregoing statute the first, and we may add the principal, contention advanced by appeallant in this case is that the population limitations of such Act as to counties affected by its terms are so limited as to constitute special legislation prohibited by Article 2, Section 17 of the constitution, which reads:
“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.”
In support of his position on the point now under consideration appellant first directs our attention to previous legislative enactment (See Laws of 1931, Ch. 250, Sec. 1; Laws of 1945, Ch. 270, Sec. 1; Laws of 1949, Ch. 347, Sec. 1; Laws of 1951, Ch. 388, Sec. 1; Laws of 1953, Ch. 305, Sec. 1.), of like import except for county population classifications, and in a general way contends that the present statute (68-731) has application only to Johnson County and therefore violates the heretofore quoted section of our constitution. Since our province is to pass upon the validity of such statute as now in force and effect it is neither necessary nor required that we here labor the possibilities of what the legislature may have intended by prior legislation dealing with the same subject. When the present provisions of such statute are considered in their entirety they must be construed as having application to all townships having a population of more than 6,000 outside the limits of any incorporated city or town within such township when located in any county having a population of more than 25,000 and less than 200,000. Thus it becomes obvious that when construed in the light of its clear and unequivocal terms such statute is general in form, as well as application, and any contention it is special because it is limited to Johnson County only lacks merit and cannot be upheld.
Next, appellant directs attention to decisions holding that a law, to be regarded as general, must embrace all and exclude none whose conditions and wants render such legislation equally necessary or appropriate to them as a class; likewise that 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. Then, basing his position on such decisions, he contends that by reason of the limitations therein contained, especially that excluding from its operation townships in counties of over 200,000 population, the involved statute (68-731) is a special law in a situation where a general law could have been made applicable and is therefore in violation of the heretofore quoted provision of our constitution.
Notwithstanding the general rule on which appellant relies our decisions do not hold, as he contends, that where — as here — the legislature is concerned with road and/or street problems in townships having a population of more than 6,000 outside the limits of any incorporated city or town within such township, a statute which, by a population classification such as is here questioned, excludes some townships of the state from its operation is not to be regarded as a law of a general nature having uniform operation throughout the state, within the meaning of that term as used in Article 2, Section 17 of the constitution; nor does it necessarily follow that such a statute is a special law in a situation where a general law could have been made applicable.
For just a few of the numerous decisions supporting the conclusion just announced, where many others of like import are cited, see:
Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071, where, inter alia, it is held:
“In determining whether a law enacted by the legislature contravenes the provisions of section 17 of article 2 of the state constitution that all laws of a general nature shall have a uniform operation throughout the state, and in all cases where a general law can be made applicable, no special law shall be enacted, the following tests are to be applied:
“(a) 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.
“(b) If a law applying to a specified classification of cities or governmental units is otherwise general in its form and its provisions are such that in the ordinary course of things the law might and probably would apply to other cities or governmental units coming within the specified classification, the law is a general and not a special law.” (Syl. ¶ 1.)
Johnson County Comm'rs v. Robb, 161 Kan. 683, 687, 171 P. 2d 784, which cites the Barker case and quotes at length the rule therein announced.
Board of County Comm'rs v. Robb, 166 Kan. 122, 199 P. 2d 530, which holds:
“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.)
Redevelopment Authority of the City of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P. 2d 782, where it is held:
“For an act passed by the legislature to have uniform operation throughout the state as required by article II, section 17, of the state constitution, it need not affect every individual, class or community, but it is competent for the legislature to classify and adopt a daw general in its nature to the class created.
“The classification so made must be a natural and not an arbitrary, fictitious or capricious one.” (Syl. ¶¶[ 1, 2.)
State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 436, 437, 296 P. 2d 656, in which, with direct reference to 171 Kan. 581, supra, it is said:
“In the first mentioned case it was held that for an act passed by the legislature to have uniform operation throughout the state, as required by the mentioned provision of the constitution, it need not affect every individual, class or community; that it is competent for the legislature to classify and adopt a law general in its nature to the class created, provided tire classification so made be a natural one and not arbitrary, fictitious or capricious, and that ordinarily a classification based upon population is sufficient to satisfy the constitutional requirement provided it is based upon distinctions which have a reasonable and substantial relation to the subject matter of the act.”
State, ex rel., v. Allen County Comm'rs, 156 Kan. 248, 252, 253, 133 P. 2d 165, where it is said:
“It is true the legislature has power to enact laws of a general nature which will be applicable only to a certain portion of the state, to a community or to a certain class of citizens. In other words, the legislature has power to pass laws which apply to and operate uniformly on all members of the class created, but the classification created must be a natural one and must rest upon a genuine and substantial basis. The classification cannot be an arbitrary or fictitious one but must be based upon real and substantial distinctions which have a reasonable and substantial relation to the subject matter involved. These principles frequently have been applied to legislation embracing various and sundry subjects, (citing cases.)”
See, also, the following comparatively recent cases wherein the rules announced and applied in the foregoing decisions are restated and approved: McDonald v. Joint Rural High School District No. 9, 180 Kan. 563, 565, 566, 306 P. 2d 175; State, ex rel., v. Board of County Commissioners, 180 Kan. 168, 173, 174, 302 P. 2d 542; Common School District No. 6 v. Robb, 179 Kan. 162, 293 P. 2d 230; State, ex rel., v. City of Topeka, 168 Kan. 663, 665, 215 P. 2d 644.
From the above cited decisions it is clear that if the provisions of the statute in question (68-731) create a classification that is not arbitrary and capricious such enactment is valid and does not contravene Article 2, Section 17 of the constitution. Thus, we are confronted with a problem which must be determined in the light of the long established rules of this jurisdiction governing judicial examination of any law enacted by the legislature when its constitutionality is attacked on the basis of legislative classification.
It may be stated this court has always approached consideration of questions challenging the constitutionality of statutes with the disposition to determine them in such manner as to sustain the validity of the enactment in question.
In the very first published report of this court in State of Kansas ex rel. Crawford v. Robinson and others, 1 Kan. 17, 18, we held:
“A statute will not be declared unconstitutional, unless its infringement of the superior law is clear, beyond substantial doubt. . . .”
See Leavenworth Co. v. Miller, 7 Kan. (2nd Ed.) 479, 480, which holds:
“All presumptions are in favor of the constitutional validity of a statute; and before the courts can declare it invalid, it must clearly appear to be unconstitutional.” (Syl. It 8.)
Later in Glenn v. Callahan, 125 Kan. 44, 47, 262 Pac. 583, we quoted and reapproved tire rule announced in 1 Kan. 17.
Still later in Barker v. Kansas City, 149 Kan. 696, 698, 88 P. 2d 1071, we quoted and reaffirmed the rule announced in 7 Kan. (2nd Ed.) 479, 480, Syl. ¶ 8.
Subsequently in Board of County Comm'rs v. Robb, 166 Kan. 122, 199 P. 2d 530, we said:
“. . . Intervenors and the auditor contend the classification is arbitrary and unreasonable. In Borden's Co. v. Baldwin, 293 U. S. 194, 209 L. Ed. 281, 55 S. Ct. 187, the supreme court, in an opinion by Hughes, C. J., said:
“ ‘When the classification by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. Lindsley v. Natural Carbonic Gas Co., supra; Clarke v. Deckebach, 274 U. S. 392, 397; Lawrence v. State Tax Comm’n, 286 U. S. 276, 283,’ (p. 209)” (pp. 132, 133.)
For a similar statement and citation of authorities in its support see the recent case of Common School District No. 6 v. Robb, 179 Kan. 162, 166, 293 P. 2d 230.
And for our last pronouncement on the same subject see State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 296 P. 2d 656, where it is held:
“Judicial examination of any law enacted by the legislature proceeds on the assumption that it is valid unless it contravenes an express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument, and an act of the legislature is not to be stricken down on the ground it is unconstitutional unless infringement of the superior law is clear beyond reasonable doubt.” (Syl. HI.)
When viewed in the light of the rules laid down by the foregoing decisions we are forced to conclude the classification made by the provisions of the challenged statute (68-731) is based upon an apparently natural reason and is warranted by a real, not fictitious, difference in the condition or situation of the particular class of townships to which it applies, hence it is neither an arbitrary, il lusory nor a capricious classification which excludes other townships to which it would naturally apply except for its limitations. Moreover, we are inclined to the view such statute creates a classification which rests upon a genuine and substantial basis and, of a certainty, are convinced that under the facts, conditions and circumstances presented to the lower court on the trial of the case the appellant failed to carry the burden of showing, as our decisions require (See, e.g., Board of County Comm'rs v. Robb, supra; Common School District No. 6 v. Robb, supra.), that legislative action with respect thereto was either arbitrary or capricious. It follows appellant’s contentions respecting the invalidity of such statute cannot be upheld.
In reaching the conclusion we have not ignored but carefully considered the seven cases cited by appellant on which he relies to sustain his position the statute (68-731) is unconstitutional. They, it may be added, are:
1. Panhandle Eastern Pipe Line Co. v. Miami County Comm’rs, 151 Kan. 533, 537, 99 P. 2d 828.
2. Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P. 2d 53.
3. Redevelopment Authority of the City of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P. 2d 782.
4. Missouri Pacific Rld. Co. v. Board of County Comm’rs, 172 Kan. 80, 238 P. 2d 462.
5. State, ex rel., v. Board of County Comm’rs, 173 Kan. 367, 245 P. 2d 1181.
6. State, ex rel., v. Redevelopment Authority of Kansas City, 176 Kan. 145, 149, 269 P. 2d 484.
7. State, ex rel., v. Tucker, 176 Kan. 192, 269 P. 2d 447.
Nothing would be gained by detailing the distinguishing features of the foregoing decisions. It suffices to say, in a general way, that an extended examination of the opinion in each of such decisions discloses that the statutes there under consideration contained far narrower and more restricted classification limitations than those here involved and that, for that reason, we regard all such decisions as clearly distinguishable and of little, if any, value as controlling precedents in the case at bar. Indeed it may be stated that in the decisions herein above denominated 1, 3, 6 and 7 the limitations fixed by the statutes involved are applicable to one county or city only, while in those listed as 2, 3 and 4 the limitations fixed are applicable to as few as two and in no case more than three counties or cities.
Another question raised by appellant is that the trial court erred in holding that the portion of 83rd Street, sought to be improved by the road benefit district in question, comes within the meaning of the terms “street, road and avenue,” as used in G. S. 1955 Supp. 68-731. In arguing this point the first statement made in appellant’s brief is that “the legislature did not intend the law to be applied except in situations where all tihe land on one side of the street was platted.” Since the conceded facts disclose that 83rd Street in Mission Township is a township road from State Street Line Road on the east from 3.75 miles to Robinson Avenue on the west, the practical result of upholding this argument would mean that the entire 3.75 miles of 83rd Street, on one side thereof, would have to be platted before the commissioners would be warranted in creating a benefit district contemplated by the Act. Obviously, sensing that the statute contemplates no such impractical result, appellant does not press the point as stated but insists such statute must be construed as requiring that boundaries of benefit districts, created under its terms, must commence and terminate at intersecting streets. We have carefully examined the statute and find nothing warranting any such construction. Therefore, since it is conceded that all of the land on one side of the portion of the street sought to be improved was platted and laid off in blocks or lots, appellant’s claim of error on the point now under consideration cannot be upheld.
Another claim of error made by appellant has been given consideration. We find nothing in it or in the arguments advanced in its support which requires discussion or warrants a reversal of the judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case. The question involved is whether, under the facts and circumstances shown, injury resulting from a heatstroke is compensable. The commissioner and trial court held that it is, and the employer and its insurance carrier have appealed.
Claimant had lived in Independence all of his life. In the summer of 1953 he joined the army and served in various localities until May, 1955, at which time he received his discharge in Texas. He sought employment in Houston, and about the middle of July of that year returned to Independence. He was 22 years of age.
On August 1st, 1955, he went to work for the Tole Landscape Company of Independence. This company was engaged in the business of landscaping, trimming trees, taking care of yards and shrubs, and the like. On the morning of August 1st claimant, in company with other employees, drove to the nearby town of Humboldt to do some tree trimming and yard work at a residence there. The maximum temperature in Humboldt that day was 98 degrees. During the day claimant and his fellow workers trimmed trees, cleaned up debris, and did other work of like nature. Claimant complained of not feeling well and did not eat his lunch. During the day he and others drank cold water from a five-gallon can which they had brought along. Claimant advised the foreman that if he did not feel better the next morning he probably would not return to work.
On the next day, August 2nd, claimant and other employees worked on a job in Independence, trimming trees and cleaning up the yard. Part of the time claimant was up in the trees sawing off limbs, and the remainder of the time he was on the ground cleaning and raking. It was another hot day, the maximum temperature being 98 degrees. Some of the work was in the direct sunlight and some was in the shade. Claimant, like the other employees, drank from a water cooler and from a house hydrant during the day. He took a salt tablet approximately every hour. The work they were doing was “hot and hard.” Claimant did not complain of feeling ill and ate his lunch. At quitting time, about 4:30 in the afternoon, he was driven to his home by a fellow employee, and apparently nothing was wrong with him. He went into his house and a short time later was found unconscious in the kitchen.
A local physician was called and claimant was removed to a hospital. His temperature was in excess of 108 degrees. He remained in the hospital at Independence for about two weeks and then was removed to the Veterans Hospital in Wichita where he remained for a considerable period of time, suffering from permanent nerve and brain damage resulting in partial paralysis. His condition was diagnosed by both the Independence and Wichita physicians as being the result of “heatstroke.”
The record contains considerable evidence as to the seriousness of claimant’s disability, but for our purposes need not be discussed in detail. He testified that he must have become unconscious while on the job on the day in question; that he did not remember being driven home and remembered nothing from about the middle of that afternoon until he “awakened” in the hospital several days later. August 2nd, while extremely hot, was no hotter than it had been in Independence and in that area for about a month previous thereto. In other words, there really was nothing particularly “unusual” about the temperature on the day in question. It was just plain “good and hot,” a condition with which all living in the area during that time of year were familiar.
The trial court found that claimant suffered an accidental injury arising out of and in the course of his employment, and that the heatstroke and injury suffered by him were brought about by the work he was doing under the circumstances shown by the evidence — that is, the extreme temperature coupled with the fact he was not accustomed to hard manual labor under such conditions.
The employer and its insurance carrier contend the court erred in finding that claimant sustained personal injury by accident arising out of and in the course of his employment; that the findings are not supported by the evidence and are contrary thereto; that the judgment entered is not supported by substantial competent evidence, and that claimant is not entitled to compensation.
In our opinion the basic question in the case really narrows down to whether it may be said claimant sustained personal injury by accident arising out of his employment.
Although many compensation cases dealing with injuries resulting from exposure to the elements, such as heat or cold (both artificial and natural), lightning, storms, and the like, are cited, we know of no case precisely parallel to the one before us. Both parties cite the case of Murphy v. I. C. U. Const. Co., 158 Kan. 541, 148 P. 2d 771, in which injury resulting from frostbite of the fingers was held to be compensable. In the course of the opinion the court quoted with approval from the annotation appearing at 13 A. L. R. 974 to the effect that if an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements — that is, one greater than other persons in the community — and an unexpected injury is sustained by reason of the elements, the injury constitutes an accident arising out of and in the course of the employment. Reference also was made to six other annotations on the subject appearing in subsequent volumes of A. L. R. At page 979 of the mentioned annotation in 13 A. L. R. appear the statements that whether injuries caused by the weather and climatic conditions arise out of the employment is a question upon which the decisions of courts are not entirely harmonious, but that injury from heatstroke or sunstroke is generally considered to be an injury by accident.
In 58 Am. Jur., Workmen s Compensation, § 260, p. 760, it is said:
“Injuries resulting from exposure to meteorological or weather conditions are generally classed as risks to which the general public is exposed, and as not coming within the purview of workmen’s compensation acts, where the employment involves no special or peculiar risk of injury from such cause. It is generally recognize, however, that if an employee, by reason of his duties, is exposed to a special or peculiar danger from the elements — that is, one greater than other persons in the community — an injury proximately resulting from such cause, within the sphere of the employment, arises out of the employment, within the meaning and operation of the compensation acts. The foregoing rules have been applied in the case of injuries resulting from freezing or frostbite, sunstroke or heat prostration, . . .”
In the recent case of Watson v. Sam Knight Mining Lease, 78 Ariz. 114, 276 P. 2d 536, it was held that injury from heat exhaustion is compensable where the employee, because of the conditions of the employment, is subjected to a risk beyond the risk to which the general public is exposed, from climatic conditions in the locality.
In Hoag v. Laundry Co., 113 Kan. 513, 515, 215 Pac. 295, appears this statement:
“It is now generally recognized that what is known as heat stroke is an accident, within the meaning of compensation laws, and frostbite has been placed in the same category.”
In Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542, it was said that when the injury occurs from the elements the better reasoning is that there is no liability unless the employment in some specific way reasonably can be said to have increased the workman s hazard to such element.
It has been held many times that the compensation act prescribes no standard of health for a workman, and if his physical structure gives way under the stress of his usual labor his death is an accident which arises out of his employment. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197.)
From the foregoing, and other authorities dealing with injuries resulting from exposure to the elements, such as in this case— natural heat — the general rule appears to be that the injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person, familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. It excludes, however, an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed apart from the employment. In other words, the causative danger must be peculiar to the work and not common to the neighborhood — that is, the employment must bring with it greater exposure to injurious results than the exposure to which persons generally in the locality are subjected.
It is vigorously contended that because it was hot in Independence and the surrounding area on the day in question, and had been as hot or hotter in the area during the preceding month, claimant was exposed to nothing unusual and to no greater hazard than were all other residents of the community, and that his injury therefore cannot be said to have arisen out of his employment.
We are unable to accept this view.
As a practical matter, of course it was hot in Independence that day, and undoubtedly everyone in the community “felt the heat.” Nevertheless, the medical evidence in the record is to the effect claimant’s injury was due to heatstroke, and that undoubtedly there was a direct connection between it and the work he was doing under the circumstances and conditions related. Under this record it cannot be denied that claimant’s work exposed him to a greater danger than if he had not been working at all. In other words, his employment subjected him to a greater hazard or risk than that to which he otherwise would have been exposed, and although the risk was common to all who were exposed to the heat on the day in question, the true test in a case such as this is whether the employment exposed the employee to the risk. We have no difficulty in agreeing with the trial court that it did, and that there was a direct causal connection between the work and the injury.
The findings and judgment of the trial court are amply supported by the record and, no error being made to appear, the judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an action for slander wherein a motion by defendant for judgment on the pleadings and opening statement made by counsel for plaintiff was sustained and judgment entered for defendant for costs. Plaintiff appeals from the ruling and judgment.
We shall continue to refer to the parties as plaintiff and defendant.
Defendant wrote a letter to the state superintendent of public instruction charging that a group of people who were fighting school district No. 136 in McPherson county had been “fighting practically all thru life.” They had “fought with might and main” to stay out of another school district. They had “fought with all their might against a new building” and had been “against every progressive move that this community has endeavored to make, be it Church, School or what have you.” The contents of this letter were made a part of the petition which also showed that a copy had found its way into a meeting called at the Eden Mennonite Church, Mound-ridge, Kansas, under plaintiff’s theory, to settle differences between plaintiff and defendant. The petition charged defendant at the meeting, concerning his writing of the letter, said, “I would apologize to you but I won’t because what I said in the letter is true.”
Before we can reach the merits of this appeal we must first consider a motion to dismiss filed on March 6, 1957, which is urged by defendant’s counsel. In support of the motion defendant shows in the record that after the judgment of November 13, 1956, for defendant for costs, the plaintiff filed a motion on November 16, 1956, to vacate the order of the court entering judgment for costs. On December 27, 1956, the clerk of the district court mailed a statement of the costs in the sum of $67.70 to plaintiff who on December 29,1956, paid the costs and obtained a receipt. On January 8, 1957, the trial court overruled the motion to set aside its judgment and on January 11, 1957, plaintiff filed his notice of appeal to this court from the adverse rulings of the trial court.
In opposition to defendant’s motion to dismiss plaintiff on March 14, 1957, filed an answer in this court showing that on February 8, 1957,' the trial court conducted a hearing with both parties represented and concluded that a mistake had been made which should be corrected in the interest of justice, ordered the costs to be returned to plaintiff and expressly found there had been no acquiescence by plaintiff in the judgment for costs or anything in this lawsuit whatever. In support of his answer plaintiff refers in his brief to the following statutes: . ,
G. S. 1949, 60-3813 governing the exercise of powers and the performance of duties by the clerk of each of the courts;
G. S. 1949, 60-3320 having to do with the presentation to the court of a mistake, neglect, or omission of its clerk before consideration thereof by an appellate court; and
G. S. 1949, 60-3010 governing proceedings to correct mistakes or omissions of the clerk, or irregularities in obtaining a judgment or order.
The general rule is that a party must receive some benefits from a judgment which he takes or -accepts before he is presumed to have waived his right to appeal or complain of error, but in Kansas the general rule as to receiving benefits is not followed. (For discussion on this subject, see 4 C. J. S., Appeal and Error, § '214, p. 414; 2 Am. Jur., Appeal and Error, § 214, pp. 975-977.) This court has always strictly adhered to a rule which is thought by many to be a very harsh one. Either mistake or ignorance has been advocated before where parties were held to have acquiesced in a judgment and thereby foreclosed themselves to the right of appeal. In Bank v. Bracey, 112 Kan. 677, 212 Pac. 675, a bank had brought an action to recover on a note. Upon trial of the matter, judgment was entered against the bank for costs and after an appeal was taken the clerk of the district court had sent a statement for costs to the bank and the cashier and active manager of the bank, without knowledge on the part of the board of directors, had paid the costs. The cashier pleaded ignorance of the consequence of his conduct and the board of directors declared it had no intention of abandoning the appeal, but the court said,
“In no case in which an appeal has been dismissed was it the intention of the party recognizing validity of the judgment to prejudice his appeal, and in several instances the intention not to prejudice the appeal was expressly declared.” (p. 679.)
The appeal in the Bank case was dismissed and the rule traditionally adhered to in this state was re-stated therein, as follows:
“The defendant, having voluntarily complied with the judgment so far as it is adverse to him, and having paid the money into court for the use of the plaintiff, is in no position to insist on errors in its rendition.” (p. 678.)
We said in Newsome v. Anderson, 164 Kan. 132, 187 P. 2d 495, that,
and this rule has been reiterated all through our Kansas reports. See Hawkins v. Wilson, 174 Kan. 602, 604, 257 P. 2d 1110, and Rose v. Helstrom, 177 Kan. 209, 212, 277 P. 2d 633.
“Whatever the rule may be elsewhere it is well settled law in this jurisdiction that whatever savors of acquiescence in a judgment cuts off the right of appellate review, and that payment of costs by a defeated party falls in that category . . ., (p. 136)
Two plaintiffs were involved in the case of Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259, and it was there held the payment of costs by one of them cut off the right of appeal by either. The Paulsen case sets out in substance that it is so very easy in Kansas to procure a stay of execution, supersedeas, or the like, to halt an execution that the attitude of some that our Kansas rule is a harsh one should be put at rest.
Here, as in the Paulsen case, no execution was issued to create a pending levy on plaintiffs property so that it must follow here, as there, that plaintiff’s payment of the costs was voluntary and not involuntary.
We do not wish to overlook plaintiffs answer to defendant’s motion to dismiss the appeal but the question involved is jurisdictional as to whether this court can consider the appeal and is one for decision here. There can be no quarrel with the power of a district court to control the acts of its clerk, under the statutes cited, but when the question affects our jurisdiction, we must decide it.
In view of our many decisions following the stated rule, we have no alternative but to dismiss the appeal. It is so ordered.
Schroeder, J., not participating.
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for personal injuries sustained by plaintiff (appellant) while riding as a passenger in a pick-up truck involved in a three-car collision on a four-lane highway. From an order of the trial court sustaining defendants’ (appellees’) separate demurrers to plaintiff’s evidence on the ground it failed to show any negligence on the part of either defendant, she appeals to this court.
Inasmuch as the only question for this court’s determination is whether plaintiff’s evidence was sufficient to make out a prima facie case of negligence against defendants or either of them, it will not be necessary to narrate the pleadings.
All parties are in accord with the elementary rule of law that the, trial court in ruling upon a demurrer to plaintiff’s evidence must examine the testimony in its most favorable light, giving it the benefit of all inferences, that it shall consider plaintiff’s evi dence as true, shall consider that favorable to her and disregard that which is unfavorable, shall not weigh any part that is contradictory or any differences between direct or cross examination, and if so considered there is any evidence which sustains plaintiff’s case, the demurrer must be overruled. The question of negligence, including determination of proximate cause, ordinarily rests in the province of the jury. It is also a well-established rule in this state in determining whether plaintiff -is guilty of contributory negligence when tested by demurrer the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon. The numerous citations supporting the mentioned rules of law are found in West’s Kansas Digest, Negligence, § 136, (9), (10), (25), (26), Appeal and Error, §927 ( 5), Trial, §156 (2), (3); 4 Hatcher’s Kansas Digest [Rev. Ed.], Negligence, §§ 74 and 75.
Plaintiff’s evidence in support of the allegations contained in the petition are briefly summarized herein.
The map or' drawing admitted in evidence discloses that U. S. Highway 81 running north from Wichita to Newton is a four-lane trafficway. The northbound lanes are concrete, twenty-four feet in width; the southbound, blacktop, twenty-two feet in width. There is a four-foot safety strip or divider, planted to grass, separating the north and southbound trafficways.
On September 19, 1954, plaintiff and a Mr. Aten went to Highway 81 Drive-In theater north of Wichita in a Ford pick-up truck. About 11:00 p. m., when the show was over, they left the theater with the intention of returning to Wichita. Mr. Aten was driving and plaintiff was sitting beside him. Aten, being unfamiliar with the locality, inadvertently turned north away from the city. Plaintiff remarked that he was driving in the wrong direction; Aten then pulled over in the passing lane for northbound traffic and began looking for a place to turn around. He put his arm out, signaling for a left turn. After he had driven some distance he slowed down. The automobile being driven by defendant Zuercher had been following Aten’s truck some distance. .As Aten was slowing down he first looked and saw defendant Ferguson’s automobile, about one-half mile to the north, traveling seventy miles an hour in the southbound lane next to the safety strip. Aten put his foot on the clutch and continued with his signal for a left turn, slowing his truck to a speed under ten miles an hour when he found a place in the safety zone where the grass had been worn down, indicating it was a crossing. This worn place was about sixty feet north of a driveway entrance into a residence on the west side of the highway. He was coming to a stop because there was not time to drive in front of the oncoming Ferguson automobile. He drove his left front wheel upon the safety strip and was getting ready to come to a stop to yield to the Ferguson car when his truck was hit from the rear by defendant Zuercher’s vehicle and the truck was knocked into the path of the southbound Ferguson automobile. In just a second or so the Ferguson car struck the truck in which plaintiff was riding, and by reason of the crash plaintiff sustained serious injuries which need not be related here.
Plaintiff’s petition, after alleging the facts, charged both defendants Zuercher and Ferguson with failing to keep a proper lookout for other vehicles, with traveling on the highway and failing to keep their respective cars under control; and charged defendant Zuercher with failing to stop or turn aside his vehicle in such a manner as to avoid striking the truck in which plaintiff was riding and in following the truck too closely in violation of G. S. 1955 Supp., 8-543. The petition further charged defendant Ferguson with operating his automobile at an excessive rate of speed, with failing to turn aside and thus avoid colliding with the truck, with failing to have adequate brakes and not applying them, and with failing to decrease his speed prior to the collision.
Viewing the evidence in harmony with the mentioned legal principles of law as to defendant Zuercher, we conclude that the evidence tended to sustain the view and the jury might reasonably infer that, considering traffic conditions at the time and place, defendant Zuercher failed to keep a proper lookout or to have his car under control so that he was able to turn it aside and avoid striking the truck in which plaintiff was riding, and that he followed too closely behind such vehicle.
As to the defendant Ferguson, the record does not disclose the location of the Ferguson automobile at the time Aten’s truck was driven onto the safety zone or its position at the time the Zuercher car struck the truck or at the time the truck was knocked into Ferguson’s lane of traffic. A careful review of the record fails to disclose any evidence that the defendant Ferguson had time to do anything to avoid the collision.
The case should have been submitted to the jury with reference to defendant Zuercher. It follows that the judgment of the trial court is affirmed as to defendant Ferguson; and as to the defendant Zuercher, the case is reversed and remanded with directions to the trial court to set aside its order sustaining defendant Zuercher’s demurrer to plaintiff’s evidence and to grant her a new trial.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
A petition was filed and a malpractice action commenced by plaintiff against defendant, as personal representative of her deceased husband’s estate, in the probate court where decedent’s estate was being probated. The probate court transferred the case to the district court for trial. At the conclusion of the evidence, which was principally by depositions, a motion by defendant for a directed verdict was sustained and the jury so returned its verdict for defendant. Plaintiff appeals from the order sustaining defendant’s motion for a directed verdict and from the order overruling her motion for new trial.
After the transfer to the district court no additional pleadings were filed and there was no request to amend them except that the words “servant and employee” were stricken from the petition. The petition substantially alleged that Doctor William B. Cheeseman, a resident of Johnson county, died on January 11, 1955, and that the administration of his estate was pending in the probate court; that on May 4, 1954, Doctor Cheeseman and his agent, Doctor Weaver, acting under and in the scope of the direction of Doctor Cheeseman, negligently and carelessly performed a gall stone operation on plaintiff whereby a gauze pad or surgical sponge was left within her body. This caused plaintiff pain, mental and physical anguish, and suffering. Other allegations involved damages totaling $20,000 including the expense of removing the foreign body.
Defendant, as executrix, filed her answer which was a general denial and also a specific denial of any negligence on the part of decedent in connection with plaintiff’s operation.
The cause was submitted to a jury and, as before mentioned, the evidence consisted principally of depositions.
The first deposition offered by plaintiff was that of Doctor B. I. Burns, commissioner of hospitals of Kansas City, Missouri, which included General Hospital No. 1 where plaintiff’s operation was performed; the deposition showed the hospital notes and records of plaintiff while she was a patient in and also an outpatient of the hospital; that Doctor Cheeseman was a staff physician at the hospital and staff physician on plaintiff’s case and as such he was the active physician on the visiting or voting staff who supervised the work of residents and internes in the care of patients and who participated in teaching the residents and internes; plaintiff, as were most of the patients, was a charity patient cleared through a welfare agency and Doctor Cheeseman received no pay for his services; a resident is a trainee, not a qualified specialist, but he would be specializing in his field; Doctor Weaver was a resident in surgery, was associated with and assisted Doctor Cheeseman, a qualified specialist in surgery, in the operation on plaintiff; Doctor Weaver was a resident, he was paid for his services from tax money and it was quite probable that he took the lead in the operation because he was far enough along in his training to have been entrusted therewith; the staff man stood over the resident when the resident was permitted to operate; Doctor Weaver was not the surgeon in charge, he was the assistant, although he may have actually done the operating; regardless of a resident’s training, the staff member to whom he is assigned is supposed to be present at anything as serious as a gall bladder operation. Doctor Weaver was graduated in June, 1955.
Plaintiff testified that Doctor Cheeseman conversed with her the previous November about the operation and about two or three days before the operation Doctor Weaver and Doctor Cheeseman examined her in the hospital; Doctor Weaver and Doctor Cheeseman were both with her when she was wheeled into the operating room and Doctor Cheeseman had on operating clothes and a mask; throughout plaintiff’s stay in the hospital she suffered severe pain and pressure at one end of the incision and she had complained of this to the internes and to Doctor Cheeseman; on December 17,1954, she had a second operation by Doctor Pollock, whose deposition shows that X-rays had disclosed an opaque mass in the abdomen and the operation had revealed a surgical tape (a pad of gauze) twelve inches square. It is not customary to find such a situation long after surgery.
Plaintiff’s sister, who was in plaintiff’s room after the operation, testified that during her presence there Doctor Cheeseman was the only doctor who came to plaintiff’s room and he was in surgical clothes.
Doctor Weaver’s deposition was then introduced by plaintiff. He had not quite finished his third year of residency in general surgery at the time of the operation; Doctor Cheeseman was advisor and teacher to the residents and as such it was not necessary or customary for him to be in the operating room at all times; the witness doubted that Doctor Cheeseman was in the operating room; Doctor Cheeseman was advisor and not employer of Doctor Weaver; Doctor Cheeseman supervised or observed the witness in surgery; witness signed his own name and by authority from common usage at the hospital, also signed Doctor Cheesemans name to many of the reports; Doctor Cheeseman was witness’s advisor in a student-teacher relationship; the welfare of the patients was their joint responsibility.
At this point in the record plaintiff rested her case, defendant demurred to the evidence, and the demurrer was overruled by the trial court.
Defendant’s first witness was Doctor Harry C. Lapp, chief surgeon on the staff of the hospital, who testified to the effect that a gall bladder operation is a major operation and the visiting staff member is usually in attendance or available in the operating room; this depended upon the resident’s training and ability as determined by the visiting staff surgeon; the following question and answer were a part of Doctor Lapp’s testimony on cross-examination:
“Q. ... If the visiting staff surgeon is in there and he sees that the resident surgeon in training is doing something wrong, or perhaps not doing it the right way, does he have the authority to take over? A. Well, he would have the authority to take over, yes.”
Doctor Marvin Roberts, another resident, testified he was first assistant, Doctor Cheeseman was second assistant, and Doctor Weaver was the surgeon in charge of the operation. The duty of the first and second assistants is to provide exposure in the operating field — to provide an opening by hands or retractors through which the operating surgeon can see the area of the operation.
There was testimony from the witnesses that the nurses, as was the custom, counted the sponges before the operation commenced and a tabulation was made. Before the body cavity was closed the nurses made another count and if it was the same as before, they notified the surgeon to that effect and the opening was closed.
The trial court sustained the motion of defendant for a directed verdict in favor of defendant, directed the jury to bring in its ver diet for defendant, discharged the jury and entered judgment for' defendant for costs. Plaintiff filed a motion for new trial which was overruled. Plaintiff appealed.
The trial comb in sustaining the motion for a directed verdict made quite an extensive statement and we believe it will simplify our discussion if we include the statement here in its entirety:
“Of course, I did have an opportunity to go over these depositions very carefully, and also parts of the record that I thought were material. I actually can’t see very much in the status of the case that has changed from when the Court was called to rule on the demurrer to the plaintiff’s evidence, but even though most of the factors are resolved in favor of the party against whom a motion for a directed verdict is leveled, nevertheless the real question before the Court is whether or not there is any sufficient evidence that twelve reasonable men and women could find that Dr. Cheeseman was negligent in the performance of his duties as an individual or vicariously under this principal and agent relationship that the plaintiffs have chosen to limit themselves to.
“Now, in the first place, the Court feels that there has been no showing by the evidence that there was ever any undertaking on the part of Dr. Cheese-man to operate on this woman as his patient. Now, at the very most, you have some custom evidence to the effect that it was the custom at the hospital, apparently, to have a staff member on duty when.the operation was performed by a resident surgeon, and from all the evidence it appears that he was there in an advisory or consultant status. But even in this case, if we accept the hospital record as true, at the very most Dr. Cheeseman was there, if at all, or at least during part of the. operation, as the second assistant. The fact remains that so far as the’evidence is concerned, all the evidence indicates that this operation was performed by Dr. Roberts (Weaver?), who was a qualified resident surgeon at the hospital at the time. ■
“Now, I say plaintiffs have limited themselves in this respect, that you are either going to have to find Dr. Cheeseman was liable as an individual, or under some sort of a vicarious principle that the plaintiffs limited themselves to agency.
“Now, they didn’t allege or their theory of this case is not that Dr. Cheese-man permitted an unqualified or incompetent surgeon to perform the operation. Rather, at the most, it is whether or not he, as a staff member, was responsible for any of the acts of the resident surgeon in performing the operation where there is no evidence that he actually took an active part, except at the most maybe as second assistant, or that he was even under a duty.
“Now, there was some indication in the evidence that he could take over if the need arose, but nevertheless, from all the evidence, the relationship there between those people was a staff doctor and resident physician, and who conceivably — although there is no direct evidence to the effect — could have several operations going on at the same time, none of which he was the surgeon on. At most, he was an advisor or consultant.
“From these things I just don’t see how, if we let the jury have the case and they bring back a verdict for the plaintiff, there would be any evidence in the Court’s mind that would permit that verdict to stand up under any of these theories. This isn’t a res ipsa loquitur; if it was, it might be different, I don’t know. It isn’t a ease where you have said that Dr. Cheeseman let an incompetent man go in there. In fact, there is no showing how these resident surgeons are even selected for the operation; and so far as the evidence is concerned in the case, there is really no showing other than that Dr. Weaver was the surgeon on this case, and if there was any physician-surgeon-patient relationship, it would have to be on the part of Dr. Weaver and the plaintiff.
“I am familiar with the questions of agency in the cases that counsel has set out. I agree that there can be a temporary servant relationship, but we are not talking about servants, we are talking about agents, and you can’t find any benefit here. As I say, if there was any physician-patient relationship, it was between Dr. Weaver and the plaintiff, and not Dr. Cheeseman; nor was it for his benefit.
“The Court, I might say, is reluctant to take these things away from a jury, but on the other hand, I am duty-bound to apply the law as I see it, and I think it is simply a case where you have sued the wrong man, and that is putting it as bluntly as I know how.
“In most of these cases, particularly this California case, which incidentally, is a good case, but in most of those cases and many of the others, which I read, you have the question right there of a man that was a surgeon. He was the one that was responsible, and even though there might have been assistants, there was evidence to indicate that there was an actual assistant, and I don’t know whether your allegations here are even broad enough in that respect so in view of all of this, I feel, as I say, that I have to apply the law as I see it, and regardless of the sympathies or the difference in stations of life of the parties, there is no question this woman has been damaged because of carelessness on somebody’s part, but I feel that it is the Court’s duty to take it away from the jury and sustain a motion for a directed verdict on the part of the defendant.”
While the trial court apparently found that plaintiff had suffered damage as the result of “carelessness on somebody’s part” it is not certain from the rest of its remarks that it determined there was negligence which was the proximate cause of plaintiff’s injury and resulting damage. We find a sweeping statement included in an annotation in 162 A. L. R. at page 1299;
“The failure of a surgeon to remove a surgical sponge or other foreign object from the body of a patient following the use of such an object during the course of an open operation constitutes one of those occasions where, by reason of the very nature of the omission, a majority of the courts, although recognizing its general application, have expressly or impliedly refused to apply the otherwise well-established rule that negligence of a physician will not be inferred or presumed because of an adverse result of medical treatment.” (Our emphasis.)
See, also, 70 C. J. S., Physicians and Surgeons, § 62, pp. 990, 991, where a statement of the general rule — that negligence of a physician or surgeon is not presumed, but must be affirmatively proved —and that this is true even though the injury sustained is of an unusual character is made and then the following clear statement is set out:
“It has been held, however, that the fact that a foreign body is left within the body of the patient after an operation is so inconsistent with due care as to raise an inference of negligence, and that plaintiff need not invoke the doctrine of res ipsa loquitur in order to prevail in such a case.” (p. 991.)
From a statement in 41 Am. Jur., Physicians and Surgeons, § 97, p. 213, we note that an operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon (Russell v. Newman, 116 Kan. 268, 270, 226 Pac. 752, Bernsden v. Johnson, 174 Kan. 230, 237, 238, 255 P. 2d 1033) although there are many cases which take the view that such a failure on the part of the surgeon is negligence per se. In 41 Am. Jur., Physicians and Surgeons, § 126, p. 236, referring to the burden of proof, is a statement to the effect that the treatment may so plainly indicate that the physician has been negligent as to shift to him the burden of showing, “. . . that the act prima facie negligence was not so in fact; for example, the burden of showing care is on a surgeon who leaves a sponge inclosed in a wound after the performance of an operation.” See also, Laughlin v. Christensen, 1 F. 2d 215, 217. A somewhat recent annotation in 13 A. L. R. 2d at page 84 sets out, along with the rule in other jurisdictions, the rule applicable in Kansas and Missouri.
While it is contended by defendant that plaintiff was a charity patient, we do not believe that fact is determinative of any issues in this case and we will not labor the point. (70 C. J. S., Physicians and Surgeons, § 52, p. 975; 41 Am. Jur., Physicians and Surgeons, § 79, p. 198.) We have here no question of case referral by one physician to another physician, or by a general practitioner to a specialist, or of two physicions or two surgeons acting independently of each other and those situations will not be considered. Much is said about the rule of res ipsa loquitur but that, too, is not relied upon either in plaintiff’s pleading or the evidence and we will not consider it.
We do, however, have the elements of respondeat superior, agency, and primary or joint and several liability alleged in plaintiff’s pleading and in the evidence so far as concerns her claim for damages against the estate of Doctor Cheeseman. The trial court in overruling tire demurrer, which ruling was not appealed from at the time, nor is it presently the subject of a cross appeal here, found that plaintiff’s evidence established a prima facie case of negligence on the part of Doctor Cheeseman and whether it was the proximate cause of plaintiff’s resulting injury was then a matter for the jury: The ruling on the motion for a directed verdict will be discussed later.
The evidence showed that Doctor Cheeseman, a recognized specialist in surgery, was the first doctor that plaintiff contacted when she began to suffer. Doctor Cheeseman arranged for her entry into the hospital and it should be noted that in addition to what has already been narrated herein from Doctor Harry C. Lapp’s deposition, he stated, in substance, that a doctor without hospital connections was unable to get bed care for his patients and a staff member in good standing could get his patients in if there were available beds. Thus it must be a fact that there was a patient-physician, or patient-surgeon relationship between plaintiff and Doctor Cheeseman which continued through such time when the actual operation was commenced and after she was returned to her room. Doctor Cheeseman was the only doctor to visit plaintiff in her room and he came in while still attired in his operating clothes.
It is admitted that the evidence is somewhat conflicting on what actually took place in the operating room. Plaintiff, who was under anaesthetic, could not testify as to what happened and Doctor Cheeseman is deceased. Doctor Roberts was there and he placed Doctor Cheeseman present in the room as a second assistant in helping to keep the operating field open by using hands or retractors. The two nurses present testified only to the sponge count. Then we have Doctor Weaver’s deposition (part of which is relied on by defendant) where he stated that he doubted that Doctor Cheeseman was in the operating room at all times. This testimony' cannot be considered as conclusive in the form in which it is stated even from an expert. We cannot agree with the defense or the trial court in their respective theories based solely on Doctor Weaver’s testimony that Doctor Cheeseman was not there all the time or that Doctor Cheeseman could have had several operations going on at the same time on none of which would he have been the surgeon. Once Doctor Cheeseman became plaintiff’s physician or surgeon (here also a specialist) he remained in that capacity, so far as plaintiff was concerned, as long as he took part in her treatment. This included her pre-operative care, both before and after entering the hospital; his presence with Doctor Weaver during her pre-operative examination in the hospital; his accompanying her into the operating room; during the period of the operation, when he was the only specialist-surgeon present and he acted as second assistant and as supervisor, teacher, advisor, or consultant with authority to take over if something was done wrongly by Doctor Weaver; and during the postoperative care of plaintiff, when he visited her room while still in his operating clothes. Doctor Cheeseman made subsequent visits to the patient at which time she complained of suffering severe pain, a full feeling, and of pressure at one end of the incision but he failed to examine plaintiff and to discover the foreign substance that was later discovered and removed by another surgeon-specialist. In other words, there was not the slightest break in the relationship of patient and surgeon between plaintiff and Doctor Cheeseman during the time when she first saw him in November, 1953, until she contacted Doctor Pollock the following December, as reflected in the record. Plaintiff was entitled to have the question of the existence of the patient-surgeon relationship between her and Doctor Cheeseman submitted to the jury as a fact question. (70 C. J. S., Physicians and Surgeons, § 63, pp. 1010, 1011.)
Attention is directed to the case of Baird v. National Health Foundation, 235 Mo. App. 594, 144 S. W. 2d 850, where there is an exhaustive treatment of a malpractice case against multiple defendants, three of whom were doctors who saw the patient at successive times. All three were held to be jointly and severally liable, (pp. 607-609.)
Doctor Cheeseman did not hold himself out to the public merely as a surgeon with the duty to use reasonable skill and care for the safety and well-being of his patient (41 Am. Jur., Physicians and Surgeons, § 79, p. 198) but he held himself out to the public as a specialist in surgery and he, therefore, as a matter of fact had a common law duty to bring the skill and care of such a specialist to plaintiff as his patient. (41 Am. Jur., Physicians and Surgeons, § 90, p. 208.) It is impossible to conclude under this record as a matter of law that Doctor Cheeseman used such degree of skill and care in his treatment of plaintiff as his patient.
We will pause here to note the evidence and contention, or attempt of defendant to relieve Doctor Cheeseman of liability by showing that the nurses kept the sponge count. This seems to avail him little, if anything, because the sponge was found at the point of the operation and there was nothing in the record to dispute this fact. It remains a question of fact for the jury to decide. In other words, a count of sponges by a nurse before and after an operation is not conclusive. (Laughlin v. Christensen, supra, p. 217.) This appears to be the majority rule and is stated in more detail in 41 Am. Jur., Physicians and Surgeons, § 97, p. 214.
By reason of what has been said we think it is unnecessary to go into the elements of respondeat superior and agency. However, we are not here determining whether those elements are in the case.
From the record and the authorities, it appears that plaintiff had the right to have Doctor Cheeseman s acts submitted to the jury for its determination as to whether his acts constituted negligence and were the proximate cause of plaintiff’s injury or resulting damage, and whether his was a primary liability. (Russell v. Newman, 116 Kan. 268, 270, 271, 226 Pac. 752; Baird v. National Health Foundation, supra.) The trial court held that someone was negligent but plaintiff had sued the wrong man. Taking that view of the evidence raises the question whether Doctor Cheeseman was jointly and severally liable with Doctor Weaver. The decisions in the Russell and Baird cases state that question is one for the jury to decide.
On the question as to whether the trial court erred in refusing the introduction of evidence by plaintiff in the form of a mimeographed copy of the constitution and by-laws of the visiting staff of General Hospital, it is sufficient to say that from the record before us we are unable to see any probative value in exhibit 4 in this case, as between plaintiff and the executrix of Doctor Cheeseman’s estate, and we think the trial court was correct in rejecting admission of exhibit 4 into evidence.
In addition to what has previously been said as to the trial court’s sustaining of the motion for a directed verdict after overruling the demurrer to the evidence, we are presented with incompatible rulings. In an earlier malpractice case (Stout v. Bowers, 97 Kan. 33, 154 Pac. 259), former Chief Justice Johnston, speaking for the Court, stated:
“If the demurrer to plaintiff’s evidence could not be sustained a verdict against her could not be directed, because of conflicting evidence subsequently produced in behalf of the defendants. Her case might have been strengthened by the testimony offered in their behalf, but on the motion to direct a verdict the prima facie case made by her testimony could not be weakened or destroyed by theirs.” (p. 36.)
On this same point see, also, Flentie v. Townsend, 139 Kan. 82, 88, 30 P. 2d 132, (a malpractice case) and Mathis v. Public School District No. 103, 175 Kan. 453, 264 P. 2d 1082, where it was said:
“As in the case of a demurrer evidence against which a defendant directs a motion for a directed verdict must be construed in the light most favorable to the plaintiff and against the defendant.” (Syl. ¶ 2.)
In view of what has been said we will not discuss further the statement of the trial court when making its order sustaining the motion for a directed verdict. The judgment cannot stand for the reasons stated and it must be reversed and the case remanded with instructions that the trial court grant a new trial and proceed therewith in accordance with this opinion.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This action for damages arises out of an intersection collision in the town of Coats. Judgment was for plaintiff, and defendant appeals.
The petition charged that defendant was negligent in driving at a high and excessive rate of speed under the circumstances then existing; in failing to keep his truck under proper control; in failing to keep the proper lookout for others, and in operating his vehicle in such a manner that he failed to stop and permit plaintiff’s vehicle to proceed through the intersection; in failing to yield the right of way to which plaintiff was lawfully entitled, and in failing to do anything to avoid the collision.
Defendant’s answer contained the usual denials and charged that plaintiff’s injuries were the direct and proximate result of his own negligence in operating his vehicle at a high and excessive rate of speed; in failing to yield the right of way to defendant who was lawfully entitled thereto; in failing to keep a proper lookout for other users of the highway, and in failing to do any other act to avoid the collision.
1 We consider it unnecessary to narrate the evidence in detail, and it is sufficient to say that plaintiff approached the intersection from the west and defendant approached it from the south. The collision occurred in the northeast quadrant of the intersection, and there was evidence to indicate that defendant’s truck struck the right rear end of plaintiff’s vehicle. The intersection in question was not controlled by traffic signs.
The jury returned a general verdict in favor of plaintiff and its answers to special questions found that plaintiff was traveling twenty miles per hour when he entered the intersection; that nothing prevented plaintiff from observing the approach of defendant’s truck from the south; that plaintiff saw defendant’s truck approaching from the south prior to the collision; that the collision would have occurred if plaintiff had exercised ordinary and reasonable care in protecting himself; that defendant’s truck did not enter the intersection prior to when plaintiff’s vehicle did; that plaintiff looked to the south before entering the intersection; that plaintiff did not apply his brakes, reduce his speed or attempt to turn out in order to avoid the collision, and that plaintiff, through his own negligence, did not contribute to or cause the collision.
Motions to set aside answers to certain of the special questions on the ground they were not supported by the evidence, to set aside the verdict and to render judgment on answers to certain of the special questions, and for a new trial, being overruled, defendant has appealed.
His first specification of error is that the trial court erred in denying him permission to amend his answer prior to commencement of the trial.
In connection with this complaint it appears that the parties had participated in a pretrial conference some two or three weeks prior to the date set for trial, at which conference the matters in issue had been clearly defined. On the day of tidal defendant sought to amend his answer by including therein a city ordinance of Coats which provided that no one should operate a vehicle on any of the city streets at a speed in excess of fifteen miles per hour. This request to amend was denied.
Defendant argues that because of the jury’s finding that plaintiff was traveling twenty miles per hour when he entered the inter section the violation of the city ordinance thus became vitally important. In view of the record we think the point is not well-taken. Defendant’s answer, upon which the parties went to trial, charged plaintiff with excessive speed in entering the intersection, and the record establishes that the question of plaintiff’s speed was in issue throughout the trial. Aside from the fact that a violation of a traffic ordinance is not in and of itself sufficient to bar one’s recovery as a matter of law, and that to prevent recovery it must appear that such violation was the proximate and legal cause of the resulting injury (Crawford v. Miller, 163 Kan. 718, 186 P. 2d 116; Rohrer v. Olson, 172 Kan. 674, 677, 242 P. 2d 825), it cannot be said that the denial of defendant’s request to amend his answer in any way prejudiced his rights. All of the facts relative to plaintiff’s speed were presented to the jury, and it found that his speed of twenty miles per hour was not a contributing factor to the collision.
Another specification of error relates to the refusal of the trial court to submit a special question asking whether the collision was the result of an unavoidable accident.
We find nothing in the record to indicate anything other than that the collision was the result of negligence on the part of either or both parties involved. There was no evidence to justify the submission of. the question, and it was not error to refuse to give it.
Other specifications of error relate to the refusal to give certain requested instructions, the giving of certain instructions, the denial of defendant’s motion to set aside the verdict and to render judgment on the answers to special questions, the denial of defendant’s motion to set aside answers to special questions, and the denial of defendant’s motion for a new trial.
In his brief, however, defendant more or less abandons these last-mentioned specifications of error and devotes his principal argument to the proposition that under the evidence it is clearly established that plaintiff was guilty of contributory negligence and therefore is barred from recovery.
This case presents a good illustration of the many “fact” cases reaching this court which revolve around the question of “who got to the intersection first,” or who was or was not guilty of negligence in operating a motor vehicle. On many occasions a reading of the cold printed record would seem to lead to a conclusion different from that found by a jury. That, however, is not the test. In the absence of error relating to the admissibility of evidence, instruc tions given or refused, or other trial errors prejudicially affecting the substantial rights of the parties, a finding of fact by a jury, when supported by substantial competent evidence, is final and is not to be disturbed by an appellate court.
Here the principal issue concerned the due care or lack thereof on the part of each driver in entering the intersection. Plaintiff’s theory was that inasmuch as he reached the intersection first he had a right to assume that defendant would observe the law and yield the right of way. (Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P. 2d 223.) All of these matters were properly within the province of the jury to determine. All issues, including that of contributory negligence on the part of plaintiff, were resolved in plaintiff’s favor. The special findings are consistent with each other and with the general verdict, and are supported by the record. The jury was properly instructed on all material matters in issue. It is not claimed that the verdict is excessive. 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
Wertz, J.:
This was a workmens compensation case. We will hereinafter refer to appellee Lewis Johnson as claimant and appellant Skelly Oil Company as respondent. Claimant was awarded compensation for temporary total disability by the workmen s com‘pensation commissioner based upon a finding that claimant’s injury aggravated a pre-existing condition which resulted in his disability. From the award of the commissioner, respondent appealed to the district court, contending that written claim for compensation was not made within the statutory time. After a hearing the trial court held that written claim for compensation was not served within the statutory time and dismissed claimant’s action. Claimant appealed from that judgment to this court and after a review of the record (Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P. 2d 172) we reversed the judgment of the trial court and remanded the cause with directions to set aside its order dismissing the action and to proceed in accordance with the provisions of the Workmen’s Compensation Act. The trial court, in compliance with our directions, held a further hearing and sustained the award of the workmen’s compensation commissioner’s finding that claimant sustained personal injury through accident arising out of and in the course of his employment by respondent and that such accident and resulting in jury intensified and aggravated an existing condition and contributed to his disability, resulting in temporary total disability for which claimant was entitled to compensation for certain specified weeks. The lower court entered judgment accordingly.
From the judgment entered, respondent appeals to this court and contends that the trial court erred in three particulars, all of which resolve into one question: Was the evidence sufficient to sustain the trial court’s finding that claimant’s pre-existing disease was aggravated by the accidental injury received by him in the line of duty and in the course of employment?
Respondent recognizes the well-established rules by which the triers of the facts in workmen’s compensation cases are governed. The risk of employing a workman with a pre-existing disease is upon the employer. Where a workman is not in sound health but is accepted for employment and a subsequent industrial accident suffered by him aggravates his condition resulting in disability, he is entitled to compensation. (Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 74, 151 P. 2d 688; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863, and cases therein cited.) There is no standard of health necessary to bring a workman under the statute and accidental injuries are compensable thereunder where the accident only serves to aggravate or accelerate an existing disease or intensifies the affliction. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; Copenhaver v. Sykes, 160 Kan. 238, 243, 160 P. 2d 235.)
However, respondent strenuously urges that we adopt a rule followed in some other jurisdiction to the effect that where a pre-existing disease has been materially aggravated by accidental injury the compensation award should be apportioned according to the contribution of the pre-existing condition and the accident and cites American Rolling Mill Co. v. Stevens, 290 Ky. 16, 160 S. W. 2d 355, 145 A. L. R. 1256, wherein it is stated:
“Where an accident ‘lights up’ a pre-existing disease, the accident is compensable but award should be apportioned according to contribution of each.” (Syl. 4.)
The mentioned decision is based upon the Kentucky statute, which is altogether different from ours, and the rule laid down appears to be the minority rule. It might be pointed out that by an amendment to the Kentucky compensation statute in 1948 the legislature expressly adopted the majority rule. (Section 342.120.) We see no reason why we should change our well-established rule and we therefore adhere to the majority rule laid down in our opinions cited above.
Under the rule laid down in Pinkston v. Rice Motor Co., 180 Kan. 295, 299, 303 P. 2d 197; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106, and cases cited in the foregoing opinions, we will examine the record to determine whether the evidence most favorable to claimant is sufficient to sustain the award.
The evidence shows that on February 9, 1953, claimant was hired by respondent and given a pre-employment examination by Dr. M. E. Christmann, the company doctor, who found a small lump in claimant’s left leg and was told it was a fragment of a .22 caliber bullet left from a twenty-year-old injury. On October 9, 1953, during the course of his employment by respondent, claimant, while sliding in and out of a boiler in the process of cleaning the scale therefrom, scraped and bruised the lump on his left leg. By evening the protrusion was sore, “raw and reddish” and he bathed it with alcohol. The next morning his left leg was “swollen and puffy” and sore to the touch and the lump had become the size of half a hen egg. He reported for work that day and after discussing the injury with his foreman was requested to go to work. The first of the next week respondent’s superintendent checked on his injured leg and the protrusion having grown considerably larger, he advised claimant to see the doctor. However, claimant continued working until November 9, 1953, when he went to Dr. Christmann. The doctor lanced the draining abscess in the calf of his left leg and found a hard mass at the base of it, which he removed. On November 16, the doctor performed an operation on claimant’s leg as the lump had been found to be cancerous. Up until the time of the hearing, claimant was in the hospital four times and during that time another operation was performed on his leg and he was given several radium treatments in the damaged area. At the time of the hearing, he had a hole in his left leg the size of a dime and the doctor was still administering treatment and had not yet released him for work.
Dr. M. E. Christmann testified that he was a physician employed by the respondent; that he attended claimant the latter part of October or the forepart of November [1953], when he was brought into the office with a draining abscess of the calf of his leg; that at that time he gave him a local anesthetic in the area and proceeded to open the abscess wide enough to allow free draining so that it could heal and at the base of this abscess he found a very hard mass which he proceeded to remove; that since this first treatment claimant received continuous medical treatment and attention by him to the date of the hearing; that claimant told him he bruised his leg sliding back and forth in the boiler while doing repair work at the respondent’s plant. He further testified that he had examined claimant previously for the purpose of employment by the respondent and at that time found a small lump in his leg which claimant described as being due to an old injury. He testified that in his opinion any small protrusion from the body is subject more to the possibility of bruise or injury to the tissues and that the bruise of the claimant in his opinion resulted in the abscess he found; that he later discovered the matter was cancerous and operated on claimant at the hospital; that claimant also received some radium treatments of the area and later went to the hospital in January of 1955 for another operation on the leg; that at the time of the hearing claimant’s leg was still in need of treatment and he (the doctor) was administering treatment to the leg and would not release claimant for work and claimant could not return to manual labor.
The doctor, in a letter dated June 24, 1954, directed to respondent at its Tulsa office, stated:
“In my record Mr. Johnson had a small mass in his leg at the sight [site] of the trouble in question at die time he was accepted for employment, which condition was aggravated or precipitated into difficulty requiring the surgery and radium treatments.”
He testified on cross examination that the lump he removed from claimant’s leg was found to be malignant; that he treated him for a malignant tumor secondary to his abscess; that the infection had spread from the time claimant was injured until he saw him and had gone deep enough to involve the upper portions of the tumor; that the “blow” to the leg did aggravate the condition in the leg, but that the bruise did not cause the malignant tumor therein.
He also testified:
“Q. Do some tumors abscess and become malignant without any type of injury to them at all?
“A. No, I don’t think that could be established.
“Q. There are tumors inside the body that grow and become malignant that aren’t harmed or hit in any way. Isn’t that true? Doesn’t that happen?
“A. Tumors seldom abscess of themselves.
“Q. Now, Doctor, you testified that this possible hitting of a bruise or raised place on the leg would aggravate any other type of condition in the leg. You don’t mean to say that would cause tire tumor to grow, do you? Go ahead and answer that, please.
“A. I mean that if there was a bruise causing an abrasion of the skin causing the infection, that the invading infection in a period of time from the time the injury occurred to where I saw it could have aggravated the tumor, yes.”
He further testified that the abscess was “intertwined with any other condition that existed in his (claimant’s) leg, and this abscess resulting from the blow did aggravate any condition that existed in his leg, normal or abnormal.”
Without further detailing the evidence contained in the record, we are of the opinion that the facts and circumstances of the case amply support the findings and award of the trial court and it follows that the judgment is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Mason, J.:
. The commissioners of Reno county on May 26, 1920, levied county and township taxes to meet the first payment of principal and interest due January 15, 1921, upon bonds issued to raise money for a road improvement. The county clerk declined-to extend the levies upon the tax rolls on the ground that they were not authorized by law. This action is brought against him by the. state, on the relation of the county attorney, to compel- such extension. The case is submitted upon an agreed statement of facts.
The county clerk contends that no tax can be levied to provide a fund for-the payment of the bonds until the improvement is completed, and the disposition of the case turns upon the soundness of that contention.
The first steps for the improvement of the road were taken in 1918, and were controlled by the law then in force. (Laws 1917, ch. 265.) After its amendment in the following year, the proceedings were governed by the new law. (Laws 1919, ch. 246, § 8; Washburn v. Shawnee County, 103 Kan. 169, 172 Pac. 997.) Under the act of 1917 no bonds were to be issued until the completion of the improvement. (§9.) The section of the present law relating to the issuance of the bonds and the levy of taxes reads as follows':
“That section 9 of chapter 265, Laws of Kansas of 1917, be amended to read as follows: Sec. 9. After the approved estimates have been filed with the county clerk and the cost to be assessed against the taxable property of the county and township has been approximately determined by deducting from the total estimated cost all donations, subscriptions, state aid or federal aid that have been- granted or promised, the board of county commissioners may issue from time to time as required, bonds of the county, bearing not to exceed five per cent interest, payable within the time fixed in the petition for levying special assessments: Provided, The total amount of bonds issued previous to completion of the improvement shall not exceed the amount of the estimated cost to be assessed against the county and townships. Said bonds shall be issued in series and shall be payable in equal amounts each year as nearly as practicable, and shall be disposed of by the county board in the manner provided by law, and the proceeds thereof shall be deposited with the county treasurer in the special fund for the improvement. Aftei; completion of the improvement, the application of state and federal aid, the ascertainment of apportionments to be charged against the taxable property in the county and township and the amount assessed against the several tracts of laAd within the benefit district, the board of county commissioners shall issue bonds of the county in the same manner as above provided in this section and the proceeds thereof shall be used in paying the remaining outstanding warrants for the improvement. After any such bonds are issued the board of county commissioners shall make an annual levy upon all the taxable property of the county and upon the taxable property of the township and upon the lands within the benefit district according to the apportionment of cost fixed upon said lands in all cases in proportion to the respective liabilities, which tax shall be sufficient to pay the bonds falling due each year and the interest upon outstanding bonds; these bonds shall be in addition to any other bonds' which the county may by law be authorized to issue: Provided, That the board may- in its discretion pay the county’s proportion of the cost out of the general fund and road fund of the county if such funds are sufficient for .that .purpose after deducting all other proper charges against said funds, and after such payment no general county levy shall be made for payment of the bonds, or if any portion of the county’s proportion of the cost is paid in such manner the county levy shall be reduced proportionately thereto: Provided further, That the township board or boards of the township or townships affected by the benefit district may, in their discretion, deposit with the board of county commissioners sufficient funds to pay the township’s proportion, or any part thereof, of the cost of the road out of the general funds or road funds of said township or townships, if such funds are Sufficient for that purpose, and if any of the townships’ proportion of the cost is paid in such manner, the township levy shall be reduced proportionately thereto.” (Laws 1919, ch. 246, § 6.)
The act further provides that the cost of the improvement in excess of the aid received from the federal government and from other sources shall be distributed thus: Fifty per cent to the county, twenty-five per cent to the townships in which the benefit district is situated, divided according to its area in each township, and twenty-five per cent among the several tracts within the district according to the benefit received as determined by the county commissioners after the completion of the improvement (§ 5) ; and also that the petition shall designate “the number of annual assessments to be levied upon the lands in the benefit district” (§ 2), in this instance twenty.
It will be observed that the statute authorizes the issuance of one set of bonds upon the filing of the approved estimates, and another after the improvement is completed, and then provides for the levy of taxes for the payment of' “any such bonds,” obviously referring to those of both sets. The difficulty to which the defendant calls attention arises out of the fact that no levy can be made upon the specially benefited property until the work is finished. This dilemma is therefore presented: either no provision is made for the levy of a tax in time to provide a fund to meet at maturity the first installment due on the bonds already issued, or else a series of annual county and township general levies must be begun before any special assessment can be levied upon the peculiarly benefited lands. It cannot have been contemplated by the legislature that bonds should be issued on which a payment should be due before means could be provided to meet it. In the absence of an express provision on the subject it could readily be inferred that the intention was for a tax levy to be made in time to prevent a default. (United States v. New Orleans, 98 U. S. 381, 393; 4 Dillon on Municipal Corporations, 5th ed., § 1506.) The defendant has not shown that there is any way other than that pursued by the commissioners by which that result can be avoided. In the oral argument it was suggested that warrants might be issued for the purpose; but the issuance of warrants, unless a fund existed against which they could properly be drawn, would not amount to a payment or better the situation, and there is no showing of the existence of such a fund.
The language of the statute to the effect that after the issuance of bonds the commissioners shall make an annual levy upon all the property of the -county and of the townships, and upon the lands within the benefit district, would naturally seem to mean, in the absence of some specific reason to the contrary, that the levies of fhe general tax and of the special assessments were to begin at the same time. But to avoid the consequence pointed out — the opening of a way for the issuance of bonds without the power to provide for their payment —it may readily be interpreted as meaning that if any installment of principal or interest qn the bonds matures before a special assessment can be made, a general tax sufficient for the purpose shall be levied. It will be noted that the limitation of the number of levies ‘is not in terms made applicable to the general county and township taxes, the provision being that the petition for the road improvement shall designate “the number of annual assessments to be levied upon the lands in the benefit district . . . which shall be not less than ten nor more than twenty.” The bonds, moreover, are required to be made “payable within the time fixed in the petition for levying special assessments.”
We conclude that it was proper for the commissioners to levy the taxes in question upon all the property of the county and townships, although for the present no local assessment can be made against the land specifically benefited.
It is suggested that this conclusion results in practical difficulty because the tax levied,-being based on the estimate and not on the actual cost of the improvement, may overrun the amount needed. While the immediate occasion for levying a tax at this time is the need of providing a fund to meet the installment first maturing, the purpose of the tax is 'to pay a part of the debt incurred to make the improvement, the statutory requirement being that it shall be “sufficient” therefor, and any surplus can be carried over to the next installment without constituting a diversion. Although the obvious in tention is, that the amounts raised annually shall be approximately equal, there is no requirement of absolute equality, and minor differences can easily be adjusted from year to year.
The defendant interprets the statute as requiring that all the taxes it provides for shall be levied “according to the apportionment of cost,” and argues that this cannot be arrived at until the completion of the work. The language from which he derives this meaning is to the effect that the commissioners “shall make an annual levy upon all the taxable property of the county and upon the taxable property of the townships and upon the lands within the benefit district according to the apportionment of cost fixed upon said lands in all cases in proportion to the respective liabilities.”' The italicized words of the quotation show that the requirement regarding apportionment has reference only to the special assessment upon the benefited property,, for the general tax runs against personalty as well as real estate.
A final argument against the tax is based on the theory that its levy before the completion of the improvement would deprive the townships of the opportunity given them by the statute to avoid general township taxes, or reduce their amount, by depositing with the county board funds to pay, or to apply upon, its proportion of the cost. We do not see that such a consequence follows. It was not necessary for the officers of a township to know the precise amount for which it would ultimately be liable in order to make a cash deposit in lieu of the first year’s levy, and that course, which was open to them, would have taken care of the situation for the time being.
The writ of mandamus asked for is allowed.
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The opinion of the court was delivered by
Johnston, C. J.:
In this action plaintiff sought a recovery of the value of 62% bushels of wheat, for which he asked judg ment against the defendant for $128.12. The result was a judgment in favor of defendant, and plaintiff has appealed.
The defendant rented the tract of land from plaintiff on which he sowed a crop of wheat, and it was agreed that the rental to be paid should be one-third of the wheat raised on the farm, which he was to. deliver at the nearest market, which was Liberty, Kan. The wheat was grown and harvested and a few days before threshing was commenced plaintiff was notified to come and assist in making a division of the wheat. He did so, and on the machine with which the threshing was done, was a weigher. The plan adopted was to put 50 bushels, machine measure, in a wagon, the plaintiff taking one load to defendant’s two loads, and these loads were taken as they were threshed to the elevator at Liberty until thirteen loads had been taken there, when the parties were informed that the elevator had no room for more. It was then agreed that the remainder should be divided and placed in separate bins on the farm, and the plaintiff continued to assist in making the division until the threshing was completed. A few of the first loads of wheat when weighed at the elevator did not weigh out 50 bushels, when a readjustment of the weigher was made and then most of the loads overran the machine measure. Nine of the loads taken to the elevator and allotted to defendant weighed 453% bushels, while the four loads assigned to plaintiff weighed 200% bushels. The principal dispute between the parties is as to the division of the wheat that was placed in the bins on the farm. It appears that when the wheat was finally weighed out of the bins, plaintiff’s share proved to be short 62% bushels. . The defendant’s share as weighed out, including that placed in bins, amounted to 1,503% bushels, while plaintiff’s share, including the first four loads first placed" in the elevator and those hauled to the bins, amounted to 680% bushels. The machine measure of the entire crop was 2,230 bushels and on that measure defendant was entitled to 1,486% bushels, but it appears to have weighed out 16%} bushels more than that quantity. Plaintiff’s share according to machine measure was 743% bushels, but when weighed out was 62% bushels less than that quantity. A controversy arose at one time as to whether a mistake had been made in placing a load in defendant’s bin that should have been in plaintiff’s bin, but the verdict of the jury is in effect a finding that no such mistake was made.
There was testimony that when the defendant started to haul plaintiff’s wheat from his bin he discovered that a quantity of the wheat had disappeared. The doors of the bins in which the wheat was placed were not locked, and were not in a condition to be locked. After the threshing was completed, and the wheat had been placed in the bins, defendant left the premises and plaintiff’s new tenant went into possession of the farm. The defendant contended that if plaintiff’s wheat was stolen from the granary after the wheat was divided it was his own loss. The verdict of the jury, of course, determines all disputed questions of fact in favor of the defendant. In the first place, there is evidence that it was the understanding and agreement of the parties that the division should be made at the threshing machine and the conduct of the parties in making a'division there and setting apart their separate shares according to machine measure tends to sustain that contention. The rent agreement, which was an oral one, provided that defendant was to deliver plaintiff’s share at the market, but it does not appear that when made anything was said as to whether the division should be made at the farm or at the market, and whether it should be made by machine measure or elevator measure, after delivery. It was competent for the parties to make an agreement that the wheat should be divided according to the weigher on the thresher, and under the circumstances of the case it cannot be held that there was any lack of consideration for such an agreement. The evidence is sufficient to sustain the defendant’s contention that a division was to be and actually was made at the machine, by machine measure, when the threshing was done. The matter and manner of division was fairly submitted to the jury in the following instruction:
“5. You are further instructed that if at the time of the threshing the parties divided the wheat raised upon the farm and agreed upon the division, and that the wheat belonging to the plaintiff was put in plaintiff’s bin, and that the wheat belonging to the defendant was put in defendant’s bin, and that at that time the wheat put in the defendant’s bin was two-thirds of the wheat raised upon the farm, then your verdict should be for the defendant in this case. On the other hand, if, at the time the wheat was threshed, the parties attempting to divide the wheat, but by some mistake or error some of the one-third that belonged to the plaintiff was placed in the bin of the defendant, and it was agreed that the division of the crop should be based upon the weights at the time the wheat was marketed, then your verdict should be for the plaintiff and against the defendant, in whatever sum the difference between the amount of wheat which the plaintiff received and the amount which he should have received would have been worth at the then market price of $2.05.”
Following this instruction the jury in effect found that a division of the wheat was agreed upon and made at the time the threshing was done, and that plaintiff was given his one-third of the crop and the defendant two-thirds of the same. While defendant’s wheat when marketed overran the machine measure 16% bushels, there is testimony that after the first loads were threshed and it was found that it did not weigh out 50 bushels to the load, the weigher was readjusted so that the loads subsequently threshed ran a little over 50 bushels each. A witness who had experience in the threshing and measuring of grain, and knew of the adjustment of the weigher, said he thought the measure of defendant’s wheat would overrun as much as 16% bushels. While plaintiff’s share proved to be short, it may be accounted for by the theft of a part of his share after it had been placed in his bin. As we have seen, the defendant had moved from the farm before the wheat was marketed, and when he went to haul it to market he noticed that there was less wheat in the bin than there was when it was stored there. As to the care of the wheat after a division was made the court told the jury:
“6. You are further instructed that after the division of the wheat was made and agreed to, if you should find it was made and agreed to by and between the parties at the time the wheat was threshed, the duty of Bressie towards Sticelber’s wheat was only that he should use such care as a reasonably prudent man under like circumstances would use to care for it, and deliver it to market. He was not in any sense an insurer of it. If it was stolen or lost without fault on his part, he would not be responsible for the loss.”
If the division was made at the threshing machine as the jury has found, any loss from the theft of the plaintiff’s allotted share was not, under the circumstances, the loss of the defendant. After the division was made the part allotted to him was his own property. He selected the place of storage knowing the conditions and the risks of loss, and he also knew that another tenant was coming into possession of the farm. As the trial court said to the jury, the defendant “was not in any sense an insurer of it. If it was stolen or lost without fault on his part, he would not be responsible for the loss.”
Complaint is made of the refusal of the court to require a more definite answer to interrogatory number two. It was:
“How many bushels of wheat were raised by the defendant upon plaintiff’s farm in 1918?” The answer was: “We don’t know.”
It is' manifest that the jury were unable to give an exact answer to the question as it was framed. The difficulty arose by reason of the two methods of measurement upon which testimony was given, one as made at the machine and the other at the market place. However, the answer is not deemed to be important as the division was made on the basis of the machine measure and there was no dispute as to the quantity of wheat according to that measure.
Although complaint is made of the instructions, we find nothing substantial in the objections to them, and finding no error in the record the judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment in favor of the plaintiffs for attorneys’ fees.
The petition alleged that in 1902 the plaintiff, Ziegler, contracted with the Peoples Gas Company for a retainer of $100 a month, and $25 a day and actual expenses for the days employed out of his office, and in addition to be furnished free gas for heating and lighting his residence and office; that in 1905 he formed a partnership with the plaintiff, Dana, with which firm the contract was continued, except the per diem was increased to $50 instead of $25, and free gas for heating and lighting the residence of plaintiff Dana was added; that in August, 1905, the Peoples Gas Company sold to McDowell, who orally requested the plaintiffs to continue in their employment as formerly with the Peoples Gas Company and they were regularly paid therefor until December, 1908; that in January, 1908, it was agreed between the plaintiffs and John J. Jones, attorney for the defendant, the Kansas Natural Gas Company, that the employment should be continued as before without the $50 per diem, and such employment continued through 1909 and 1910, the defendant having in 1910 succeeded the Peoples Gas Company; and that during 1911, and up to December, 1912, the defendant by virtue of this agreement furnished gas to the plaintiffs, but failed to pay their monthly salary of $100, vouchers therefor being sent in and adjustment thereof being promised. Judgment was prayed for the unpaid balance of $1,200 with interest from January 1, 1912.
The defendant denied that the alleged services were rendered or had been accepted, and denied the authority of Jones to employ the plaintiffs as alleged, and averred that they had been notified in 1910 that no further payment would be made.
The court found in favor of the plaintiffs and rendered judgment for $1,710.
The defendant assigns as error the overruling of the demurrer to the plaintiffs’ evidence, the denial of a new trial, and the rendering of judgment for plaintiffs.
The court did not err in overruling the demurrer to the plaintiffs’ evidence, which fairly supported the allegations of their petition.
The motion for a new trial assigned as error the admission of objectionable testimony and the exclusion of admissible evidence.
As to the first, the trial was before the court without a jury, and if any improper evidence was received the presumption is that the chaff was sifted from the wheat by the trial court in reaching its conclusion. (Wilson v. Colborn, 106 Kan. 440, 188 Pac. 430.)
These matters, however, are not discussed in the defendant’s brief, but the position is there taken that the defendant by purchasing the property of the Peoples Gas Company did not become obligated on its personal executory contract; that a contract for the continued services of the law firm was not assignable ; and that the contract in this case terminated by the discontinuance of the employer’s business.
We think, however, with counsel for the plaintiffs, as suggested in their brief, that the question is not one of law, but one of fact, as to whether or not the plaintiffs performed services for the Kansas Natural Gas Company which have not been paid for. All the conundrums propounded by the counsel for the defendant are merely academic in view of the testimony found in the record touching the performance and acceptance of legal services, which testimony justified the conclusion reached by the trial court. It appears that Mr. McDowell wrote to the auditor to notify the plaintiffs that their services were no longer desired, but neither the addressee nor Mr. Jones, to whom the letter was shown, informed the plaintiffs of its contents, and they continued to hold themselves in readiness to attend to business for the defendant and to refuse offers of business against it.
Of course, as it takes two to make a bargain it takes two to unmake one, and a mere undisclosed desire to sever the contract relations was not sufficient.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment recovered by the plaintiff for injuries sustained while in a transfer truck which had been driven across the defendant’s tracks between two cars going in opposite directions, one of which collided with his truck and shoved it against an iron trolley pole, and the other of which collided with his truck, severely injuring him.
It seems quite likely that the cars were both running in violation of the speed ordinance of the city, and the plaintiff was crossing in a manner prohibited by another ordinance providing how a vehicle should cross a street.
The court instructed that under the facts the plaintiff was guilty of negligence by going upon the tracks in the way he did, and that such negligence would prevent his recovery unless he was allowed to recover under the doctrine of last clear chance; that if his own negligence continued up to and actually contributed to the injury he could not recover.
“But, although plaintiff was guilty of negligence in placing himself in a position of danger, . . . yet if his negligence had ceased and the defendant, ... hy the exercise of ordinary care, ought to have seen the danger to plaintiff in time to avert the same, and failed to do so, or . actually saw plaintiff’s danger in time to avert the same by the exercise of ordinary and reasonable care under the circumstances, . . . and failed to do so then the defendant is responsible for any injury directly resulting to plaintiff from such failure to exercise ordinary care in either case.”
Among the answers to special questions returned by the jury were the following:
“Q. 6. Did the plaintiff have time to leave the van after it was struck by the east bound car, while it was being shoved down the street to the trolley pole, and avoid injury, before it was struck by the west bound car? A. 6. So confused had no time.
“Q. 7. What, if anything, did the plaintiff do to escape injury, after the van or truck was struck by the east bound car, while it was being shoved down the track to the trolley pole, and before it was struck by the west bound ear. A. 7. Nothing could be done.
“Q. 8. Could not the plaintiff, by looking and listening and taking-proper precautions for his own safety, have stopped his truck or have caused his truck to be stopped before it went upon the defendant’s tracks, while it was in a position of safety, and thus have avoided being struck by either the east bound or west bound car? A. 8. Yes, by remaining in the position he was in before starting.
“Q. 9. If you answer the last question in the negative, state what there was to prevent the plaintiff from stopping or causing his truck to be stopped while it was in a position of safety thus avoiding injury. A. 9. Nothing, because he thought he had ample time to cross ahead of the west bound car.”
Counsel for the defendant contend that under the facts and findings the plaintiff should have been held guilty of continuing negligence; that the defendant is not responsible for his being “confused”; and that he tried to leave the truck at the wrong place. All these matters are regarded as questions of fact properly answerable by the jury.
Counsel for the defendant frankly concede that the doctrine of last clear chance as frequently declared in this state applies when the defendant actually finds the plaintiff in a condition of peril, or by the exercise of proper care should so find him, his own negligence at that time having ceased. But it is argued with much force, buttressed with numerous authorities, that no duty arises in such cases until the actual discovery of the perilous condition. However, the rule is so firmly fixed in this state and so thoroughly supported by the great weight of authority that it cannot now be changed. In Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, the deceased was riding a bicycle, and on going down an incline on smooth asphalt pavement to a street on which a car was running and with which he was about to collide,' he turned eastward parallel with the car, and after reaching some rough pavement was thrown from his bicycle in front of the moving car, carried some distance and killed. It was claimed that contributory negligence barred recovery. It was also argued that although the negligence of the deceased contributed to the collision, yet if the motorman saw him in a position of danger, or by the exercise of reasonable diligence should have seen him, in time to stop the car before killing him, the defendant was liable. This theory was adopted and followed after full consideration. This decision was adhered to after a most thoroughgoing examination in Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, and these two decisions were approved and followed in Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611. The same rule was announced in the Dyerson case and followed in Railway Co. v. Clinkenbeard, 77 Kan. 481, 94 Pac. 1001, and all three were approved and followed in McMahon v. Railway Co., 96 Kan. 271, 150 Pac. 566. In these decisions the doctrine was so carefully gone into and so clearly stated that mere reference thereto is sufficient.
The rule so established was correctly given by the trial court, and the record presenting no error, the judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover on a promissory note, and appeals from an adverse judgment. The defendant suggests that owing to the dates and the forms of notices of appeal the plaintiff has mistaken the date of the judgment, but from the journal entry it appears that the verdict was returned and the judgment entered on February 19, 1918. The motion for a new trial was filed two days later, and overruled on May 27, 1919, and the notices of appeal are sufficient to bring before us this ruling. That motion included certain alleged errors occurring at the trial, and these are properly before us for consideration.
The plaintiff, having been a farmer, freight handler, railroad and stationary engineer, and having helped build some stockyards, became a freight clerk and checker at Greeley for the Denver, Laramie and Northwestern Railway Company. This company, with several incorporated subsidiary concerns, seemed to be engaged in an attempt to build and operate a railroad and float its stock, and especially to raise money therefor. The plaintiff knew a Mr. Johnson who seemed to be the head of all these companies and the active manager of all the enterprises involved, and who made speeches intended to inspire confidence in the success of the desired operations. Mr. Johnson succeeded in inducing the plaintiff to lend $6,000 in all, upon his express statement—
• “That it was needed to help carry the railroad through to Severence or Black Hollow, . . . this would enhance the value of the Realty Company and the stock of the other companies.”
For the loans making up this amount he took notes signed by a constituent company called the Denver, Laramie Realty Company. Those notes were secured by collateral belonging partly to the Realty Company and partly to the Land and Iron Company. He testified that he could have had the note of any one of the companies, but he went to Johnson, who told him to take one of the Realty Company’s because he was a stockholder in it. The collateral notes taken as security were made to the Land and Iron Company by a man named Failing, a stockholder living in Denver, and indorsed by Johnson. The latter called the plaintiff over the 'telephone and asked him to come to Denver as he thought he would be able to settle up on the notes. The plaintiff went, taking his notes along, expecting payment. When he arrived he was informed by Johnson that he had learned that the Failing notes were of no value, but that he had some gilt-edged paper which he would like plaintiff to take and make another extension. This paper was signed by a man named Henderson, whom the plaintiff knew. • A new note for $6,000, due in ninety days, was made out, and Henderson’s notes as collateral were taken in place of the Failing notes. The Failing notes were good and-were shortly. thereafter paid.
When the Henderson note sued on herein .became due the plaintiff brought suit, alleging that he had bought this note before maturity, indorsed by the payee, the Denver, Laramie and Northwestern Railroad Company, by Johnson, president. The defendant denied that the plaintiff paid anything for it, that he was a holder in due course or a bona fide holder, and alleged that its consideration had "entirely failed, that it was executed to the railroad company under an agreement that it should not be used for any other purpose than the extension of the railroad, which road had violated its agreement. On the trial counsel for the plaintiff stated that they were not trying to say a good word on behalf of the railroad company or any of the allied companies — •
“We are not here to make a brief for their rascality. It stands unique and alone in history.”
But it was asserted that the plaintiff had no knowledge of any promise or agreement madé to Henderson or as to how his note was obtained.
A companion case was before this court in Gigoux v. Moore, 105 Kan. 361, 184 Pac. 637, where a vivid picture of the enterprise may be found and where some of the matters presented here were finally determined.
Numerous errors are assigned upon the trial court’s rulings as to the evidence, and instructions given and refused, but in view of what was said in the former decision it is deemed unnecessary to take all these matters up at length at this time.
The plaintiff’s chief contention is that the court erred in instruction No. 4, which was to the effect that the burden of proof was upon the plaintiff to prove his right to recover, and that before the jury would be warranted in finding for him they must believe that upon the 13th day of September, 1911, the railroad company was indebted to the plaintiff upon a loan to it in the sum of $6,000, and that he surrendered certain securities which he held as collateral to such indebtedness, and took certain other collateral, including the note sued on. The fault found with this part of the instruction is that the indebtedness was literally that of the realty and not of the railroad company, but we think the evidence made it so plain that the various concerns involved went upon the theory of the three guardsmen, “All for one, and one for all,” that no material harm was done by this expression, for so far as the plaintiff’s debt was concerned it was owed by the railroad company for the money borrowed for its benefit.
But further complaint is made of the same instruction charg ing that the jury must also find that at this time the plaintiff had no knowledge that the note sued on was procured by fraud or that the defendant had any lawful defense to it—
“or that he had any information that would put a reasonable, ordinary and prudent person upon inquiry in reference thereto. And in the event that you so find, then you are instructed that it would be your duty to find for the plaintiff the full amount of said note, . . . and unless you so find, your verdict must be for the defendant.”
This, in substance, told the jury that unless they should find that the plaintiff had no such information as to put a reasonable and prudent person upon inquiry they could not find in his favor. It was made clear in the former opinion that, as in cases of notice of some infirmity in the instrument, bad faith in fact is required, and that mere failure to use ordinary diligence to follow up suggestive facts, or facts arousing suspicion, is not sufficient. (Gigoux v. Moore, supra. See, also, Bank v. Reid, 86 Kan. 245, 120 Pac. 339, and Leavens v. Hoover, 93 Kan. 661, 145 Pac. 877.) This complaint is met by the suggestion that in instruction No. 5 the court correctly gave the law and told the jury that the plaintiff could not be chargeable for failing to make inquiry unless he had knowledge of some defect, or had such knowledge in taking the note at such time as would amount to fraud. But after giving this instruction, No. 6 was given by the court, using this language:
“From the admission in this case there never was a time when the railroad company could have forced the collection of this note. But if the plaintiff has established the fact by a preponderance of the testimony, as defined to you in instruction number 4, he would have the right to recover regardless of the fact that the railroad company could not recover on the note. The plaintiff is not bound by any representations, private understanding or agreements of which he had neither notice nor knowledge.”
This is practically a reiteration of instruction No. 4, and there is nothing whatever, in the record to indicate that the jury were not led astray by the charge thus erroneously given. Under these circumstances it cannot be said that substantial justice has been done — which means a fair trial to each of the parties — and the rule against reversals for immaterial error does not apply. (Dotson v. Railway Co., 81 Kan. 816, 106 Pac. 1045; Triplett v. Feasel, 105 Kan. 179, 182 Pac. 551.)
It was sought to be shown by oral testimony that a resolution had been passed authorizing the assets of one company to be used as security for obligations of any other. An objection was sustained on the ground that it was not the best evidence, although it was testified that no such resolution could be found. It would have been proper to show this by parol. (Gillett v. Comm’rs of Lyon Co., 18 Kan. 410; C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 Kan. 121, 12 Pac. 593; 14 C. J. 376, § 491; 17 Cyc. 504), but as the evidence was not presented on the hearing of the motion for a new trial, it cannot be considered now. (Civ. Code, § 307, Gen. Stat. 1915, § 7209; Collins v. Morris, 97 Kan. 264, 155 Pac. 51.)
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
Wertz, J.:
This was an action based on breach of an implied warranty to recover damages for personal injuries caused by drinking part of a bottle of Coca-Cola which contained a packet of safety matches. The trial resulted in a judgment in favor of the plaintiff, and defendant appeals. The basis of plaintiff’s action was that defendant in bottling and putting the Coca-Cola on the market for immediate human consumption impliedly warranted that it was fit for that purpose, and the contents of the bottle in question being unfit for human consumption defendant thereby breached such implied warranty.
The undisputed facts insofar as they are pertinent to the issue involved may be briefly stated. Plaintiff, her three sisters, and a niece and nephew went for an automobile ride in the city of Wichita. They stopped at a service station where there was a coin-operated Coca-Cola machine. The Coca-Cola for the machine was bottled in defendant’s plant, purchased from defendant by the service station operator and placed in the machine either by the defendant or by employees of the service station. While the niece and nephew went to a nearby drug store, the plaintiff and her sister, not having the correct change to operate the Coca-Cola machine, ordered the Coca-Cola from an employee of the service station. He got change for them, put it in the machine, took out the Coca-Cola, opened the bottles and handed them to plaintiff and her sisters. After plaintiff drank one-third to one-half of the beverage, her sister called to her attention that there was some foreign substance in the bottle, which was later determined to be a book of matches. Plaintiff immediately took the bottle and its contents into the service station and showed it to the owner. He put the cap back on the bottle and plaintiff took it to her home. Shortly after consuming the beverage, plaintiff became violently ill and was taken to the hospital for treatment. Inasmuch as defendant does not complain of the amount of the judgment, the effect on plaintiff from drinking the contaminated beverage needs no further mention.
Plaintiff’s witnesses, including the owner and operator of the service station, substantiated the above-mentioned facts and that the foreign substance was in the bottle of Coca-Cola at the time it was purchased by plaintiff from the station operator. The station operator testified that about 15 minutes after the plaintiff bought the Coca-Cola, he observed one of the bottles having a foreign substance in the bottom of the bottle and that it appeared to be a book of matches. A chemist testified for plaintiff that he ran a qualitative analysis on the contents of the Coca-Cola bottle, which was the remainder that plaintiff had not drunk. He found the partially burned book of safety matches which was soaked with the fluid in the bottle. The analysis showed there was antimony in the Coca-Cola. No quantitative analysis was made, so the amount of antimony present was not determined.
At the conclusion of the plaintiff’s evidence, by way of defense the defendant offered the testimony of a chemist, who described the bottling process at the defendant’s plant. The witness then described an experiment he conducted by placing a book of matches in four separate bottles, which were then subjected to the washing process used in defendant’s plant. The bottles were then filled and capped in the usual process and taken to witness’s laboratory for analysis. At this point and before the results of the test were stated by the witness, plaintiff objected and was sustained on the ground that the test was not conducted within the theory of the lawsuit, in that this was an action based upon the breach of implied warranty and not upon the acts of negligence of the defendant in bottling the beverage. This is the crux of this case and is the sole point raised by defendant in its brief. Other specifications of error have been abandoned.
The precise point raised by defendant is whether it may show that no negligence or other action on its part led to the contamination of the beverage. In other words, the question is whether the defendant, as a bottler of beverage for immediate human consumption, may show that if there is contamination it was caused by the action of a third party and thus relieve itself of liability. As stated, this action was brought on implied warranty, and negligence is not the basis of the action.
The triál court held, and we think correctly, that inasmuch as there was no question about the Coca-Cola being contaminated at the time it was sold and delivered to the plaintiff for immediate consumption the defendant is liable to the plaintiff if the foreign substance got into the bottle in question during the process of manufacturing and bottling, whether before or after the washing process, regardless of the efficiency of the defendant’s machinery and the method used in. its plant, and regardless of the subsequent experimental tests made by its chemist. In order for defendant to avoid liability under its warranty it must show who contaminated the beverage and not merely that the- defendant itself did not. It will not be presumed that a foreign substance got into the bottle of beverage through wrongful acts of a third person. (Coca Cola Bottling Works v. Simpson, 158 Miss, 390, 130 So. 479, 72 A. L. R. 143.)
We held in Challis v. Hartloff, 136 Kan. 823, 18 P. 2d 199, that neither allegations of contributory negligence nor those negativing any possible carelessness on the part of defendants are an answer or defense to an action to recover on a breach of an implied warranty.
It was held in Tank Co. v. Oil Co., 108 Kan. 690, 196 Pac. 1111, that negligence of the manufacturer is not an issue and it is no defense to a breach of an implied warranty that the tank company used reasonable care in selecting material for the tank and in constructing it. In Rig & Reel Co. v. Oil & Gas Co., 111 Kan. 37, 205 Pac. 1020, we said that the fact that care was used in selecting material used in building the tanks did not relieve the parties from liability on their implied warranty.
In Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930, we stated:
“Where articles of food for human consumption are manufactured or packed by a manufacturer or packer, and by a series of transactions reach a retail dealer who sells to tire consumer, the manufacturer or packer, each intermediate dealer and the retail seller impliedly warrant that such articles of food are wholesome and fit for immediate human consumption.” (Syl. ¶2.)
We held in Parks v. Pie Co., 93 Kan. 334, 144 Pac. 202, L. R. A., 1915 C, 179, that a manufacturer or dealer who puts food upon the market for sale does so upon an implied representation and guaranty that it is wholesome and fit for immediate human consumption. Practically, he must know it is fit or take the consequences if it proves destructive. Moreover, a manufacturer who prepares food for human consumption and places it in the hands of a dealer for sale is responsible in damages to the consumer who procures such food from the dealer and is injured by partaking of it, and this includes, inter alia, beverages placed in capped bottles. See also Stanfield v. F. W. Woolworth Co., 143 Kan. 117, 53 P. 2d 878; Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 308 P. 2d 150.
In view of our decisions, a manufacturer, intermediate handler or a retailer-dealer of food for human consumption is, in effect, an insurer that such food will cause no harmful effects because of deleterious matter therein. The basis for imposing this liability is public policy for the protection of the people as discussed in many of our cases. (Graham v. Bottenfields, Inc., 176 Kan. 68, 269 P. 2d 413.)
Defendant complains that our decisions have placed too heavy a burden upon the manufacturer and bottler of beverages. This contention was raised in Challis v. Hartloff, supra, where it was said that it does indeed place a heavy burden upon manufacturers and dealers of food, but it is one of the hazards of the business and necessary for the protection of the general public.
In view of what has been said, the trial court correctly excluded defendant’s proffered evidence as to the efficiency of its machinery and plant and the method used in bottling the Coca-Cola and the subsequent experimental tests made by defendant’s chemist as constituting no defense to plaintiffs action based upon a breach of implied warranty.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hall, J.:
This was an action to recover damages for negligence in the operation of an automobile. The trial court sustained a demurrer to the evidence and the plaintiff appeals.
No important issue is raised as to the pleadings.
This action was filed in the probate court by a petition of demand against decedent’s estate with appropriate request that the matter be transferred and tried in the district court pursuant to G. S. 1958 Supp., 59-2402a. The answer is a written defense to the allowances of the claim in demand against the estate.
In summary the petition alleged the plaintiff was proceeding west on a county road north of Eureka, Kansas. Loose gravel was piled parallel to the north shoulder of the road forming a ridge 4 to 5 feet wide and U2 to 2 feet high. The weather was clear. While the petitioner was proceeding westerly along the road and occupying the north half, or right hand, of the roadway the automobile operated by the decedent approached from the west proceeding east. The decedent’s automobile suddenly turned to the left, or north, and crossed the center line. The accident resulted. The petition also alleges the decedent was 79 years old and suffered infirmities and disabilities.
The written defenses denied generally and specifically allegations of the petitioner and set up the contributory negligence of petitioner.
Upon these issues joined, the matter came on for trial to a jury. The plaintiff introduced his evidence and rested. The defendant demurred to the evidence and, after consideration of argument on the issues raised by the demurrer, the court sustained the demurrer, discharged the jury and disallowed plaintiff’s claim against the estate of defendant with costs to the plaintiff. After overruling of post trial motions, plaintiff takes this appeal.
Plaintiff and appellant makes five specifications of error but urges only a consideration of the demurrer to the evidence.
Following the well established rule of this court, a consideration of such demurrer requires a review of the evidence to determine whether or not there was sufficient evidence to support the cause of action of the petitioner.
An examination of the plaintiff’s evidence shows:
There were no eye witnesses to the accident other than the petitioner.
In support of the petition plaintiff introduced the testimony of Mr. Edward E. Arnold. Mr. Arnold testified that he worked on an oil lease near the scene of the accident and drove the road where the accident occurred twice a day five days a week. On the day of the accident he was driving the road and came up behind decedent’s car. He said, “There were two people in this automobile and I drove up behind them. They were going down the road and on the left side of the road part of the time and part of the time they would be on the right side. I didn’t know what side he was going to drive on. I judge they were driving around 20 miles an hour. . . .” He attempted to pass decedent' but decedent did not respond to his horn.
“Q. Did you honk it just once?
“A. No, continuously.
“I started to honk as soon as I started down the big hill. That was before I got to the intersection. After I got to the intersection I kept following this car, I wanted to get by and he never did get over.”
Arnold went on to say that he could observe perfectly as he had perfect vision. As he stalled around decedent’s car, “the car was three feet over on the left side of the black center line and he had to slow his car down and put it in second gear, straddling clear over the gravel bar, the wheels being clear on the left side of the road and possibly up the gravel bar, the wind row, to get around Armstrong.”
Arnold further testified that he could see several cars coming from the east, one of which was the Haga car.
“As I went around this car (decedent’s), this ’49 black Chevrolet, I seen two elderly people, one a lady and one a man. The man was driving, I seen a cane between the man and the lady. . . .”
A Mr. John Runyan testified next for plaintiff. He was also an oil worker on his way home. He testified that he met the Armstrong car.
“Q. After you passed, or after you got by the first automobile you met on this route which was west of the driveway, did you then meet another car approaching in an easterly direction while you were going west?
“A. Yes.
“He was over too close to our side of the road and we had to pull up in tire edge of the gravel to get around him there. It was two-tenths of a mile west of the Groom’s drive-way where we got by the second automobile.
“The Court: Which car was it you met when you were two-tenths of a mile west of the Groom driveway?
“A. Well, as near as I know, it was the Armstrong car. It was the second one we passed.”
Mr. Runyan was followed by a Mr. A1 Baumgardner and a Mr. Merle Braymer both of whom were oil field workers and testified that they were traveling over the road at the approximate time of the accident and as to the condition of the road. Mr. Baumgardner testified that he too met a car which “was driving pretty much on his side of the road and that he pulled over into the gravel ridge a foot or more”.
Mr. Braymer testified that Mr. Haga passed him and at that time Mr. Haga’s speed did not seem unusual.
Mr. Charles B. Williams, Highway Patrolman, then testified that he arrived at the scene at 5:26 p. m. He said:
“The vehicles had not been moved. . . . The traveled portion was exactly 20 feet. The center of the traveled portion at that time was exactly 10 feet. . . . The vehicles were 9 feet apart. 7 feet 10 inches from the edge of the gravel winrow to the left rear wheel of the Armstrong vehicle. There were no skidmarks behind the Armstrong vehicle when I arrived. Skid marks behind the Haga vehicle were 30 feet. The left skidmarks of the Haga vehicle were 10 feet from the south edge of the gravel. The rear of the Haga vehicle swung very sharply to the north and the rear wheels struck the gravel winrow and it stopped. The entire front of both vehicles were damaged by the impact but the impact was on just about four-fifths of both automobiles. Of course, they pulled left to right.
“Q. Was there anything at all from your investigation on that road or anything would prevent, as far as yoü could see the Armstrongs using the south half of the traveled portion of the road.
“A. No, it was clear.”
The counter abstract includes the following testimony of Trooper Williams:
. . the road was twenty-six feet wide and along the north side there was a gravel windrow which reduced the travel portion to twenty feet; the Armstrongs were driving a 1949 Ohevrolet car and Haga was driving a 1953 Chevrolet car, and that the width of said cars was approximately six feet; ‘Exhibits Five and Six’ are scale models of the Armstrong and Haga cars, the Armstrong model being marked ‘A’ and the Haga car being marked ‘H’; at the request of plaintiff’s attorneys the highway patrolman drew an outline of the Haga car and the Armstrong car on plaintiff’s ‘Exhibit Two’, which represented the position of the vehicles in the road immediately following the collision; after the accident the vehicles were nine feet apart; the left rear wheel of the Armstrong car was seven feet ten inches from the edge of the gravel windrow on the north side of the highway; the right rear wheel of the Haga vehicle was in the windrow; there were skid marks behind the Haga vehicle for thirty feet which ran parallel with the road, the south skid mark being ten feet south of the south edge of the windrow; there were no skid marks by the Armstrong vehicle; at the time of the impact the rear of the Haga vehicle swung sharply to the north and stopped; and the Armstrong car was knocked back west and slightly south for a distance of nine feet;
“The entire front of both vehicles was damaged, but the impact was just on the left four-fifths of the front of both automobiles, which would leave the right fender escaping the initial impact.
“Q. On this print, does it show the true center line of the highway?
“A. You mean the black line of the right of way, yes.
“Q. And that center line shows how much of the surface of the road was south and how much of the surface of the road was north?
“A. That is correct.
“Q. How much does it show each way?
“A. In my opinion, it would be about thirteen feet. I don’t know what it shows there. Twenty-six feet is the width.
“Q. So actually from the true penter line there is thirteen feet to the north and thirteen feet to the south.
“A. That is correct.
“Q. On the north side, thirteen feet, which is the right hand side of the road, there is this windrow of gravel you testified to?
“A. Yes. '
“Q. And that windrow of gravel, including what is north of the windrow of gravel, it takes up approximately six feet, is that right?
“A. Yes.
“Q. That leaves a balance of seven feet between the true center line of the road and the south edge of the gravel?
“A. That is right.
“Q. How wide is a car?
“A. Approximately six feet.
“Q. So there was actually room between the true center line of the road and the south edge of the gravel for a car to drive?
“A. Yes.
“Q. Without extending or using any of the south portion of the true highway?
“A. That is correct.
“Q. Where the cars came together, if you can see your plat, these skid marks you showed on the map as being the skid marks of the Haga car, how far is the south skid mark south of tire true center line of the road?
“A. That would be three feet.
“Q. Three feet south of the true center line?
“A. Yes.”
Plaintiff then called a Mr. Ernest Grooms who testified concerning Mr. Armstrong’s infirmaties and disabilities. He testified:
“. . . I had ridden some with Mr. Armstrong for some years prior to January 12, 1954. Mr. Armstrong used a cane to walk with. He walked a little lame. It was his right leg. I observed the manner Mr. Armstrong applied the brakes on Iris car during the times I had ridden with him. I believe if I remember right, he took his foot off the foot feed and put it on the brake. Mr. Armstrong had used his cane for a couple of years, if I am not mistaken. The last time I saw him I think maybe when he walked he was using a cane. He limped some then, too. His condition was about the same as it was the last time I rode with him. His condition stayed about constant.”
The court sustained objection to other testimony of Mr. Grooms.
A Dr. Henry O. Marsh then testified in behalf of plaintiff’s injuries. Plaintiff’s final witness was Mr. Kenneth Razak, Dean of the School of Engineering, University of Wichita, who in answer to a hypothetical question reconstructed the scene of the accident and testified as follows:
“Now, assuming those facts which I-' have given you before in order to work on this problem, assuming those facts, is there anything you can compute in the way of deceleration forces or angle of impact of tire vehicles?
“A. I have taken these photographs you have furnished me and attempted to reconstruct the actions of the automobiles at, during and immediately follow ing the impact and I have a diagram together with some scale cards which I would like to use, whatever help it will be in explaining to the jury.
“Q. Is it possible from the facts given to determine anything regarding reaZtive speed of automobiles at the time of impact?
“A. Yes.
“Q. Can you tell us how you do that and what conclusion you arrive at?
“A. Knowing the fact that the car of Armstrong slid nine feet, as I believe that is in the record, and came to rest at this point; and knowing the amount of function (sic) between the wheels and roadway, I can compute the initial velocity of the Armstrong car at the time it left, or shall we say separated from the Haga car.
“Q. Would you give us your opinion and tell us a little bit how you arrive at it?
“A. My computation indicates that the Armstrong car separated from the Haga car while traveling at about nine and a half miles an hour. In other words, it would have slid nine feet if it had an initial velocity of about nine and a half miles per hour.
“That means the Armstrong car was going 9.5 miles per hour in this direction when it separated from the Haga car after the collision.
“The maximum difference in velocity between the Armstrong car and the Haga car initially would have been twice the speed of the Armstrong car backward at the time it separated or two times nine and one-half or 19 miles per hour.
“I computed at the time of the impact the left rear wheel of the Armstrong car would have been approximately three and a half feet from the south edge of the gravel ridge.
“My reconstruction of the accident shows the Armstrong car must have been turning to the right and had already turned to a small angle to the right. Therefore, at some time previous to the accident it must have been further to the left side of the road because it had already turned to the right.”
Other pertinent testimony in the counter abstract is as follows:
“12. The Armstrong car was traveling east at the rate of ten to fifteen miles per hour and was crowding the center of the road.
“14. In meeting and passing the Armstrong car, Bumgardner crowded the edge of the gravel but did not have any difficulty in passing; and at said time the Armstrong car was approximately eighteen inches south of the south edge of the Bumgardner car.
“15. The Haga car met the Armstrong car headon ninety-six feet west of the Grooms’ driveway.
“16. Bumgardner was driving approximately forty to forty-five miles per hour.
“17. The road at the place of the accident was twenty-six feet wide; the gravel ridge was four and one-half to six feet wide and the north half of the road after deducting the six feet maximum measurement for the travel ridge was seven feet wide.
“18. Haga’s car was a Chevrolet approximately six feet wide.
“19. There was ample room on the north half of the highway for Haga to drive his car without using any of the south half of said gravel road.
“20. At the time of the accident the skid marks of the Haga car were exactly ten feet from the south edge of the gravel road or a total of three feet south of the center line of said gravel road.
“21. Haga had skidded the wheels of his car for thirty feet, which skid marks were due east and west down the center of the road; and four-fifths of the left frontend of each car collided in the accident winch resulted in the death of Armstrong and his sister, and the injuries to Haga.
“22. There were no skid marks behind the Armstrong car; the impact caused the Haga car to come to an abrupt stop with its rearend swinging into the edge of the gravel ridge on the north; the Armstrong car bounced back west and a trifle south, a total of nine feet; the road was level and vision was unobstructed for approximately one-half mile at the place of the accident; and immediately after the accident highway patrolman, Trooper Williams, was called and he arrived at the scene of the accident before the vehicles had been moved.”
The court sustained defendant’s demurrer to the evidence on these grounds stated in the Journal Entry:
“1. That the evidence did not show Clark J. Armstrong to be negligent.
“2. That said evidence showed that claimant, Arley D. Haga was guilty of contributory negligence.”
In sustaining the demurrer the court said:
“It is unfortunate that this man was terribly hurt, there isn’t any question about it, but the question here is whether he contributed anything to his own injury and if by his conduct he has contributed to his own injury, then this demurrer must be sustained.
“I think from this evidence this old gentleman was wobbling around the road, like we have seen drivers do. That is probably one tragedy of an old person trying to drive an automobile; things like this are liable to happen. On the other hand, here is Mr. Haga, who was possessed of all his faculties, strong, healthy man at that time — ”
In the argument on demurrer the court said:
“If that is all the difference, you showed where he was down the road 100 yards, what difference would it make where he was on the road a 100 yares (sic) or quarter mile away if he was where he shouldn’t be, or the court thinks he was where he shouldn’t have been at the time of contact.” (Emphasis ours.)
In presenting the appeal to this court, counsel for defendant admitted the negligence of Armstrong. He said:
“In the instant case there would appear to be little question but what Armstrong was guilty of negligence. He was crowding the center line and had been partially on the wrong side of the road during all the time that it had taken him to drive from the corner west to the place of the accident. The evidence is also uncontradicted that although Armstrong was only driving 10 to 15 miles per hour he never put on his brakes prior to the time of the collision. . . .” (Emphasis ours.)
The ground rules on the consideration of the evidence under demurrer are well established by this court. In Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396, the court said:
“. . . Suffice it to say that careful and extended review of the record has been made and in conformity with our long-established rule, that in reviewing a ruling upon a demurrer to the evidence, this court does not weight or compare contradictory evidence but accepts all evidence as true and gives it the benefit of all presumptions and inferences that may properly be drawn therefrom and considers only such portion thereof as is favorable to the party adducing it (Nigh v. Wondra, 167 Kan. 701, 208 P. 2d 239; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; Briggs v. Burk, 174 Kan. 440, 442, 257 P. 2d 164; Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223; Spencer v. Supernois, 176 Kan. 135, 268 P. 2d 946; Stephens v. Bacon, 176 Kan. 460, 461, 271 P. 2d 285; Maust v. Ioerger, 177 Kan. 558, 280 P. 2d 566; and other decisions to the same effect listed in West’s Kansas Digest, Appeal & Error, § 927 [5], Trial, § 156 [2] and [3]; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 488, Trial, §§ 149 to 151 inch) . . .”
Likewise in Krey v. Schmidt, 172 Kan. 319, Syl. 1 and 2, 240 P. 2d 153:
“On a demurrer to evidence courts do not consider conflicting evidence on direct and cross-examination of the same witness but only evidence favorable to the party adducing it.
“Inferences from evidence favorable to a demurring party are not indulged in his behalf. On the contrary all inferences are construed in favor of the party whose evidence is so challenged.”
In the decision the court further said on page 325:
“Although there are some rather strong inferences in the instant case which might be drawn in favor of appellants courts are not permitted to consider them on demurrer. Only inferences favorable to the party against whose evidence the demurrer is directed may be considered. (James v. Grigsby, 114 Kan. 627, 634, 220 Pac. 267; Meneley v. Montgomery, 145 Kan. 109, 110, 64 P. 2d 550.)
“Irrespective of what courts may believe about the evidence they are bound to accept it as true when challenged by demurrer. . . . No rule is better established than the one that courts will not consider or weigh conflicting evidence on direct or cross-examination of a witness. We, therefore, conclude the court did not err in overruling the demurrer to appellee’s evidence.”
To sustain a demurrer to the evidence the negligence or contributory negligence must clearly appear from the evidence introduced. Most v. Holthaus, 170 Kan. 510, 513, 227 P. 2d 144:
“That a plaintiff’s negligence, or his contributory negligence, will bar him from recovery in an action for damages sustained in an automobile casualty and that a demurrer to his evidence should be sustained where either negligence or contributory negligence clearly appears from his evidence cannot be questioned. (Dolloff v. City of Wichita, 147 Kan. 63, 75 P. 2d 221; Crowder v. Williams, 116 Kan. 241, 226 Pac. 774; Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352; Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Moler v. Cox. 158 Kan. 589, 149 P. 2d 611.) . . .” (Emphasis ours.)
In applying the ground rules to this case, we believe the court did not follow them in sustaining the demurrer to the evidence. To sustain the demurrer on the grounds that Armstrong was not negligent and that Haga was contributorily negligent required the court to weigh conflicting testimony on both direct and cross-examination of the witnesses. In fact it is difficult to determine how the court absolved Armstrong from negligence in the light of its own statement that “the old gentleman wobbled around the road.” That reasonable minds would differ on the testimony is certainly borne out by the fact that defendant’s counsel admits negligence notwithstanding the finding of the court to the contrary.
Many similar factual situations have been before this court and the court has held such questions of fact as were raised by plaintiff’s evidence should go to the jury. A leading case is Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770:
“Appellants argue that their demurrer to plaintiff’s evidence should have been sustained. It is true, as argued on their behalf, the simple fact a collision occurred and someone was injured or some damage done, standing alone, will not support a verdict. There must be substantial, competent evidence of defendant’s negligence which caused the injury. (Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472; Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846.) It also is true that when plaintiff rested his case no one had testified who had been an eyewitness to the collision. But the testimony of eye-witnesses is not always essential. Evidence of physical facts and circumstances may be sufficient. Here there was substantial, competent evidence that the collision occurred in the northeast quarter of the intersection, a place where plaintiff, driving north, had a right to be, and where the defendant Hubert, driving east, should not have been. There also was evidence that the right front comer of defendant’s truck struck the side of the plaintiff’s car with such force as to drive the car diagonally into the cement abutment, breaking it down. We think this evidence sufficient to have sustained a finding by the jury that the collision and resulting damages to plaintiff resulted from defendant’s negligence.”
The Sawhill case was followed in Briggs v. Burk, 174 Kan. 440, Syl. 1, 257 P. 2d 164:
“Following Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770, and other decisions cited in the opinion, it is held, the physical facts and circumstances of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eye witness to the collision.”
In the decision the court further said:
“Under our decisions there can be no question that negligence may be established by circumstantial evidence (See e. g., Sternhock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162, and cases cited at page 86 of the opinion; In re Estate of Modlin, supra), also that the physical facts of a motor vehicle collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eye witness to the collision. . . .” (p. 450.)
Likewise the question of negligence or contributory negligence was not clearly shown in plaintiff’s evidence and should have gone to the jury. In Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 85 P. 2d 28, the court said:
“ ‘In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the plaintiff’s case, the demurrer should be overruled.
“ ‘In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might readh different conclusions thereon.’ ”
See, also, Beecher v. Stepanian, 170 Kan. 201, 224 P. 2d 1017.
Appellee relies strongly upon DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527; and Krey v. Schmidt, 172 Kan. 319, 240 P. 2d 153. Both of these cases can be distinguished because they went to the jury and the points raised by argument of appellee need not be considered here. Of course, the Krey case also stated the above ground rules on demurrer to the evidence but appellee was directing his attention to other portions of the case. Likewise Meng v. Penner, 179 Kan. 789, 298 P. 2d 246, involved a demurrer to the petition and is not persuasive. Appellee argues many other authorities which no doubt will be applicable in the defense of this matter but should not be considered on a demurrer to the evidence.
The ruling on the demurrer to the evidence is reversed, the judgment thereafter rendered is set aside, and the cause is remanded for further proceedings.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was a petition for the allowance of a demand filed in the probate court of Sedgwick county by J. G. Witmer, plaintiff (appellant), in the estate of Frank C. Brosius, deceased, defendant (appellee), for money allegedly deposited with decedent as a down payment on residential property to be constructed by O. A. Zimmerman, a building contractor. Thereafter, pursuant to G. S. 1955 Supp., 59-2402a, the cause was transferred to the district court, where issues were joined for trial. From an order of the trial court sustaining a demurrer to plaintiff’s evidence, he appeals.
Omitting the formal parts, the petition, insofar as is pertinent, alleged that on October 9, 1951, plaintiff entered into an oral contract with O. A. Zimmerman, contractor, by the terms of which Zimmerman and decedent were to build a duplex for plaintiff, the particular one to be selected later. On the same day, plaintiff wrote a check for $9500.00 payable to O. A. and Paul Zimmerman, and on the face of it he wrote “Payment on Duplex.” This check was endorsed by the Zimmermans, turned over to decedent, endorsed by him and deposited to his personal account. After the death of decedent, no duplex having been built for plaintiff, he and O. A. Zimmerman agreed on the substitution of a four-plex. They then went to decedent’s office and talked to Jack Frost, the accountant, requesting that plaintiff be given a credit of $9500.00 for a down payment on a four-plex. Frost denied that there was any record of the earlier transaction in the office. Plaintiff demanded that either the oral building contract be performed or his money be returned to him. Neither was done, and plaintiff claimed the estate owed him the $9500.00, plus interest from October 9, 1951.
Defendant, by answer, denied that O. A. Zimmerman was at any time the agent of decedent; that the only financial relationship existing between Zimmerman and decedent was that of mortgagee-mortgagor, creditor-debtor; that Zimmerman would execute to decedent various real property mortgages for “construction money.” When the buildings were completed and sold and decedent paid the principal and accrued interest, he then released the mortgages so that Zimmerman could deliver merchantable titles to the buyers. On September 28,1951, Zimmerman purchased from Rogers-Emrich Lumber and Supply Company, Inc., certain Eastwood Village lots and a warranty deed was executed by the company to Zimmerman and his wife. On October 9, 1951, decedent paid $9,486.95 to Rogers-Emrich by check, noting on its face, “W/D to Oswald Zimmerman, Eastwood Village Lots,” and debited Zimmerman’s account with $9,486.95. On October 11, 1951, Zimmerman presented to decedent plaintiff’s $9500.00 check, which defendant alleged paid the above loan, and this $9500.00 was credited to Zimmerman’s account by cash receipt ticket. Subsequently, construction money (secured by mortgages) was loaned to Zimmerman by decedent; the duplexes were built and sold, decedent receiving from the sale proceeds the principal and accrued interest set out in said mortgages; decedent then released the mortgages and all in excess was retained by Zimmerman. Plaintiff’s reply was a general denial.
A consideration of defendant’s demurrer requires a review of the evidence to' determine whether it was sufficient to make out a prima facie case against defendant. The evidence most favorable to the plaintiff may be summarized as follows:
For many years prior to his death on November 5, 1952, Frank C. Brosius was engaged in the mortgage loan business and frequently loaned to O. A. Zimmerman “construction money”; and in such instances took as security a mortgage upon the property. After construction and when the property was sold by the builder — the transactions being usually closed in Rrosius’ office — he would retain the amount of his construction loan, plus costs, and release his mortgage.
For a number of years, O. A. Zimmerman had been engaged in the business of constructing residential property, having numerous building transactions with and obtaining construction money from decedent on some sixty different properties. On September 28, 1951, Zimmerman purchased certain lots near Oliver and Morris Streets in Wichita from Rogers-Emrich Lumber and Supply Company, Inc., with a down payment of $1000.00. On October 9,1951, decedent issued his check to Rogers-Emrich for $9486.95 — the balance of the purchase price of the mentioned lots — and a warranty deed was executed to Zimmerman. Thereafter, Zimmerman told plaintiff he intended building several duplexes on the mentioned lots and plaintiff’s payment of $9500.00 would be credited to Zimmerman’s account in decedent’s office as a down payment on a duplex to be constructed on these lots, and that plaintiff could select his duplex later.
It was testified that plaintiff discussed the matter with his wife and as a result of this conversation, on October 9,1951, he delivered to Zimmerman his check in the amount of $9500.00 made payable to “O. A. and Paul Zimmerman,” which bore the notation “Payment on Duplex.” The Zimmermans, after endorsing plaintiff’s check, took it to decedent’s office, where it was received and endorsed by him and deposited to his personal account. Decedent, at the time he received the $9500.00 check, issued his cash receipt voucher showing:
"Date Rec. 10/11/51 Folio No. CR 256
Name O. A. Zimmerman J. G. Witmer CK 9500.00
CK Rogers-Emrich Lbr. Co. For W/D
Customer Accounts $9486.95
Other Receipts 13.05
Total $9500.00”
Subsequently, plaintiff, while working as a carpenter on some four-plexes, told Zimmerman that he would rather have a four-plex than a duplex. In November, 1952, shortly after decedent’s death, plaintiff and Zimmerman went to decedent’s office, where they met Mr. George Rrosius and a Mr. Frost, who were in charge of decedent’s affairs. Plaintiff told them he wanted a certain four-plex, inasmuch as he had paid $9500.00 down on a duplex. They informed him that they had no record of plaintiff having paid any sum on either a duplex or a four-plex, but suggested making a smaller allowance of $2000.00 or $3000.00 to him if he would go ahead with a contract of purchase.
O. A. Zimmerman testified that he had been in the contracting business for fifteen years and had built about sixty properties upon which he had obtained construction money from decedent; and that he was advised by decedent to get down payments on property because construction loans did not go far enough in the construction business. Zimmerman told plaintiff he would like to build him a duplex in the area of Oliver and Morris Streets, that he could use money in helping with the purchase of the lots and the money could be used as a down payment on a duplex in that area. Plaintiff brought Zimmerman a check for $9500.00; he told plaintiff he would take the check to decedent and it would be a down payment on a duplex; and he did then take it to decedent. He further testified that a few days prior to accepting plaintiff’s check he had a conversation with Frank C. Brosius and stated:
“I told Frank [Brosius] we were working on Mr. Witmer [plaintiff] to buy a duplex, make a down payment on one, and said that we would try to get a down payment that is more than required and then the balance would be made to a loan. Brosius told me that was fine and he said ‘If you can get a large down payment that helps out with our business here as far as having construction money available.’ A few days after I received the check from Witmer, I took it up to Brosius’ office. After I turned it in, Frank said that it was a nice deal and we needed a lot more of those kind of deals and that if we could get ‘down’ money on property and bring it up here it just makes it that much easier for us to operate. I don’t remember now whether I gave Witmer’s check to Frank or to the office. I turned it in to the office but I don’t remember to whom I gave it.”
He further testified that in the fall of 1951 they started three four-family apartments; that plaintiff decided he would rather have a four-family unit that a duplex; that he told decedent plaintiff did not want a duplex — he wanted a four-plex — and all of the duplexes would be for sale. Decedent offered no objections.
The record discloses that after the lots at Oliver and Morris had been purchased, decedent loaned the construction money to Zimmerman for the building of six duplexes and took mortgages to secure the loans. After plaintiff decided he wanted a four-plex instead of one of the duplexes, the six duplexes were sold and warranty deeds were executed by Zimmerman to the respective purchasers — the transactions being closed in decedent’s office. Decedent deducted the amounts of the construction loans from the sale prices and other expenses and held in his hands at the time of his death the difference between his loans and the sale prices in the sum of $11,895.25. No accounting was made to either Zimmerman or plaintiff prior to the death of decedent; and subsequent thereto and on February 1, 1953, the defendant estate charged the mentioned profit to Zimmerman’s indebtedness to the estate.
The evidence of Mr. Webster, a certified public accountant, was to the effect that plaintiff had received no benefit from the $9500.00 check given Zimmerman, delivered to decedent in his lifetime, endorsed by him and deposited to his personal account. The accountant further testified that due to the sale of the six duplexes the assets of decedent’s estate were augmented to the extent of plaintiff’s $9500.00 previously deposited as a down payment on a duplex.
No useful purpose would be served by narrating the voluminous evidence pertaining to building transactions had between Zimmerman and decedent. Suffice it to say that it had been the custom for Zimmerman to secure down payments from individuals for the construction of residential property and that apparently such payments were delivered to decedent to supplement construction loans. It was further disclosed that decedent had no complete bookkeeping system; that many of the transactions were carried in his head.
Summarizing the evidence, Zimmerman made a down payment of $1000.00 on seven lots and then told decedent he could get a down payment on a duplex from plaintiff if they would construct a duplex for him on the mentioned lots; decedent paid the balance due on the purchase price of the lots and had the deed issued to Zimmerman; Zimmerman then contacted plaintiff, secured his check for $9500.00 — marked “Payment on Duplex” — and delivered the check to decedent, who deposited it to his personal account and credited Zimmerman’s account with the balance of the purchase price he had advanced on the lots. Decedent was advised by Zimmerman of his entire transaction with plaintiff. Plaintiff was to choose one of the duplexes on the mentioned lots when they were completed. In the interim, plaintiff decided he preferred a fourplex. Zimmerman advised decedent to that effect and told him that the duplexes would all be for sale. They were sold to respective purchasers, the sale transactions being completed in decedent’s office; and the entire amount was deposited in decedent’s account. After deducting his costs and construction loans on the duplexes, de cedent had a net profit left from the transaction which exceeded plaintiff's $9500.00 that had been used by decedent to pay the balance of the purchase price of the lots upon which the duplexes were constructed. At the time of the death of decedent he had made no accounting to either plaintiff or Zimmerman, nor had he credited Zimmerman s account with the profits from the sale of the duplexes. Three months after the death of decedent, representatives of the estate credited $11,895.25 profit from the sale of the duplexes to an alleged obligation owed by Zimmerman to the estate, thereby augmenting the estate in that amount.
Giving the plaintiff's evidence the benefit of all inferences to which it is entitled, we are of the opinion that it was sufficient to make out a prima facie case against defendant estate and that the trial court erred in sustaining a demurrer thereto.
It follows that the judgment of the trial court is reversed and the case is remanded for a new trial.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
On May 15, 1957, we granted a rehearing in Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199, and ordered that the case be rebriefed and reargued at the June 1957 session, limited to the single question of whether separate appeals of owners of separate interests in the same tract of land who appeal from an award of appraisers in an eminent domain proceeding should bé tried as a single action by one jury, or as separate actions by separate juries. On that same day we entered an order recalling the mandate of this court issued April 29, 1957, to the district court of Osage County affirming that court in Collingwood v. Kansas Turnpike Authority, 181 Kan. 43, 310 P. 2d 211.
Following reargument of Moore v. Kansas Turnpike Authority, supra, we concluded we were in error in our original determination of points of law announced in ¶¶ 1 and 2 of the syllabus and the corresponding portions of that opinion, and have withdrawn and vacated those paragraphs and that portion of the opinion to which they relate. See our holding on rehearing in Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384, this day decided:
“The record examined upon a rehearing where the Kansas Turnpike Authority appealed from an order of the district court denying its motion to consolidate for trial as a single action the question of the sufficiency of the award of appraisers in an eminent domain proceeding presented by separate appeals of owners of separate interests in the same parcel of land, and held: (1) The question before the district court on the motion of the Authority was not whether the separate appeals of the landowner, the tenant, and the Authority should be consolidated for trial, but whether they could be severed when appeal is taken; (2) G. S. 1955 Supp., 26-102 construed to mean that separate appeals of owners of separate interests in the same tract of land who appeal from an award of appraisers in an eminent domain proceeding cannot be severed, and that any one or all such appeals bring to the district court in its entirety the sole question of the sufficiency of the award to be tried as a single action; (3) HII 1 and 2 of the syllabus and the corresponding portions of the opinion in Moore v. Kansas Turnpike Authoity, 181 Kan. 51, 310 P. 2d 199 are withdrawn and vacated; and (4) under the facts and circumstances of this case the court should now consolidate the separately docketed appeals for trial as a single action.” (Syl. If 1.)
Paragraphs 1 and 4 (a) of the syllabus in the original Collingwood case, supra, were decided upon the holdings of ¶¶ 1 and 2 of the syllabus and corresponding portions of the opinion in the original Moore case (181 Kan. 51, 310 P. 2d 199), and since we have withdrawn and vacated ¶¶ 1 and 2 of the syllabus of the original Moore case, supra, the same withdrawal and vacation applies to ¶¶ 1 and 4 (a) of the syllabus and corresponding portions of the opinion in the original Collingwood case, supra, and the same are hereby withdrawn and vacated.
In view of the foregoing, the judgment is reversed with instructions to the district court to proceed with the trial of all appeals as a single action in accordance with the views herein expressed. All other holdings in Collingwood v. Kansas Turnpike Authority, 181 Kan. 43, 310 P. 2d 211, are adhered to.
It is so ordered.
Price and Schroeder, JJ., dissenting.
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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 sustaining a demurrer to the petition of the plaintiff.
Throughout this opinion the appellant, Dale Dunn, will be referred to as the plaintiff, and The City of Emporia, Kansas, appellee, will be referred to as the defendant.
The plaintiff, a student at Kansas State Teachers College, at Emporia, Kansas, while clothed in tennis shorts and tennis shoes, was walking from the campus along the side of a public sidewalk to the tennis courts some distance from the school and in so doing fell into a defective water meter box upon which was located a metal cover, which was approximately nine and one-half inches from the edge of the sidewalk in what is commonly known as the parking. This action was brought against the city charging it with negligence.
Insofar as is material herein the petition alleges:
“4. That said street was defective and said defendant negligently failed to provide and keep said street in a reasonably safe and suitable condition for the use of the public as a way of travel and of the plaintiff in particular in this, to-wit:
“(a) That at all times material hereto defendant owned, operated, maintained and controlled a water system. Said system included a meter, meter box or container, and cover installed by said city in the parking at 1525 Merchant Street, Emporia, Kansas. Said meter box and the sides thereof were made of tile and the meter box cover, approximately 16 inches in diameter, was made of metal. Said meter box or container was buried in the ground with the top or metal cover thereof approximately flush with the surrounding area and said metal cover constituted the surface of the street at such place. Said meter box or container was approximately 9% inches east of the sidewalk on the west side of Merchant Street.
“(b) That dining all of the times material hereto said meter box or container was damaged, cracked and broken and did not provide adequate and proper support for the metal cover provided as surface of the street.
“(c) That such condition had existed from on and prior to August 25, 1955, to the date of injury hereinafter alleged and by the exercise of ordinary diligence could have been discovered by said defendant and said defendant knew or should have known of such defective condition in said street. That on or about August 25, 1955, notice was given to the defendant through its then City Clerk of the condition of said meter box or container and through other agents, servants and employees, the names of whom are not known to plaintiff but well known to defendant, said defendant had actual knowledge of such defective condition. That although there was adequate time to do so prior to the injury hereinafter alleged, the defendant failed and neglected to repair the same and to put said street in a reasonably safe and suitable condition for use of pedestrian travel.
“5. That on or about October 7, 1955, at about 10:00 o’clock a. m. thereof, plaintiff was a student in the Kansas State Teachers College, at Emporia, Kansas, and was one of several students in a tennis class, and was wearing tennis shorts and tennis shoes walking northward on Merchant Street in said Emporia, Kansas, from the College Gymnasium of said College to tennis courts located at or near the intersection of Merchant Street and Eighteenth Avenue in said City of Emporia.
“6. That at said time and place while walking northward as aforesaid plaintiff stepped on said metal cover and as he did so said metal cover and the damaged, cracked and broken tile under the same gave way and permitted his left leg to fall into and upon said meter box and container, as a result of which he received the bodily injuries hereinafter set out and described.”
The petition further alleged that written notice was given to the defendant within three months as required by law; that the negligence of the defendant was the direct and proximate cause of injuries received by the plaintiff; and then set forth his damages by reason of the injuries sustained.
The defendant demurred to the petition of the plaintiff on the ground that it did not state facts sufficient to constitute a cause of action against The City of Emporia, and the lower court sustained the demurrer.
The only question before this court for review is whether the trial court erred in sustaining the defendant’s demurrer to the plaintiff’s petition.
On facts somewhat similar to those presented in the above petition this court has had many cases. In some cases the petitions have been held valid, and in others they have been held not to state a cause of action. An effort will be made to review most of these cases to clarify the underlying reasons why in one instance a petition is held to state a cause of action and in another is held to be defective.
The plaintiff cites and relies on Potter v. City of Coffeyville, 142 Kan. 183, 45 P. 2d 844, where the factual situation alleged is almost identical to the instant case. In that case a pedestrian passing along a sidewalk stepped upon a concrete lid covering a water meter, located near the sidewalk. The lid gave way causing her to fall and receive injuries. A demurrer to the petition was overruled. The decision in the Potter case turned upon specific considerations then before the court which are not material herein. The defendant there sought by a motion to make definite and certain to force the plaintiff into pleading contributory negligence. The defendant did not appear upon presentation of the motion and when the petition was later attacked by a demurrer, this court held that defendant had virtually abandoned his original motion which was overruled. As there presented the defendant admitted at the hearing that the cause of action was properly stated in the petition unless his motion which had been overruled was carried over to the demurrer. We must therefore ignore the Potter case as a precedent for the point herein presented.
To orient our thinking it will be well to review some of the basic legal theories with which we are dealing. Justice Wedell, speaking for the court in Perry v. City of Wichita, 174 Kan. 264, 255 P. 2d 667, said:
“. . . Before considering our own cases it should be frankly conceded there is considerable divergence of opinion among courts and textwriters relative to whether certain activities of cities constitute governmental functions or functions interchangeably referred to as proprietary, corporate and municipal. Some difference of opinion also obtains concerning the liability of cities when exercising either function. It would constitute a futile effort to attempt to harmonize the decisions as different courts have reached contrary conclusions on the same or highly similar facts . . .” (p. 268.)
In the Perry case the Kansas law, amply supported by authorities, was reviewed as follows:
“That a city, the same as an individual, is liable in damages for its negligent or wrongful acts when performed in a proprietary capacity is firmly established. The general rule, however, in this state, is that a city is not liable for negligent acts of its officers or employees when acting in the performance of governmental functions, absent a statute expressly imposing liability . . . The rule is based on the doctrine that the state is not liable except as made so by statute and that municipalities, governmental subdivisions of the state, when acting in a governmental capacity are arms of the state.
“Exceptions to the general rule have been recognized where the city’s conduct results in creating or maintaining a nuisance . . . An exception to the general rule also has been recognized with respect to defects in public streets on the theory they are necessary for the public use at all times and under all conditions . . .
. . Decisions holding that ordinarily the construction and maintenance of sewers constitute governmental functions must not be confused with the decision in Smith v. Kansas City, supra, [158 Kan. 213, 146 P. 2d 660] in which a sewer was indirectly involved and in which the city was held liable. As clearly indicated in that case, although the catch basin which had a defective lid was connected with the city sewer system, the catch basin was located in a portion of the street. Liability was there predicated on the ground the injury was caused by a defect in the street.” (pp. 268, 269, 270.)
Relative to the duty which rests upon a city to maintain its streets, the cases hold that there is no general duty upon a city to respond in damages for failure to repair slight defects or imperfections, which as a matter of law are not actionable. (McCollister v. City of Wichita, 180 Kan. 401, 304 P. 2d 543; Biby v. City of Wichita, 151 Kan. 981, 101 P. 2d 919, and cases cited therein.) The cases likewise support the doctrine that cities should not be held to the same degree of care in maintaining parkings or parkways as they are in maintaining sidewalks and streets. Parkings or parkways are not classed primarily as public thoroughfares. While it is difficult, and perhaps impossible, to lay down a definite rule covering the degree of care required in maintaining the parkings or parkways, this court has not adopted a broad rule absolving a city from all liability. (Gilmore v. Kansas City, 157 Kan. 552, 142 P. 2d 699.) In each case all of the particular facts and circumstances must be considered.
The term “street” as commonly used denotes a public thoroughfare or highway in a city or village. In.its broad sense, as used herein, the street embraces the- entire public easement, including the sidewalk and parking or parkway. Thus, when the term is generally used in connection with the city’s duty to maintain the streets, it is used in the broad sense. In dealing with a specific situation the obligation of a city is predicated upon its duty to the public on the particular component part of the street under consideration.
The cases in point dealing with defects in the city streets are presented on two different theories. Where the defect consists primarily in street maintenance the liability is predicated on the duty of the city to maintain its streets in a safe condition for the public use at all times and under all conditions. The other theory predicates liability on the city for activities which it conducts and performs in a proprietary capacity such as the maintenance and operation of waterworks facilities and electric light plant facilities.
The plaintiff urges that if this court should determine there is no liability on the part of the defendant city because of a defective street, then the defendant is liable in its private or proprietary capacity for its negligence in maintaining a defective meter box as a part of its waterworks system. We pause to note that plaintiff alleged written notice was given to the defendant city within three months after the accident as required by law; therefore, any dis tinction in the two theories of liability on the ground of notice is immaterial to a decision herein. Failure to give notice was material in Harms v. City of Beatrice, 142 Neb. 219, 5 NW 2d 287; see, also, 142 A. L. R. 239.
The position urged by the plaintiff implies that the obligation of a city in its proprietary function is greater than its obligation in the maintenance of a street. We see no sound basis for making such distinction. The liability of a city for negligent conduct is founded upon the well-known legal standards of conduct known in,the law of negligence. The city has a legal duty to use that degree of care, caution, diligence and skill as common prudence directs for the protection of members of the public from injury. The failure of such -duty in an ordinary and natural sequence which causes unintended injury to a member of the public gives rise to liability in; an action for negligence.
To say that common prudence directs a definite standard in the law of negligence concerning the liability of a city in the maintenance of its streets and another standard for the liability of a city in the maintenance of its waterworks facilities would be to burden the law with unnecessary distinctions and prove untenable, particularly where on a given set of facts and circumstances the results would be inconsistent depending upon which of the two theories was applied.
Turning our attention now to the various elements considered by this court in cases analogous on the facts which touch upon defects in the city streets, we shall endeavor to show the underlying principles which indicate why in certain instances a petition has been held valid and why in others it has not been so held.
Cases in point in which the liability of a city has been determined in connection with its duty to maintain the public streets are Dargatz v. Dodge City, 151 Kan. 747, 100 P. 2d 680; Register v. City of Pittsburg, 139 Kan. 753, 33 P. 2d 173; Mead v. City of Coffeyville, 152 Kan. 799, 107 P. 2d 711; Smith v. City of Emporia, 169 Kan. 359, 219 P. 2d 451; McCollister v. City of Wichita, supra; Kirkham v. Kansas City, 89 Kan. 651, 132 Pac. 160; Klipp v. City of Hoyt, 99 Kan. 14, 160 Pac. 1000; Smith v. Kansas City, 158 Kan. 213, 146 P. 2d 660; and Hack v. City of Pittsburg, 145 Kan. 383, 65 P. 2d 580.
In Gilmore v. Kansas City, supra, the opinion refers to the liability of a city in its proprietary capacity and also speaks of the city’s liability relative to its maintenance of the public streets. In its proprietary capacity the city was said to be bound to the same degree of care in maintaining an electric light. system, which it operated, as a privately-owned public utility, citing Webb v. City of Oswego, 149 Kan. 156, 86 P. 2d 553. In the case of Potter v. City of Coffeyville, supra, the petition was couched throughout as one charging liability against the city in its proprietary capacity, although, as heretofore noted, the case was decided on another ground.
The defendant contends that the cases on this subject may be distinguished by a consideration of four factors, among others, and urges that the accident in the case at bar is alleged to have arisen in broad daylight, hence no cause of action is stated. These factors enumerated by the defendant are:
“1. Was it daylight or darkness?
“2. Was the parking customarily used by pedestrians?
“3. Was there any necessity or any excuse even for the pedestrian to walk across the parking?
“4. Was the obstruction or defect concealed or was it in plain sight?”
While it is true that these factors have been considered together with all the other facts and circumstances in a given case, it is difficult to analyze the cases on the basis of these factors alone and come to a rational conclusion.
■ This court in Dargatz v. Dodge City, supra, was dealing with a depression in a portion of the parkway between the sidewalk and the curb which was surfaced with sand and gravel. The depression was five to seven inches deep and about fifteen inches wide by two feet long. It was described as a washout caused by water from rain or snow. There the plaintiff was injured at about 10:00 o’clock p. m., where the street was dark and insufficiently lighted, on a busy street where many cars were usually parked during the days and evenings and at a place where persons ordinarily walked across the parking. In sustaining a demurrer to the petition of the plaintiff this court said:
“. . . The plaintiff had no right to expect the parking to be in as safe a condition as was the walk. The city is held to a high degree of care as to sidewalks, but to hold it to the same degree of care as to [a] parking would place a burden upon cities with which they would not be able to cope. Sidewalks are made of concrete or brick, while the parkings are of sod or earth, or, as in this case, sand or gravel. At any rate, they are more vulnerable to the ravages of weather — such as the washing caused by rain or snow — than are sidewalks or cross walks. It will not do to make the city the insurer of the safety of everyone who uses the parkings to get to or go from his car. There must be negligence on the part of the city in order to make the defect an actionable one. We cannot hold that to permit a place such as is described in this petition to exist was negligence.” (p. 749.) (Emphasis added.)
Again in the case of Register v. City of Pittsburg, supra, the court held in sustaining a demurrer to the evidence of the plaintiff that it was not actionable negligence against the city where a girl ten years of age stepped up on a curb to cross a parkway covered by grass which was not intended for foot travel, the curb being defective in that it contained a depression one and one-fourth inches deep by six inches long which had scaled off, thereby causing the girl to fall. After citing a number of cases this court there said:
“While the cases cited authorize a recovery under the facts, they also recognize that there are degrees of care to be exercised, and right of recovery varies according to the place where the accident occurred, and what the duties of the city were as to keeping such places safe for travel, and the use that might be expected to be made by users of certain parts of the street. The same care is not to be expected by people who are angling across the street over a curb and parkway as in places set apart for travelers, like sidewalks and crosswalks.” (p. 754.) (Emphasis added.)
Likewise an iron stake five inches high and about one-fourth inch in diameter located in the parkway between the sidewalk and the curb was held in Mead v. City of Coffeyville, supra, not to be actionable negligence against the city. At this particular location the plaintiff was a customer parked in front of a fish market and crossed the parkway tripping over the iron stake in broad daylight. Under all the facts and circumstances alleged, particularly in view of what the petition did not allege, failure of the city to discover the stake was not negligence.
This court again held that a city was not negligent in Smith v. City of Emporia, supra, where a pedestrian slipped on debris and fell into a drain on the edge of a city street, where the plaintiff did not follow the sidewalk and normal crosswalk provided in attempting to cross the street. The basis for the ruling in this case was that the city was not held to the same degree of care in maintaining the portion of its streets used for vehicular traffic in a safe condition for pedestrians as it would be in the case of sidewalks.
In Gilmore v. Kansas City, supra, it was held that plaintiff had presented sufficient evidence to withstand a demurrer when plaintiff fell into a hole twelve to fourteen inches in diameter and about two and one-half feet deep, the rim of which consisted of rough cement, where the hole was more or less obstructed by grass and weeds in a narrow parkway three to four feet wide. At the time of the accident it was dark and the location was in a busy downtown business area where cars were frequently parked and pedestrians crossed the parkway. There was evidence that the hole was caused by the removal of an electric light pole by the city operating a public utility in its proprietary capacity, although the basis of the ruling was not that the city was operating in its proprietary capacity since the decision quotes also cases concerning the obligation of a city to maintain its streets. The direct basis of the ruling in this case was that the court regarded the hole as a serious defect and not a slight one, at least, sufficient under all the facts and circumstances to permit the case to go to a jury on the ground of negligence.
In McCollister v. City of Wichita, supra, under congested traffic and parking conditions, .a petition was held to state a good cause of action for injuries received by the plaintiff in tripping over an irregular depression three and one-half inches deep and three feet in diameter in the gutter of the street. The accident occurred at night and the defect was hidden by deep shadows without any warning lights or device at the location of the defect. The accident occurred at a place where pedestrians customarily and ordinarily traveled in alighting from vehicles and going to them. The case was distinguished from Smith v. City of Emporia, supra, on the ground that the City of Wichita was bound to anticipate that pedestrians would walk at the place of this particular defect, and was thereby responsible for a higher degree of care than was the city in the Smith case.
In the case of Kirkham v. Kansas City, supra, a pathway had been made by cutting weeds from a tent on adjacent property across the parkway to the sidewalk. It was there held that the evidence was sufficient to go to a jury where the plaintiff was injured by falling from the parkway to the sidewalk which was twelve to eighteen inches below the ground level on a dark night where no lights, barriers or other means of warning were given. Numerous persons used this pathway and the court there said in 1913 after reviewing many decisions: '
“These citations are sufficient to support the doctrine that a city must use reasonable care to keep its streets and' sidewalks safe for travel, the kind and degree of care and precaution differing with different circumstances and conditions. And, having full power to prevent or abate nuisances, it must use proper care to keep its highways, safe although the peril consist of places or things not upon the street but dangerously .near on private property. In deed by no other rule would the public be safe in using the streets, for persons living or being in a city have the right to traverse its streets and sidewalks without being required to examine them and their surroundings to ascertain whether passage over them is likely to endanger life or limb. This being true, by so much the more must the municipality guard dangerous places several feet inside the street line when there is reason to believe that numerous persons are using or likely to use the street in. attempting to cross such places.” (pp. 660, 661.) (Emphasis added.)
Under the circumstances in the case of Hack v. City of Pittsburg, supra, the plaintiff had no other place to walk except on the street, and it was there held that the city was guilty of actionable negligence for permitting a hole to exist in the cinder street where the plaintiff walked.
It is important to note throughout all of these cases reviewed that at no place was contributory negligence on the part of the pedestrian a factor which affected the decision of the court where the petition was held to be defective. The basis of liability was determined solely on whether or not, under all the facts and circumstances of the given case, the city was guilty of actionable negligence. In the case of Potter v. City of Coffeyville, supra, an attempt was made by the defendant, through a motion to make definite and certain, to force the plaintiff to plead contributory negligence. There the motion to make definite and certain was overruled. This cannot be done by a motion to make definite and certain. Contributory negligence is an affirmative defense and must be pleaded by the defendant unless it affirmatively appears from the face of the petition that the plaintiff, as a matter of law, is guilty of contributory negligence. (Noel v. McCaig, 174 Kan. 677, 258 P. 2d 234; Clark v. Hildreth, 179 Kan. 243, 293 P. 2d 989.)
In Klipp v. City of Hoyt, supra, a pedestrian on a dark rainy night, when the street lamps were not lighted, fell from the sidewalk into the street which was fifteen inches lower. In reviewing a demurrer to the evidence it was stated:
“. . . a pedestrian may use a defective street or sidewalk, knowing its condition, without being guilty of contributory negligence, and may do so after dark. The question always is, whether or not under all the circumstances the pedestrian exercised due care.. In this case the question was properly submitted to the jury.” (p. 18.)
The four factors advanced by the defendant in the form of questions, whereby it urged the cases could be distinguished, as a group focus attention upon the conduct of the plaintiff, a pedestrian. As such, they are designed primarily to inject contributory negligence into these cases. This is not consistent with the law of the cases herein reviewed. Only the second question put by the defendant is wholly free from this objection.
An attempt to summarize the law presented by the cases herein reviewed would only lead to confusion, since in each case all of the particular facts and circumstances must be considered. We find these cases consistent with each other in their application of the general law of negligence and adhere to them. Generalized statements of the law have been emphasized throughout this opinion as they apply to the facts of the particular case reviewed.
The element of notice to the city of a defect in cases of this type cannot be overlooked. In the instant case the allegations in the petition are sufficient to impart knowledge of the defect to the city. In some cases it is not as simple. It was stated in Gilmore v. Kansas City, supra:
“Did the city 'have notice of the defect? . . . the general rule is that actual notice is not required where the defect was caused by the city itself or by persons for whose acts it is responsible. Perhaps it would be more accurate to say that in such cases notice is implied. (25 Am. Jur. 729; 50 A. L. R. 1193; 43 C. J. 1042; Tepfer v. City of Wichita, 90 Kan. 718, 721 et seq., 136 Pac. 317.) Furthermore, assuming that the hole was caused by the removal of an electric light pole and inadequate provision to take care of it, it would be hard to say that tire jury could not reasonably conclude from the evidence that the hole had been there a sufficient time to give constructive notice.” (pp. 556, 557.)
The principal case upon which the defendant relies is Mast v. City of Galena, 168 Kan. 628, 215 P. 2d 152. The defendant asserts that if the petition in the instant case is held good, it will be necessary to overrule the Mast case. Let us see. The allegations of the two petitions are very similar in many respects. They both allege a dangerous and defective condition existing in the parking between the sidewalk and the street. Roth involve a covering over a water meter. In the Mast case the petition alleged that about 7:30 o’clock p. m. on the 19th day of October, 1942, the plaintiff walked from the curb to the sidewalk which ran parallel with the street, and as she neared the sidewalk she stepped on a thin and worn-out tin lid covering a water meter hole about eight feet distant from a perpendicular crosswalk leading from the street to the principal sidewalk. The location of this particular defect was some distance from the busy part of town, being in front of 911 Short Street in the City of Galena. The petition further alleged that as the plaintiff put her weight on the lid, it was insufficient in strength and so worn and defective that it gave way and dropped her into the hole so that she was injured, and further alleged that the defective condition of the street at the place in question was dangerous for public travel because of the negligently maintained water meter hole which was improperly protected and insufficiently covered. The petition alleged that the city had knowledge of the dangerous condition.
The customary use made of the parking by pedestrians in the instant case is a distinguishing factor. In the Mast case the location of the defect was at a place where it was unlikely that pedestrians would use the parking as a place to walk, there being provided a specific small crosswalk for pedestrians just eight feet from the place where the plaintiff received her injuries.
In the instant case the location of the defective meter box was near the Kansas State Teachers College at Emporia, Kansas, and located on a route directly between the college and the tennis courts, which students used regularly. The location of the lid to this defective water meter box was a mere nine and one-half inches from the edge of the sidewalk, and the plaintiff was walking parallel to the sidewalk and on the parking at the time he suffered his injuries by stepping onto the lid of the water meter box which gave way from beneath.
The plaintiff’s petition in the instant case must be liberally construed, there having been no attack made against it by a motion to make definite and certain or to strike. The petition describes the meter box cover as “made of metal.” Permissible is the construction that this was possibly a solid cast iron metal cover, the type which is frequently placed over water meter boxes, and of sufficient strength to support persons who may walk on it. The petition further alleges that this lid was flush with the surrounding area and the said metal cover constituted the surface of the parking at the particular place of its location. The metal cover was in these respects an invitation to pedestrians using the sidewalk in groups to use the meter box lid as a surface upon which to walk. The allegations of the petition liberally construed show that the meter box was apparently stable when observed by a pedestrian, but was actually an unstable cover and in reality a trap, the defect being concealed beneath its surface where the tile was damaged, cracked and broken and did not provide adequate and proper support for the cover.
The allegations of the petition in the instant case further disclose that the City of Emporia did have knowledge of the existence of this defective condition approximately six weeks prior to the date of the accident.
Under these facts and circumstances the city was bound to anticipate that groups of pedestrians would regularly and customarily travel at the particular place of this serious defect on the sidewalk and parking adjacent thereto. It is thereby charged with a higher degree of care and a greater duty to guard against such serious defect. Under the averments of the petition its failure to exercise that degree of care,- caution, diligence and skill that common prudence directs constitutes actionable negligence.
We have little difficulty in concluding that the petition states a cause of action against the defendant under either theory advanced by the plaintiff, and since the liability for negligence under either theory would be identical, it is unnecessary to further burden this opinion.
The decision of the lower court sustaining the demurrer to the petition hereby is reversed with directions to proceed in accordance herewith.'
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